M/ S Jai Prakash Associates Ltd., ... vs Department Of Income Tax

ITA No.563/LKW/2014 Assessment year:2009-10 A.C.I.T., Vs. M/s Jai Prakash Associates Ltd., Central Circle-II, 5, Park Road, Hazaratganj, Lucknow. Lucknow. PAN:AABCB1562A (Appellant) (Respondent)

Appellant by Shri Anand Kumar Agarwal, C.I.T., D. R. Respondent by Shri B. P. Yadav, Cost Accountant Date of hearing 24/03/2015 Date of pronouncement 29/04/2015

ORDER PER A. K. GARODIA, A.M.

This appeal is filed by the Revenue, which is directed against the order of learned CIT (A)-III, Lucknow dated 22/02/2014 for the assessment year 2009-2010.

2. Ground No. 1 is as under:

"1. That the Ld. CIT (A) has erred in law and on facts in deleting the addition of Rs.1,56,786/- made on account of depreciation of Iraqi assets without appreciating the facts and material brought on record by the Assessing Officer."

3. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that this issue is covered in favour of the assessee by the Tribunal decision in assessee's own case for various assessment years from 2001-02 to 2006-07 and all the Tribunal decisions are available on pages 1 to 84 of the paper book.

2 4. We have considered the rival submissions. We find that this issue was decided by CIT(A) by following the Tribunal orders in assessee's own case for various assessment years. He has also given a finding that there is no change in the facts in the present year. Learned D.R. of the Revenue could not point out any difference in the facts of the present year and therefore, we do not find any reason to take a contrary view in the present year. As per the Tribunal order brought on record by Learned A.R. of the assessee, it was held by Tribunal in earlier years that the compensation received by the assessee is to be brought to the concerned block of assets and the said bock of assets is to be reduced accordingly. This finding of the Tribunal is in line with the provisions of the Act and therefore, we decline to interfere in the order of CIT(A) on this issue. Ground No. 1 is rejected.

5. Ground No. 2 is as under:

"2(a) That the Ld. CIT (A) has erred in law and on facts in deleting the addition of Rs.6,52,16,092/- made on account of depreciation on temporary erections without appreciating the facts and material brought on record by the Assessing Officer.

2(b) That the Ld. CIT(A) has erred in law and facts in treating the project site-offices of the assessee, built of iron, cement and bricks etc. as temporary structures without appreciating that these structures were designed to last for the entire duration of projects which usually take ten to fifteen years for completion."

6. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that this issue is also covered in favour of the assessee by the Tribunal decision in assessee's own case for assessment years 2001-02 to 2006-07, copy of which is available in the paper book.

7. We have considered the rival submissions, perused the material available on record and gone through the orders of the authorities below and 3

the Tribunal orders in assessee's own case for earlier years. We find that CIT(A) has given a clear finding that the issue in dispute is squarely covered in favour of the assessee by the Tribunal order in earlier years in assessee's own case. He has also given a finding that there is no change in the facts of the present year. Learned D.R. of the Revenue could not point out any difference in facts in the present year. As per the Tribunal decision available on record also, we find that in assessment years 2001-02 and 2002-03, the Tribunal has followed earlier Tribunal decision for assessment year 94-95 and 96-97. Hence, it is seen that this issue has consistently been decided in favour of the assessee and no difference in facts could be pointed out by Learned D.R. of the Revenue. Hence, we do not find any reason to take a contrary view. Ground No. 2 is also rejected.

8. Ground No. 3 is as under:

"3(a) That the Ld. CIT (A) has erred in law and on facts in deleting the addition of Rs.2,46,000/- made on account of interest on overdue bills of Iraq work without appreciating the facts and material brought on record by the Assessing Officer.

3(b) That the Ld. CIT(A) has erred in law and facts in not appreciating that the assessee had unilaterally decided not to charge interest on such outstanding and that there was no evidence to show that the concerned parties had denied their liability to pay interest on outstanding bills of the assessee."

9. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that this issue is also covered in favour of the assessee by the Tribunal decision in assessee's own case for assessment years 2001-02 to 2006-07, copy of which is available in the paper book.

10. We have considered the rival submissions. Learned D.R. of the Revenue could not point out any difference in facts in the present year and 4

since the order of CIT (A) is by following the Tribunal's decision in assessee's own case, we do not find any reason to take a contrary view in the absence of any difference in facts. Ground No. 3 is also rejected.

11. Ground No. 4 is as under:

"4(a) That the Ld. CIT (A) has erred in law and on facts in holding that the retention money of Rs.45,10,040/- did not accrue to the assessee during the year under consideration and thereby deleting the addition of the said amount already accrued to the assessee, the said amount of clearly taxable as income of the assessee for the year under consideration.

4(b) That the Ld. CIT[A] has erred in law and facts in overlooking the provision of section 199 of the Act and in not appreciating that since the assessee had claimed credit for TDS on the said amount in its return income, it implied as per the provisions of the said section that the assessee had recognized the said amount as its income for the year under consideration.

4(c) That the Ld. CIT(A) has erred in law and on facts in giving the finding that the concept of real income also strengthens the contention of the assessee without appreciating the ratio of the decision of the Hon'ble Supreme Court reported in 158 ITR 102 according to which the real income theory cannot affect the income which had already accrued as per law."

12. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that this issue is also covered in favour of the assessee by the Tribunal decision in assessee's own case for assessment years 2001-02 to 2006-07, copy of which is available in the paper book.

