O/TAXAP/1026/2014 JUDGMENT IN HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO.1026 of 2014 With TAX APPEAL NO.1027 of 2014 FOR APPROVAL AND SIGNATURE: HONOURABLE MS. JUSTICE HARSHA DEVANI and HONOURABLE MS. JUSTICE SONIA GOKANI 1 Whether Reporters of Local Papers may be allowed to see judgment? 2 To be referred to Reporter or not? 3 Whether their Lordships wish to see fair copy of judgment? 4 Whether this case involves substantial question of law as to interpretation of Constitution of India, 1950 or any order made thereunder? 5 Whether it is to be circulated to civil judge? AMARSHIV CONSTRUCTION PVT LTD....Appellant(s) Versus ASST. COMMISSIONER OF INCOME TAX....Opponent(s) Appearance: MR RK PATEL, ADVOCATE for Appellant(s) No.1 MR KM PARIKH, SENIOR STANDING COUNSEL for Opponent(s) No.1 CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI and HONOURABLE MS. JUSTICE SONIA GOKANI Date : 23/09/2014 COMMON ORAL JUDGMENT Page 1 of 4 Downloaded on : Wed Jul 22 10:49:59 IST 2020 O/TAXAP/1026/2014 JUDGMENT (PER : HONOURABLE MS. JUSTICE HARSHA DEVANI) 1. Heard Mr. R.K. Patel, learned advocate for appellant in both appeals and Mr. K.M. Parikh, learned senior standing counsel for respondent. 2. Admit. following common substantial question of law arises for consideration:- Whether on facts and in circumstances of case and on appreciation of correct position of law read along with documentary evidence on record Tribunal s ultimate finding and conclusion of taxability of retention money for year under consideration is contrary to settled position of law and against documentary evidence on record? 3. Having regard to nature of controversy involved in both these appeals, which lies in very narrow compass, with consent of learned counsel for respective parties, matters are taken up for final hearing today. 4. Both these appeals arise out of common order dated 3rd January, 2014 passed by Income Tax Appellate Tribunal, Ahmedabad Bench C (hereinafter referred to as Tribunal ), hence same were taken up for hearing together and are disposed of by this common judgment. assessment years are 2003-04 and 2007-08 respectively. For sake of convenience, reference is made to facts of Tax Appeal No.1026/2014. Page 2 of 4 Downloaded on : Wed Jul 22 10:49:59 IST 2020 O/TAXAP/1026/2014 JUDGMENT 5. appellant company is engaged in business of civil construction of Dams, Highways, Railway Earth and Structural Works, etc. For assessment year 2003-04, return of income was filed which was processed by Assessing Officer and ultimately assessment order was framed under section 143(3) after making certain additions and disallowances. One of disallowance was in respect of deduction of retention money of Rs.30,80,101/- pertaining to claim of appellant company whereby on facts of case appellant claimed that same is not taxable income for year under consideration. However, claim of appellant was rejected by Assessing Officer. Being aggrieved, assessee went In appeal before Commissioner of Income- Tax (Appeals) but failed. assessee went in second appeal before Tribunal but did not succeed. 6. It is admitted position between parties that controversy involved in present cases stands concluded by decision of this court in case of Amarshiv Construction Pvt. Ltd. v. Deputy Commissioner of Income-Tax rendered on 19th March, 2014 in Tax Appeal No.554/2003 and cognate matters wherein question has been answered in favour of assessee and against revenue. Under circumstances, it is not necessary to record facts and contentions in detail. 7. For reasons recorded in above referred decision of this court in Tax Appeal No.554/2003 and cognate matters, these appeals are also allowed. question is accordingly, answered in favour of appellant - assessee Page 3 of 4 Downloaded on : Wed Jul 22 10:49:59 IST 2020 O/TAXAP/1026/2014 JUDGMENT and against revenue. However, Assessing Officer is directed to tax retention money in assessment year relevant to previous year in which retention money becomes payable to appellant as per terms of contracts i.e. after defect liability is over and after Engineer-in-Charge certifies that no liability attaches to appellant. ( HARSHA DEVANI, J. ) ( MS. SONIA GOKANI, J. ) hki Page 4 of 4 Downloaded on : Wed Jul 22 10:49:59 IST 2020 Amarshiv Construction Pvt. Ltd. v. Asst. Commissioner of Income-tax