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2016 (9) TMI 1445 - AT - Income TaxAssessment u/s 153A - disallowances of the retention money - claim was not made in its original return filed u/s 139(1) - Held that - Assessee had offered the retention money year after year on mercantile basis and assessments framed accordingly - Without the existence of any incriminating materials found during the course of search with regard to the issue of retention money, we are of the considered opinion that the assessments framed already should not be disturbed in section 153A proceedings - relying upon the decision of Hon ble Calcutta High Court in the case of CIT vs Veerprabhu Marketing Ltd 2016 (8) TMI 813 - CALCUTTA HIGH COURT - in the case of regular assessment, the change in stand could be taken by the assessee - thus grounds raised by the assessee in its appeals are dismissed. Deduction u/s 80IA (4) eligibility - whether assessee is a developer or a contractor - Held that - no incriminating materials found during the course of search which would enable the ld AO to take a different stand with regard to the status of the assessee (whether a developer or contractor) - also the claim of deduction u/s 80IA of the Act has been accepted by the revenue u/s 143(3) proceedings and there is no reason to disturb the same in section 153A proceedings without there being any incriminating materials - hence assessee has to be treated only as a developer in the facts and circumstances of the case and not merely as a works contractor, thereby eligible for deduction u/s 80IA - thus ground of revenue is dismissed.
Issues Involved:
1. Taxability of retention money on an accrual basis or receipt basis. 2. Entitlement of the assessee for deduction under Section 80IA(4) of the Income Tax Act. Issue-wise Detailed Analysis: 1. Taxability of Retention Money: Facts and Background: The assessee, a public limited company engaged in civil construction, had credited retention money to its profit and loss account on an accrual basis in its original returns. However, in the returns filed in response to a notice under Section 153A of the Income Tax Act, the assessee offered the retention money on a receipt basis, citing judicial precedents. Arguments and Findings: - The assessee relied on judicial decisions, including CIT vs Ignifluid Boilers (I) Ltd, CIT vs P & C Constructions (P) Ltd, and CIT vs Simplex Concrete Piles (India) Pvt Ltd, to argue that retention money should be taxed upon receipt. - The Assessing Officer (AO) rejected this claim, emphasizing that the assessee had consistently followed the mercantile system of accounting and had not made this claim in the original returns. - The CIT(A) upheld the AO's decision, stating that the assessee could not change the method of accounting in the proceedings initiated under Section 153A, which are meant for the benefit of the Revenue. Tribunal’s Decision: The Tribunal agreed with the CIT(A) and AO, noting that without any incriminating materials found during the search, the assessments framed earlier should not be disturbed under Section 153A proceedings. The Tribunal referenced the decision of the Hon’ble Calcutta High Court in CIT vs Veerprabhu Marketing Ltd and CIT vs Continental Warehousing Corporation (Nhava Sheva) Ltd to support its decision. Consequently, the appeals of the assessee on this issue were dismissed. 2. Deduction under Section 80IA(4): Facts and Background: The assessee claimed deductions under Section 80IA(4) for profits derived from infrastructure projects. The AO initially allowed the deduction for certain projects but denied it for others, labeling them as works contracts rather than development projects. The AO further denied the deduction in the search assessment proceedings under Section 153A, citing the Explanation inserted by the Finance Act, 2007, and substituted by the Finance (No. 2) Act, 2009. Arguments and Findings: - The assessee argued that it was a developer of infrastructure facilities and not merely a works contractor, thus eligible for the deduction. - The CIT(A) examined the agreements and concluded that the assessee was indeed a developer, having carried out comprehensive activities involving technical expertise, manpower, and financial resources. - The CIT(A) also noted that the AO’s reliance on the definition of works contract and the payment of works contract tax was misplaced, as it would unjustly disqualify all enterprises developing infrastructure facilities from claiming the deduction. Tribunal’s Decision: The Tribunal upheld the CIT(A)’s decision, agreeing that the assessee was a developer and not merely a works contractor. The Tribunal referenced the decision of the Hyderabad Tribunal in KMC Constructions Ltd vs ACIT and other judicial precedents to support this view. The Tribunal also noted that no incriminating materials were found during the search to warrant a different stand by the AO. Consequently, the appeals of the revenue on this issue were dismissed. Conclusion: The Tribunal dismissed both the appeals of the assessee and the revenue, maintaining the original assessments and the CIT(A)’s decisions. The Tribunal emphasized the importance of consistency in accounting methods and the necessity of incriminating evidence to alter assessments under Section 153A proceedings.
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