Bombay High Court
Gulermak Tpl Joint Venture A Y 2017 2018 vs Income Tax Appellate Tribunal Through ... on 30 September, 2025
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2025:BHC-OS:17576-DB
1.wp(l).27895.2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.27895 OF 2025
Gulermak TPL Joint Venture .. Petitioner
Versus
Income Tax Appellate Tribunal & Ors. .. Respondents
WITH
WRIT PETITION (L) NO.27894 OF 2025
Gulermak TPL Joint Venture .. Petitioner
Versus
Digitally
signed by
UTKARSH
UTKARSH KAKASAHEB
KAKASAHEB BHALERAO
BHALERAO Date:
2025.10.06
Income Tax Appellate Tribunal & Ors. .. Respondents
11:21:53
+0530
Mr.Jehangir Mistry, Senior Counsel a/w Hiten Thakkar,
Shubham Bhandari i/b Lumiere Law Partners, Advocates
for the Petitioner.
Mr.Ravi Rattesar, Advocate for the Respondents.
CORAM : B. P. COLABAWALLA &
AMIT S. JAMSANDEKAR, JJ.
DATE : SEPTEMBER 30, 2025
P. C.
1. Heard Mr.Jehangir Mistri, learned senior advocate along
with Mr.Hiten Thakkar, advocate for the Petitioner in both the
Petitions, and Mr.Ravi Rattesar, learned advocate for the Respondents
herein.
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2. Rule. Respondents waive service. With the consent of
parties, Rule made returnable forthwith and heard finally.
3. As the facts and issues raised in both the Petitions are
similar, we take up WP(L) No.27895 of 2025 for assessment year 2017-
18, and our decision will apply mutatis mutandis to WP(L) No.27894 of
2025 for assessment year 2018-19.
4. These Petitions under Article 226 and 227 of the
Constitution of India challenge the orders dated 30 th July 2025 passed
by the Income-Tax Appellate Tribunal ("the Tribunal"). The impugned
orders dated 30th July 2025 dismissed the Petitioner's Miscellaneous
Applications for rectification [under Section 254(2) of the Income-tax
Act, 1961 ("the Act")] of the orders dated 29th January 2025 passed
under Section 254(1) of the Act for the assessment years 2017-18 and
2018-19.
5. The Petitioner is an un-incorporated joint venture between
Gulermak Agir Sanayi Insaat Ve Taahhut Sirketi, a company
incorporated under the laws of Turkey, and registered in India under
Section 380 of the Companies Act, 2013, and Tata Projects Limited, a
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company incorporated under the Companies Act, 1956. The joint
venture was formed by the parties to obtain and execute a contract with
Lucknow Metro Rail Corporation Limited ("LMRCL"), a nodal agency
established for the purpose of administering and regulating the
Lucknow Metro Rail to be constructed in the city of Lucknow.
6. On 27th May 2016, the Petitioner entered into a contract
with LMRCL under which the Petitioner was to design and construct an
underground tunnel and 3 underground metro stations for fixed
consideration. The agreement entered into by the Petitioner, inter alia,
imposed various obligations upon it regarding designing, procurement
of labour and material, testing of the work, obtaining necessary
permissions, employing its materials, plant and labour to complete
execution of the construction of the tunnel/metro stations, taking
financial risk and guaranteeing the quality of its work,
providing/obtaining insurance, warranties etc.
7. For the Assessment Year ("A.Y.") 2017-18, the Petitioner
filed its return of income claiming a deduction under Section 80-IA of
the Act for developing an infrastructure facility on the profits earned
from the aforesaid contract with LMRCL. The Assessing Officer passed
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an assessment order under Section 143(3) of the Act, inter alia, denying
the deduction under Section 80-IA of the Act on various grounds, two of
which are relevant for the purposes of these Petitions, viz. that (a) the
Petitioner was only a contractor and not a developer of the
infrastructure facility; and (b) the condition set out in Section 80-IA(4)
(i)(b) of the Act was not satisfied as the agreement was not entered into
with Central Government, State Government, Statutory Authority or a
Local Authority.
8. The Petitioner challenged the denial of deduction under
Section 80-IA by filing an Appeal under Section 246A of the Act before
the Commissioner (Appeals). The first Appellate Authority, vide order
dated 15th September 2022, confirmed the disallowance made by the
Assessing Officer under Section 80-IA of the Act. The Petitioner
therefore approached the Tribunal under Section 253 of the Act
challenging the order of the Commissioner (Appeals) approving the
disallowance under Section 80-IA of the Act.
