2015 (2) TMI 324 - AT - Income Tax

Advances from transport department - Accural of income - Assessee has shown as Current Liabilities - AO treated as income under P&L Account - CIT(A) deleted the addition - assessee contended that the amount was held in fiduciary capacity and was in the nature of liability as no services against this advance were rendered in the year under consideration. - Held that - Revenue could not bring any material before us to show that the expenses of more than ₹ 14,83,508/- was incurred by the assessee during the year under consideration in respect of the project under consideration. The AO has simply stated that the expenses of the project must have been debited in the Profit & Loss account, but failed to point out any expenses, which were related to the project in question, which was debited in the profit & loss account. In the absence of any such findings, the assessment was made merely on the basis of suspicion or guess-work without any concrete facts brought on record and such assessment is unsustainable. We, therefore, do not find any good reason to interfere with the order of the CIT(A), which is confirmed, and the ground of the appeal of the Revenue is dismissed. - Decided against revenue. Disallowance of deduction under section 80IA - profit derived from internet telephony service business - AO did not accept the claim for want of audit report in prescribed Form No.10CCB - Held that - Hon ble Madras High Court in the case of CIT Vs.Medicaps Ltd., (2010 (1) TMI 261 - MADHYA PRADESH HIGH COURT) held that furnishing of audit-report for claim of deduction under section 80IA of the Act was not mandatory and the same can be filed even at the appellate stage. Still further, the Hon ble Apex Court in the case of Aurangabad Electricals Ltd vs Commissioner Of Central Excise & Customs, (2010 (11) TMI 8 - Supreme Court of India) observed that keeping in view the well settled principles laid down by this Court that technicalities should not defeat rendering of complete justice to a litigant, and remanded the matter to the Tribunal to verify and consider whether the certificate which is already placed on record by the appellant, would assist them in support of their defence. In view of the above decisions, as the audit report in Form No.10CCB was filed before the CIT(A), in our considered view, it shall be just and fair and in the interest of justice to restore this issue back to the file of the AO to readjudicte the issue after taking into consideration the audit report in Form No.10CCB filed belatedly by the assessee, and after examining all the aspects of the matter, in accordance with law. - Decided in favour of assessee for statistical purposes.

Summary

Issues Involved:
1. Deletion of addition made on account of advances from the transport department treated as income.
2. Disallowance of deduction under section 80IA due to non-filing of Form 10CCB.
3. Validity of the license for internet services.
4. Possession of requisite plant and machinery for internet telephony business.
5. Applicability of section 80IA(10) regarding reasonable profits from eligible business.

Issue-wise Detailed Analysis:

1. Deletion of Addition Made on Account of Advances from Transport Department Treated as Income:
The Revenue appealed against the deletion of Rs. 3,08,47,120/- added as income by the AO. The AO observed that the assessee showed Rs. 3,77,85,913/- as advances from customers under "Current Liabilities" and concluded that Rs. 3,08,47,120/- received from the transport department should be recognized as income since the work was completed satisfactorily. The CIT(A) deleted the addition, noting that the assessee's accounts were audited by various agencies and the income was recognized based on work completion. The Tribunal upheld the CIT(A)'s decision, finding no evidence that the expenses related to the project were debited in the Profit & Loss account, thus confirming the deletion of the addition.

2. Disallowance of Deduction Under Section 80IA Due to Non-Filing of Form 10CCB:
The assessee's appeal challenged the disallowance of Rs. 1,56,59,743/- under section 80IA due to non-filing of Form 10CCB. The CIT(A) upheld the AO's decision, citing the mandatory nature of filing the audit report. The Tribunal, referencing various judicial decisions, noted that filing the audit report before the completion of assessment suffices and remanded the issue back to the AO to reconsider the deduction after accepting the belatedly filed Form 10CCB.

3. Validity of License for Internet Services:
The AO noted that the assessee lacked a valid license for internet services from 01/07/2004 to 25/07/2007, potentially disqualifying the deduction under section 80IA. The CIT(A) found that the principal license agreement was never revoked or canceled, and the business was validated upon renewal. The Tribunal agreed with the CIT(A) that the deduction cannot be denied on this basis.

4. Possession of Requisite Plant and Machinery for Internet Telephony Business:
The AO questioned the assessee's possession of necessary equipment for internet telephony, noting major equipment was owned by GSPC Ltd, and the revenue-sharing arrangement was skewed favorably towards the assessee. The CIT(A) acknowledged the close connection between GIPL and GSPC Ltd but found the AO failed to work out reasonable profits. The Tribunal directed the AO to rework the profits derived from eligible business on a reasonable basis but noted this became academic as the primary issue was remanded.

5. Applicability of Section 80IA(10) Regarding Reasonable Profits from Eligible Business:
The AO invoked section 80IA(10), alleging the business arrangement between GIPL and GSPC Ltd resulted in more than ordinary profits. The CIT(A) partially agreed but directed a reworking of profits based on a reasonable revenue-sharing arrangement. The Tribunal, having remanded the primary issue of deduction under section 80IA, directed the AO to re-examine all aspects, including the applicability of section 80IA(10), ensuring a comprehensive review.

Conclusion:
The appeal of the Revenue was dismissed, and the appeal of the assessee was allowed for statistical purposes, with directions to the AO to re-examine the issues considering the belatedly filed audit report and all relevant aspects in accordance with the law.