2018 (7) TMI 125 - AT - Income Tax

Determination of the income of the assessee JV - assessment being made in the hands of assessee JV in the status of AOP - additional ground - Held that - We find that BBF and GIL (members of JV) had formed a consortium to obtain subject mentioned project of construction of bridge in the location stated hereinabove. We find that the consortium was found only for the inter se co-ordination between the members for administrative convenience in the form of fulfilling the eligibility conditions for participation in their tender, based on collective strengths of each of the members of the consortium. We find that each member of the consortium is independently responsible for executing its respective part of the work with its own men, materials, resources, infrastructure, at its own risk. Accordingly, the profit or loss arising from execution of such work would flow individually to the members of the assessee JV. We find that this aspect is being clarified by the Central Board of Direct Taxes vide Circular No. 7/2016 dated 07.03.2016. Thus set aside all these appeals to the file of the ld. AO for determination of income of the assessee JV in the light of the aforesaid circular dated 07.03.2016. We make it clear that all the connected factual and legal issues are left open and the assessee is at liberty to adduce fresh evidences, if any, before the ld. AO in support of its contentions. Accordingly, grounds raised by the assessee and revenue are allowed for statistical purposes.

Summary

Issues:
1. Assessment of income in the hands of the assessee JV as an Association of Persons (AOP).
2. Determination of gross receipts and net profit for the assessment year 2006-07.
3. Admissibility and adjudication of additional grounds raised by the assessee regarding the assessment in the capacity of AOP.

Analysis:

Issue 1:
The primary issue in this judgment revolves around the assessment of income in the hands of the assessee JV as an AOP. The assessee contested that the profit or loss arising from the project should be considered only in the hands of the individual members of the JV, not the JV itself. The Tribunal admitted the additional ground raised by the assessee, citing the decision of the Hon'ble Supreme Court in the case of NTPC Ltd. The Tribunal analyzed the facts and clarified that the consortium formed by the members of the JV was for administrative convenience and coordination, with each member independently responsible for executing their part of the work. Referring to a CBDT circular, the Tribunal concluded that the income of the assessee JV should be determined in line with the circular's guidelines. Therefore, the Tribunal set aside the appeals for the determination of income by the assessing officer based on the principles outlined in the circular.

Issue 2:
Regarding the determination of gross receipts and net profit for the assessment year 2006-07, discrepancies arose between the assessments made by the assessing officer and the CIT(A). The assessing officer estimated the net profit at 10% of the gross receipts, while the CIT(A) determined it at 4% due to the inclusion of advance portions in the gross receipts. The Tribunal, after considering submissions from both parties, upheld the CIT(A)'s decision to calculate the net profit at 4% of the gross receipts, thereby rectifying the initial assessment made by the assessing officer.

Issue 3:
The Tribunal also addressed the admissibility and adjudication of additional grounds raised by the assessee, emphasizing that the additional ground did not require fresh investigation of facts. By admitting the additional ground, the Tribunal delved into the core issue of the assessment being made in the hands of the assessee JV as an AOP. The Tribunal's decision to allow the grounds raised by both the assessee and the revenue for statistical purposes further clarified the assessment process and provided directions for the future determination of income for the assessee JV.

In conclusion, the judgment tackled complex issues surrounding the assessment of income in the context of a joint venture, emphasizing the individual responsibilities of consortium members and the correct application of tax principles outlined in relevant circulars and judicial precedents.