2012 (8) TMI 356 - AT - Income Tax

Dis allowance of deduction u/s 80IA(4) - Held that - The assessee is a work contractor of the Railway department who has executed the contract for supply of materials, trenching, laying, testing, commissioning of 4 quad cables, installation and commissioning of gate, telephones and emergency posts etc. - the nature of the contract is civil which had been assigned by the Railway Department in part of already rail laid and no new railway line or telecommunication system has been executed by the assessee - dis allowance is thus warranted - against assessee. Dis allowance of deduction u/s 80IB(10) - Held that - The appellant is carrying out the project under reference in the capacity of a sub contractor - the land is owned by the Defence Ministry and assessee is mainly work contractor, the construction of house were for the Air Force not for any middle class - The permission of the Municipal Authority in the name of Defence Ministry with no full responsibility of the assessee for execution of the development projects - The assessee had not directly charged collection from the members but payments were received by the assessee from N.B.C.C. for work contract on fixed price - - dis allowance is thus warranted - against assessee

Summary

Issues:
1. Disallowance of depreciation on fixed assets acquired in second sale from associated concerns.
2. Disallowance of deduction under section 80IA(4) of Rs. 27,00,419.
3. Disallowance of deduction under section 80IB(10) of Rs. 31,49,349.
4. Challenge against the assessment completed by the AO without jurisdiction.

Issue 1: Disallowance of Depreciation on Fixed Assets:
The appellant's appeal involved the AO's disallowance of depreciation on fixed assets acquired in a second sale from associated concerns. The AO held the appellant to be a works contractor without financial stake or investment in the project, making it ineligible for deduction under section 80IA. The CIT(A) confirmed this disallowance, citing the amendment in the Explanation below Sub-section (13) of Sec. 80-IA by the Finance Act 2007. The appellant contended that they were providing infrastructure and had agreements with the Railway Department, citing various case laws. However, the tribunal upheld the CIT(A)'s decision, emphasizing that the appellant's contract was civil in nature and did not meet the criteria for deduction under section 80IA.

Issue 2: Disallowance of Deduction under Section 80IA(4):
The appellant contested the disallowance of deduction under section 80IA(4) amounting to Rs. 27,00,419. The AO and CIT(A) both concluded that as the appellant was a works contractor, they were not eligible for the deduction under this section. The appellant argued for eligibility based on agreements with the Railway Department and provisions of the finance bill 2007. However, the tribunal upheld the lower authorities' decision, stating that the appellant's work as a contractor did not align with the requirements for claiming the deduction under section 80IA.

Issue 3: Disallowance of Deduction under Section 80IB(10):
The third ground of appeal pertained to the disallowance of deduction under section 80IB(10) of Rs. 31,49,349. The AO rejected the claim as the appellant did not meet the conditions for deriving income and maintaining separate books of account for claiming deductions under sections 80IA and 80IB(10). The CIT(A) confirmed this disallowance, highlighting an Explanation inserted below sub-section (10) of Section 80IB by the Finance Act 2009. The tribunal, after considering the case law and factual position, upheld the CIT(A)'s decision, emphasizing that the appellant, as a subcontractor, did not fulfill the necessary criteria for claiming the deduction under section 80IB(10).

Issue 4: Challenge Against Assessment Without Jurisdiction:
The appellant challenged the assessment completed by the AO without jurisdiction. However, ground nos. 1 and 4 were dismissed as they were not pursued by the appellant. The tribunal did not find any reason to overturn the CIT(A)'s decision on the assessment, confirming the disallowances made by the lower authorities. The appellant's appeal was ultimately dismissed by the tribunal.

This detailed analysis of the judgment from the Appellate Tribunal ITAT, Ahmedabad, provides insights into the issues raised, the arguments presented, and the final decisions made regarding each issue.