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TMI Blog2017 (11) TMI 1892X X X X Extracts X X X X X X X X Extracts X X X X ..... reinafter referred to as the Act ) vide his order dated 27.12.2010 for assessment year 2005-06. Shri Saurabh Kumar, Ld. Departmental Representative appeared on behalf of Revenue and Shri Ravi Tulsiyan, Ld. Authorized Representative appeared on behalf of assessee. 2. The Revenue has raised the following grounds:- 1. On the fact and circumstances of the case and in law, the Ld. CIT(A) erred by treating the order of the AO as ultra vires and annulling the order of the AO by overlooking the fact that assessee failed to file any objection to the issuance of notice u/s. 148 of the Act within the stipulated time as per the provisions of the ct despite availing ample opportunity by issuing notices. 2. On the fact and circumstances of the case and in law, the Ld. CIT(A) erred by treating the order of the AO as ultra vires and annulling the order of the Assessing Officer by ignoring the fact that if conscious application of mind is made on the relevant facts and material available or existing at the relevant point of time while making assessment and again a different or divergent vie is sought, it would tantamount to change of opinion whereas, in the case of the assessee, no co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee for AY 2007-08 (ITA No.251/Kol/2011 dated 17.01.2014) and based on identical facts allowed deduction u/s 80-IA. Further, the project discussed above, (which covers the entire claim of the assessee u/s 80-IA. Further, the project discussed above, (which covers the entire claim of the assessee u/s. 80-IA) is also covered by the order of the Kolkata Tribunal. Since the issue stands squarely covered in favour of the assessee in its own case for AY 2007-08 for the same project, I do not find any cause to endorse the action of the AO in denying deduction u/s. 80IA to the appellant. In view of the foregoing and on consideration of the submission of the appellant on the issue (supra), the AO is directed to allow deduction as claimed u/s 80IA of the Act. The Revenue, being aggrieved, is in an appeal before us. 6. Before us both parties relied on the order of Authorities Below as favourable to them. 7. We have heard the rival contentions of both the parties and perused the material available on record. At the outset, we find that in the identical issue in respect of project awarded by Konkan railway, the Hon ble Tribunal in assessee s own case has decided the identical issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion to be does not include manufacturing or supplying of a product. according to requirement or specification of the customer by using materials purchased from a person, other than such customer . Thus, with this in mind, a perusal of the turnkey contract agreement entered into by the assessee with the Irrigation Department, Govt of A.P clearly shows that the construction of all the structures of the whole canal system is to be as per approved design, drawings, specifications of the department etc. The survey is to be done as per investigation and designing criteria of the Irrigation Department. This is also as per article 11.1 of the agreement. The assessee is to procure the materials independently and those materials are to confirm to the specifications provided. The assessee is also to make its arrangements for storage of the materials. This is as per article 107 of the agreement. Thus, admittedly the work done by the assessee falls in the exclusion provided to the meaning of the work given in the Explanation to section 194C of the Act. Once it falls outside the meaning of term work for the purpose of section 194C, the question that arises is can it be said that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit to BUT contracts then, the explanation to section 801A(4) of the Act becomes otiose. This is as explanation to section 801A(4) of the Act specifically provides for the road to include a toll road, a bridge or a rail system. BUT contract in respect of the railway system can never exist. Further, a perusal of the provisions of section 801A of the Act shows that the term works contract is not defined in the said section. However, the terms works and contract is defined in the provisions of section 194C of the Act. If a particular word or term is not defined in the specific section then, one could go to other sections in the said Act where the definition would be available to draw a meaning to the said terms. In the provisions of section 194C of the Act, work has been given an inclusive definition but in the subsequent portion it has excluded the manufacturing or supplying a product according to requirement or specification of a customer by using material purchased from a person other than such customer. As has been specified by the Ld. AR, the assessee is doing contract work but that work is according to the requirement and specification of the customer and the same has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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