2023 (12) TMI 971 - AT - Income Tax

Deduction u/s 80IA (4) - Contractor v/s Developer - assessee, a public limited company, is engaged in the business of development of infrastructure and other projects i.e., irrigation canal, road construction, water sewerage system etc. - AO held that the assessee, in the development of infrastructure project worked as work contractor and not as developer for which it received time to time payment from Government authorities for the work executed and invoice were accordingly issued, thus disallowed the claim of the assessee - HELD THAT - Admittedly, the assessee has claimed deduction u/s 80IA(4) on 13 different projects of infrastructure facilities which has been disallowed by AO. On appeal by the assessee, CIT(A) allowed the claim of deduction by following the order of the predecessor CIT(A) in own case of the assessee from A.Y. 2004-05 to 2011-12 and 2013-14. CIT(A) also given categorical finding that there were no new projects. As such, the deduction on all the 13 projects were claimed in earlier years (in between 2004-05 to 2011-12). At the outset, we note that the revenue was in appeal before this tribunal in own case of the assessee on the same issue in A.Ys. 2008-09 to 2011- 12 2023 (7) TMI 1081 - ITAT AHMEDABAD The coordinate bench of this tribunal vide order dated decided the issue of deduction under section 80IA(4) of the Act in favour of the assessee stating if the literal meaning is drawn from the word of the developer and accordingly the deduction of the benefit given under section 80 IA of the Act is denied, then the object for which the provisions of section were brought under the statute will be defeated. Therefore, the provisions of section 80IA (4) of the Act should be read in such a way that the object of the statute should not be defeated. As assessee has undertaken the projects of infrastructure facility as envisaged under the provisions of section 80 IA(4A) of the Act in the capacity of the developer, we are inclined to hold that the assessee who is only engaged in the activity of development of infrastructure facility is eligible to claim the deduction u/s 80IA(4). Decided against revenue. Additional income offered in the survey proceedings - CIT(A) held that additional income was agreed to be offered on account of unverifiable business expenses therefore the business income will stand increase by such amount on which the assessee will be eligible to claim deduction u/s 80IA - HELD THAT - We find that the addition of ₹18 crores was made on account of unverifiable expenses which were recorded in the books of accounts. As such, the expenses recorded in the books of accounts to the tune of ₹18 crores were not supported by the proper documentary evidence. Therefore, the assessee agreed to disclose such income in the income tax return. Admittedly, the addition made on account of unverifiable expenses is going to enhance the income of the assessee. Admittedly, the assessee has two categories of the project being eligible and non-eligible for deduction for deduction under section 80 IA(4) of the Act. Undeniably, the income of both the category of the project being eligible and non-eligible will enhance but the deduction under section 80 IA(4) of the Act on account of enhancement of income will be limited to the eligible projects as also observed by the ld. CIT-A in his order. Thus, we do not find any reason to interfere in the finding of the learned CIT-A. Hence, the ground of appeal of the revenue is hereby dismissed.

Summary

Issues Involved:
1. Deduction under Section 80IA(4) of the Income Tax Act.
2. Enhanced deduction under Section 80IA(4) due to additional income from survey operations.

Summary:

Issue 1: Deduction under Section 80IA(4) of the Income Tax Act

The Revenue challenged the CIT(A)'s decision to allow the assessee a deduction of Rs. 86,52,24,043 under Section 80IA(4) of the Income Tax Act, arguing that the assessee acted as a contractor, not a developer. The AO disallowed the deduction, asserting the assessee executed contract works and received payments accordingly, thus not qualifying as a developer under the amended provisions of Section 80IA. The CIT(A) found that the assessee, a public limited company engaged in infrastructure development, had consistently claimed this deduction in previous years, which was upheld by appellate authorities. The CIT(A) concluded that the principle of consistency and detailed analysis of the agreements confirmed the assessee's role as a developer. The Tribunal upheld the CIT(A)'s decision, noting the assessee met the criteria for a developer and that the explanation to Section 80IA(13) did not apply.

Issue 2: Enhanced Deduction under Section 80IA(4) due to Additional Income from Survey Operations

The Revenue contested the CIT(A)'s decision to allow enhanced deduction under Section 80IA(4) on additional income of Rs. 18 crores offered during a survey operation. The AO had added this income separately, arguing it was not reported in the audited books. The CIT(A) held that this additional income, arising from unverifiable business expenses, increased the business income, making it eligible for the deduction under Section 80IA. The Tribunal agreed with the CIT(A), citing the CBDT Circular No. 37/2016 and the Gujarat High Court's decision in ITO Ward 5(1) vs. Keval Construction, which supported the enhancement of deduction due to increased business profits from disallowed expenses.

Conclusion:

The Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s decisions on both issues, thereby allowing the assessee's claims for deductions under Section 80IA(4) of the Income Tax Act.