9. During the course of the hearing of the Appeal before the
Tribunal, the Petitioner pointed out the various clauses in the
agreement entered into with LMRCL, analysed the facts of the case, and
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urged, inter alia, that various binding decisions of the High Courts and
Co-ordinate benches of the Tribunal had settled the tests to be
considered when deciding the issue of whether a person was a developer
entitled to deduction under Section 80-IA, or a mere contractor. The
Petitioner had filed a detailed and comprehensive note setting out the
various clauses of the agreements and facts, as well as the binding
decisions on the issue, which, accordingly to the Petitioner, would
irrefutably lead to the conclusion that the Petitioner was a developer
entitled to the deduction under Section 80-IA of the Act. The said note
is annexed to the Petition and contains reference to 30 clauses of the
said Agreement, 14 decisions of the High Court and Tribunal and a
circular issued by the Central Board of Direct Taxes on the subject. The
Petitioner also pointed out (and cited authority on the subject) that the
statute had been amended w.e.f. 1 st April 2002 and it had been made
clear that an assessee was entitled to a deduction under Section 80-IA,
even if it's business was merely developing an infrastructure facility, as
opposed to developing operating and maintaining the said facility. In
the above Petition, the Petitioner avers that the Tribunal was satisfied
with these contentions and required the Petitioner's counsel to move on
to other grounds in the cross appeals before it. The said note also set out
the various decisions including the decision of the Gujarat High Court in
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CIT V/S Ranjit Projects Pvt Ltd [(2018) 94 taxmann.com 320
(Guj)], SLP dismissed in CIT V/S Ranjit Projects Pvt Ltd [(2019)
105 taxmann.com 126 (SC)], which had held that a contract
executed with a Special Purpose Vehicle (SPV)/Nodal Agency, whose
entire share capital was held by a State Government [like LMRCL]
would be entitled to a deduction under the said section, and was not in
contravention of the condition specified in Section 80-IA(4)(i)(b) of the
Act. As required by the Tribunal, during the hearing of the appeal the
Petitioner also set out in the form of another note a detailed reply to the
arguments of the Revenue's counsel which once again set out the nature
of contracts, which were the subject matter of the binding precedent,
and the fact that they had also been entered into with SPV's/Nodal
Agencies and replied to all other arguments of the Revenue.
10. The Tribunal in a cursory manner, by order dated 29 th
January 2025 dismissed the Appeal of the Petitioner and confirmed the
disallowance of deduction under Section 80-IA of the Act, purportedly
on the grounds that (a) the Petitioner was not developing the
infrastructure facility and was only a contractor; and (b) the agreement
with LMRCL does not satisfy the requirement of having an agreement
with the Central Government, State Government, Statutory Authority or
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a local Authority under Section 80-IA(4)(i)(b) of the Act. While setting
out the aforesaid conclusions, the Tribunal did not refer to the 2
detailed notes filed by the Petitioner during the course of the hearing
which captured various contentions, did not refer to the material on
record, or even the terms of the contract, and simply did not deal with
the binding judgments of the co-ordinate benches of the Tribunal and
the High Courts. Merely bare conclusions were recorded, based on, inter
alia, erroneous factual assumptions and presumptions. On the other
issues raised in the Appeal the Tribunal has not recorded any finding
against the contentions urged by the Petitioner.
11. Since the order dated 29 th January 2025 [passed under
Section 254(1) of the Act] did not deal with the various contentions of
the Petitioner, did not refer to or consider the evidence on record
including the binding judgments on the subject, and suffered from
various other mistakes apparent from the record, the Petitioner filed a
Miscellaneous Application under Section 254(2) of the Act for
rectification of the order dated 29 th January 2025. The said
Miscellaneous Application exhaustively set out the mistakes apparent
from record. However, the Tribunal, vide order dated 30 th July 2025,
dismissed the Miscellaneous Application on, inter alia, the ground that
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it was not necessary to deal with each and every clause of the contract
entered into with LMRCL or the judicial decisions relied upon by the
Petitioner, which were all ignored stating that the same were "fact
specific" without in any manner setting out how this conclusion was
arrived at. The Tribunal further held that merely because it has not
specifically discussed various clauses of the agreement or the judicial
precedents cited in the body of the order, there was no mistake apparent
from the record. In this regard, the Tribunal relied on the judgment of
this Court in CIT V/S Ramesh Electric and Trading Co. [(1994)
203 ITR 497 (Bom.)] and the judgment of the Supreme Court in case
of CIT V/S Reliance Telecom Limited [(2022) 440 ITR 1 (SC)].
12. We have heard the learned counsel for the parties and
perused the material on record. Before delving into the issues involved
in the present Petitions, we may re-iterate that the Income-tax Appellate
Tribunal is the last fact finding authority under the Act. Therefore, it is
necessary that the Tribunal while deciding an Appeal, considers the
entire material on record and thereafter decides the factual and legal
issues that arise in an Appeal. It is the duty of the Tribunal to examine
the evidence which is brought on record by the parties and render
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findings of facts and law, as an Appeal before the High Court is
entertained only on a substantial question of law.
