2016 (11) TMI 449 - AT - Income Tax

Revision u/s 263 - eligibility for deduction u/s 80IA - Held that - In the given facts and circumstances of the case, Assessing Officer was having two legal possible views of either treating the assessee as a developer or a works contractor and on the basis of details available, ld. Assessing Officer treated the assessee as a developer eligible for deduction u/s 80IA of the Act. In view of this, it can be said that the assessment u/s 143(3) of the Act is neither erroneous nor prejudicial to the interest of Revenue. Accordingly, we disagree with the finding of ld. CIT and set aside his order u/s 263 of the Act and restored the assessment order u/s 143(3) of the Act. Therefore issue raised in this appeal is decided in favour of assessee. Accordingly, the appeal of assessee is allowed. Deduction under section 80-IA - Held that - Assessee is not merely a contractor but a developer looking to the scope of activities undertaken by it for the completion of the project and, therefore, eligible for deduction u/s 80IA of the Act. Disallowance of business loss - Held that - From going through the observation of ld. CIT(A) we find that impugned transaction of giving bank guarantee to Rajkamal Builders was in the course of business for carrying out of the contract for construction of water treatment of GWSSB & ADB and amount of ₹ 17,77,540/- was outstanding to be received has been claimed as business loss as there was no possibility to recover the same. However, these facts could not be proved by the assessee with the support of necessary documents. Ld. AR has made a request for setting aside the issue for examination to which ld. DR did not object. Therefore, we set aside this issue to the file of Assessing Officer for the purpose of verification of necessary evidence/documents which will be submitted by assessee. Disallowance u/s 2(24)(x) r.w.s. 36(1)(va) of the Act towards non-payment of employees contribution to the Government- Held that - CIT(A) has rightly disallowed the expenditure of employees contribution to P.F. deposited after the due date

Issues Involved:
1. Validity of the order under Section 263 of the Income Tax Act.
2. Allowability of deduction under Section 80IA of the Income Tax Act.
3. Treatment of interest earned on bank FDRs for deduction under Section 80IA.
4. Disallowance of business loss claimed by the assessee.
5. Disallowance of employees' contribution to PF under Section 2(24)(x) read with Section 36(1)(va).

Issue-wise Detailed Analysis:

1. Validity of the order under Section 263 of the Income Tax Act:
The assessee challenged the order passed by the Commissioner of Income Tax (CIT) under Section 263, which held that the assessment order was erroneous and prejudicial to the interest of revenue due to the wrongful allowance of deduction under Section 80IA. The Tribunal observed that the Assessing Officer (AO) had conducted proper inquiries and verification during the assessment proceedings and had taken one of the possible legal views by treating the assessee as a developer eligible for deduction under Section 80IA. The Tribunal referenced multiple judicial precedents, including the Hon. Jurisdictional High Court in the case of Principal CIT vs. Shri Prakash Bhagchand Khatri, and concluded that the AO's order was neither erroneous nor prejudicial to the interest of revenue. Therefore, the Tribunal set aside the order under Section 263 and restored the original assessment order.

2. Allowability of deduction under Section 80IA of the Income Tax Act:
The Tribunal examined whether the assessee, engaged in designing, constructing, commissioning, and maintaining water treatment plants, qualified as a developer eligible for deduction under Section 80IA. The Tribunal referenced several judicial decisions, including the Hon. Delhi High Court in the case of CIT vs. Ansal Housing & Construction Ltd., and concluded that the assessee's activities met the criteria of a developer rather than a mere works contractor. The Tribunal upheld the CIT(A)'s decision allowing the deduction under Section 80IA for the relevant assessment years, dismissing the Revenue's appeals on this ground.

3. Treatment of interest earned on bank FDRs for deduction under Section 80IA:
The assessee contested the exclusion of interest earned on bank FDRs from the profits eligible for deduction under Section 80IA. The Tribunal noted that the assessee did not press this ground during the hearing, leading to the dismissal of this ground in both appeals for the relevant assessment years.

4. Disallowance of business loss claimed by the assessee:
The assessee claimed a business loss of ?17,77,540 due to an outstanding amount from Rajkamal Builders. The CIT(A) disallowed the claim, stating that the loss was not substantiated with evidence. The Tribunal, upon the assessee's request, set aside this issue to the AO for verification of necessary evidence supporting the claim of business loss, allowing the cross-objection for statistical purposes.

5. Disallowance of employees' contribution to PF under Section 2(24)(x) read with Section 36(1)(va):
The Tribunal addressed the disallowance of employees' contribution to PF deposited after the due date. The Tribunal referenced the judgment of the Hon. Jurisdictional High Court in the case of CIT vs. Gujarat State Road Transport Corporation, which upheld the disallowance of such delayed payments. Consequently, the Tribunal dismissed the assessee's appeal on this ground.

Conclusion:
The Tribunal allowed the assessee's appeals regarding the validity of the order under Section 263 and the allowability of deduction under Section 80IA, dismissing the Revenue's appeals on these grounds. The Tribunal dismissed the assessee's appeals concerning the treatment of interest earned on bank FDRs and the disallowance of employees' contribution to PF. The issue of business loss was set aside to the AO for verification.

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