Court No. - 3 Case :- INCOME TAX APPEAL No. - 29 of 2016 Appellant :- Pr. Commissioner Of Income Tax (Central) Lucknow Respondent :- M/S Vijay Infrastructure Ltd.B-5/21 Vishal Khand Gomti Nagar Counsel for Appellant :- Manish Misra Counsel for Respondent :- Desh Deepak Chopra Hon'ble Sudhir Agarwal,J. Hon'ble Ravindra Nath Mishra-II,J. 1. Heard Sri Manish Misra, learned counsel for appellant and Sri Desh Deepak Chopra, learned counsel for respondent assesses. 2. This is appeal under Section 260A of Income Tax Act, 1961 (hereinafter referred to as " Act 1961") arising from judgment and order dated 30.10.2015 passed in ITA No. 38//LKW/2015 relating to assessment year 2009-10. 3. It was admitted on following substantial questions of law:- (i) Whether Income Tax appellate Tribunal was justified in allowing deduction u/s 80IA to assessee on basis of return filed after issue of notice u/s 153A of Act. (ii) Whether Income Tax Appellate Tribunal was justified under facts and circumstances of case in confirming order of CIT (A) who has travelled beyond statutory provision of Chapter VIA, u/s 80 (5) of Income Tax Act, 1961 which clearly provides that if assessee fails to make claim in his return of income of any deduction; no deduction shall be allowed to him thereunder . 4. Tribunal has justified deduction under Section 80IA on basis of return filed under Section 153A by observing that for assessment year 2009-10 and onwards, time for filing revised return has not expired and, therefore, claim for deduction under Section 80IA if not made earlier could have been made in revised return. Once it could have been claimed in revised return under Section 139 (1), same could have also been claimed under Section 2 153 (A). 5. Sri Manish Misra, learned counsel for appellant contended that return under Section 153 (A) is not revised return but it is original return. If that be so, then in our view, deduction under Section 80IA, if otherwise admissible, always could have been claimed and we are not shown any authority otherwise to take different view. Therefore, in both way, deduction under Section 80IA , if otherwise admissible, could have been claimed by Assesses. Hence, we answer both aforesaid questions in favour of Assesses and against Revenue affirming view taken by Tribunal. 6. It is next contended that there is another substantial question of law that Assesses is not Developer but Contractor and in this regard detailed finding has been recorded otherwise by A.O but Commissioner of Income Tax (Appeals) (hereinafter referred to as CIT (A) ) has recorded finding otherwise and that has been confirmed by Tribunal without further dismissing. However, he submitted that while admitting appeal, no substantial question of law on this aspect has been framed. 7. For our satisfaction we have also gone into this aspect and find that CIT(A) has discussed this issue in great length and findings of CIT (A) commenced from page-72 of paper book. ultimate conclusion on page-78 and 79, reads as under:- This circular has been issued after Finance Act, 2009 and has clarified that widening of existing road in infrastructure facility by enterprise entitles enterprise for deduction u/s 80IA (4)(i). It is settled position in Law that CBDT circulars are binding on Assessing Officer reference is invited to case of [Azadi Bacchao Andolan (Supreme Court)] as CBDT circulars are contemparanea expositio. This deduction U/S 80IA (4)(i) is available to any company which has entered into agreement with government or other government 3 bodies/corporation, appellant company falls under this. After considering CBDT Circular 4/2010 case laws of Koya and Company and Rohan and Rajdeep Infrastructure and as well as facts at pages 40 to 42 of this order. appellant company has widened road from 2 lane to 4 lane in case of agreement with NHAI and that same time constructed bridges, culverts, drainage, junctions, footpaths, traffic, signals etc which shows that assessee company is developer and not mere contractor. Similarly, agreement with UP PWD assessee had increased road length and widened it, works consisted of up gradation of existing road, including provision of asphaltic overlay, GSB and WMM with DBM and BC and widening of carriageway as shoulders (hard and soft). work also includes widening of existing culverts and minor bridges alongwith new construction of culverts and bridges. Thus from above it is quite clear that appellant company is not mere work contractor but has developed road from existing 2 lane to 4 lane and while doing so appellant company has also made substantial investment by himself and also executed development works and carried out civil-works on his own by using his own material and expertise. No material consumed in construction of roads and bridges was provided by NHAI and UP PWD. This fact is duly referred to in copies of agreement as well as in payment advices, where in no amount was deducted by agencies on account of material. maintenance of existing facility during period of development also was of appellant company and so also was risk during period to maintain infrastructure and after completion of development of road and its handing over to Government, risk period of appellant company was of 12 months for maintenance of road. Further appellant company has not subcontracted his work. In case Statutory Report in form 10CCB under Rule 18 BBB as prescribed by CBDT was also filed along with return. Wherein Auditors have duly certified that assessee was developer of road and has maintained separate books of accounts wherein all details have been recorded and nothing adverse was noted 4 by Assessing Officer relating to this. Therefore, after considering all facts appellant company fulfills all criteria of developers as per Section 80IA (4)(i) and by his works new infrastructure facility in nature of road has come into existence and is eligible for tax benefit under Section 80IA (4)(i) of Act. After considering above stated facts, assesse is entitled for deduction u/s 80IA (4), therefore, addition of Rs. 10,34,06,532/- is hereby deleted and this ground of appeal is allowed. 8. Tribunal has also looked into this question in para-14 which commenced from page 14.2 and its findings read as under:- From above para of this tribunal order, it comes out that if contracts involves design, development, operating and maintenance, financial involvement and defect correction and liability period, then such contracts cannot be called as simple works contract to deny deduction under Section 80IA and profit from contracts which involves design, development, operating and maintenance, financial involvement, and defect correction and liability period is to be accepted as development and cannot be said to be contract simplictor to apply explanation. In present case, categorical finding has been given by CIT (A) that assessee was engaged in development of road and is not mere contractor as he had deployed his own capital, used his own management and expertise in maintenance and had to bear risk and defect correction. These findings of CIT (A) could not be converted by learned DR of revenue and therefore, this tribunal order rendered in case of Koya & Co. (Supra) is squarely applicable because facts are similar. In order of CIT (A), he has followed this tribunal order and various other judicial pronouncements as noted by him in his order, as reproduced above. Considering this factual and legal position, we find no infirmity that order of CIT (A) on this aspect that in fact of present case, it cannot be said that assessee company was mere contractor and not developer. Therefore, on issue No.3, we find no infirmity in order of CIT (A). This issue is decided in favour of assessee. (Emphasis added) 5 9. Thus, Tribunal has confirmed findings of fact recorded by CIT (A) holding that Assesses is Developer and not Contractor and otherwise findings recorded by A.O have been reversed by CIT (A). Since it is finding of fact concurrently recorded by CIT (A) and Tribunal, which has not been shown perverse on contrary to record. We,therefore, do not find any infirmity therein and in our view, this issue can not be treated to give rise substantial question of law. 11. In result, appeal is dismissed. Order Date :- 12.7.2017 Pachhere/- Pr. Commissioner of Income-tax (Central) Lucknow v. Vijay Infrastructure Ltd