13. On a query from the Bench, it was submitted by Learned A.R. of the assessee that during the present year i.e. assessment year 2009-10, retention money was held by the parties to the extent of Rs.1,455.17 lacs whereas in 5

the same year, the assessee offered to tax an amount of Rs.8,039.29 lacs on expiry of deferred liability period and the closing balance was to the extent of Rs.13,012.34 lacs. He also submitted that in the next year, the closing balance was reduced to Rs.6,701.21 lacs and was reduced to nil at the close of the financial year 2010 - 11 i.e. 31/03/2011 relevant to assessment year 2011-12.

14. We have considered the rival submissions. We find that CIT(A) has decided the issue in favour of the assessee by following the Tribunal decision in assessee's own case for various earlier years. No difference in facts could be pointed out by Learned D.R. of the Revenue. Moreover, during the present year, the assessee has reduced an amount of Rs.1,455.17 lacs from its income on account of retention money but the assessee has offered a larger amount of Rs.8,039.29 lacs to tax being retention money not offered to tax in earlier years but offer to tax in present year on account of expiry of deferred liability period. Hence, it is seen that if the present year is considered in isolation, the amount offered to tax is more than the amount of income reduced from the income on account of retention money. This is also very important that at the end of the financial year 2010 - 11, the entire amount of retention money was offered to tax and considering these facts that no difference in facts could be pointed out by Learned D.R. of the Revenue, we do not find any reason to take a contrary view. Accordingly, ground No. 4 is also rejected.

15. Ground No. 5 is as under:

"5. That the Ld. CIT (A) has erred in law and on facts in deleting the addition of Rs.52,01,960/- made on account of manufacturing expenses being 7.5% of the total expenditure incurred on repair to building without appreciating the facts and material brought on record by the Assessing Officer."

6 16. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that this issue is also covered in favour of the assessee by the Tribunal decision in assessee's own case for assessment years 2003-04 to 2006-07, copy of which is available in the paper book.

17. We have considered the rival submissions. We find that this issue was also decided by learned CIT(A) as per Tribunal decision in assessee's own case in earlier years. No difference in facts could be pointed out by Learned D.R. of the Revenue on this issue also. Therefore, we do not find any reason to take a contrary view in the present year on this issue also. Ground No. 5 is rejected.

18. Ground No. 6 is as under:

"6. That the Ld. CIT (A) has erred in law and on facts in deleting the addition of Rs.51,29,656/- made on account of miscellaneous expenses without appreciating the facts and material brought on record by the Assessing Officer."

19. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that this issue is also covered in favour of the assessee by the Tribunal decision in assessee's own case for earlier assessment years, copy of which is available in the paper book.

20. We have considered the rival submissions. We find that this issue was also decided by learned CIT(A) as per Tribunal decision in assessee's own case in earlier years. No difference in facts could be pointed out by Learned D.R. of the Revenue on this issue also. Therefore, we do not find any reason to take a contrary view in the present year on this issue also. Ground No. 6 is rejected.

7 21. Ground No. 7 is as under:

"7. That the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.1,12,05,26,953/- on account of disallowance of claim for deduction u/s 80-1A of the Income Tax Act, 1961 without taking into account that assessee did not fulfill conditions which are required for claiming exemption U/s 80IA."

22. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also submitted that in assessment year 2007-08, the assessment was completed by the Assessing Officer u/s 143(3) as per order dated 31/12/2009, copy of which is available on pages 177 to 184 of the paper book. He further pointed out that as per this assessment order for assessment year 2007-08, no disallowance was made by the Assessing Officer on account of deduction claimed by the assessee u/s 80IA. It is also submitted that on page No. 176 of the paper book is copy of computation filed by the assessee along with the return of income for assessment year 2007-08 and as per the same, the assessee claimed deduction of Rs.6,589.29 lacs u/s 80IA in that year. He contended that when the same deduction was allowed by the Assessing Officer himself in assessment year 2007-08, the claim of the assessee in the present year i.e. assessment year 2009-10 cannot be disputed.

23. We have considered the rival submissions. We find that this is the main objection of the Assessing Officer that in the absence of accounts and balance sheet of the assessee at the time of commencement of business, it is not possible to ascertain the investment made by the assessee initially and thus quantify the magnitude of capital introduced. It was the objection of the Assessing Officer that in the absence of accounts of the assessee for the initial years, it is reaffirmed that all the three Captive Power Plants (CPPs) i.e. 25 MW Plant Rewa, 25 MW Plant Bela Plant and 38.5 MW plant were initially were integral part of same unit to whom power was to be supplied and later, 8

these CPPs were formed by splitting the existing business. The third objection was that the CPPs in question are not completely separate from that of the principal unit to which the concerned CPPs were supplying power. These objections of the Assessing Officer are to be examined and decided for allowing deduction for the first time but having allowed the deduction for the same three CPPs in assessment year 2007-08 as per assessment order passed by the Assessing Officer on 13/12/2009 u/s 143(3), the Assessing Officer cannot reject the claim of the assessee for deduction u/s 80IA in respect of same 3 CPPs in a subsequent year i.e. assessment year 2009-10 on the basis that initial capital is not known or that it is formed by splitting/reconstruction of the existing business etc. Hence, in view of the principle of consistency, we are of the considered opinion that there is no infirmity in the order of CIT(A) on this issue in view of the fact that in assessment year 2007-08, the Assessing Officer has himself allowed deduction to the assessee u/s 80IA in respect of the same 3 CPPs. We, therefore, decline to interfere in the order of CIT(A). Ground No. 7 is also rejected.

24. In the result, the appeal of the Revenue stands dismissed.

(Order was pronounced in the open court on the date mentioned on the caption page)

Sd/. Sd/.

(SUNIL KUMAR YADAV) ( A. K. GARODIA ) Judicial Member Accountant Member

Dated:29 /04/2015 *C.L.Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow Asstt. Registrar