13. This well settled principle of law has been set out, inter alia,
in the judgment of the Supreme Court in the case of Omar Salay
Mohammed Sait V/S CIT [(1959) 37 ITR 151 (SC)] wherein it was
observed as under:
"We are aware that the Income-tax Appellate Tribunal is a fact
finding Tribunal and if it arrives at its own conclusions of fact
after due consideration of the evidence before it this court will not
interfere. It is necessary, however, that every fact for and
against the assessee must have been considered with due
care and the Tribunal must have given its finding in a
manner which would clearly indicate what were the
questions which arose for determination, what was the
evidence pro and contra in regard to each one of them
and what were the findings reached on the evidence on
record before it. The conclusions reached by the Tribunal should
not be coloured by any irrelevant considerations or matters of
prejudice and if there are any circumstances which required to be
explained by the assessee, the assessee should be given an
opportunity of doing so. On no account whatever should the
Tribunal base its findings on suspicions, conjectures or surmises
nor should it act on no evidence at all or on improper rejection of
material and relevant evidence or partly on evidence and partly
on suspicions, conjectures or surmises and if it does anything of
the sort, its findings, even though on questions of fact, will be liable
to be set aside by this court."
(emphasis supplied)
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14. Similarly in the case of Esthuri Aswathiah vs. CIT
[(1967) 66 ITR 478 (SC)] the Supreme Court held as under:
"The function of the Tribunal in hearing an appeal is purely
judicial. It is under a duty to decide all questions of fact and law
raised in the appeal before it: for that purpose it must consider
whether on the materials relied upon by the assessee his plea is
made out. Conclusive proof of the claim is not predicated: the
Tribunal may act upon probabilities, and presumptions may
supply gaps in the evidence which may not, on account of delay
or the nature of the transactions or for other reasons, be
supplied from independent sources. But the Tribunal cannot
make arbitrary decisions: it cannot found its judgment on
conjectures, surmises or speculation. Between the claims of the
public revenue and of the taxpayers, the Tribunal must
maintain a judicial balance. The order passed by the Tribunal
without recording any reasons in support of the estimate of
unaccounted income cannot, thereof, be sustained."
15. Also, in the case of Killick Nixon & Co. vs. [CIT (1967)
66 ITR 714 (SC)] wherein again the Apex Court held as under:
"Under the Scheme of the Income-tax Act, the Tribunal is the
final fact finding authority on question of fact. The Tribunal
in deciding an appeal is bound to consider all the
evidence, and the arguments raised by the parties.
The Tribunal apparently did not consider the
evidence; it merely recorded a bare conclusion
without setting out any reasons in support thereof. It
is therefore no possible to say whether the Tribunal considered
the evidence and the contentions raised by the assessee; it
cannot be assumed merely because a conclusion is
recorded that the Tribunal considered the evidence."
(emphasis supplied)
16. Applying the principles laid down by the Hon'ble Supreme
Court in the aforesaid judgments, we find that the order dated 29 th
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January 2025 passed by the Tribunal falls short of the requirements set
out by the Supreme Court in the abovementioned judgments. Clearly,
the Tribunal has not considered the evidence on record and had merely
recorded bare conclusions without setting out any reasons in support
thereof. We say so because we find that the Tribunal, while coming to
the conclusion that the Petitioner was a mere contractor and not a
developer, has failed to consider various clauses of the agreement with
LMRCL. It was incumbent upon the Tribunal to consider the following
clauses in the agreement with LMRCL relating to:
a. Designing of underground tunnel and 3 underground
metro stations;
b. Procurement of material, labour, plant and machinery for
execution of the contract;
c. Obtaining approvals, permits or licenses from various
authorities for execution of the contract;
d. Testing of the work carried out and remedying the defect
found in the work at its own cost;
e. Providing warranty and defect liability for the period up
to 3 years after completion of the project;
f. Providing performance guarantee in the form of 10% of
the contract value;
g. Payment of liquidated damages for delay in completion
of project @0.5% of the contract value;
h. Insurance for design and work, project site, equipment,
workers, etc.
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17. We are of the opinion that the aforesaid clauses in the
agreement with LMRCL were material to determine whether the
Petitioner was acting as a mere contractor or, it was a developer of the
infrastructure facility undertaking operational, financial and
entrepreneurial risk in execution of the aforesaid contract. The
conclusion of the Tribunal that the Petitioner was a mere contractor
without considering the various clauses of the agreement and other
material placed on record clearly renders the order of the Tribunal as
one which suffers from a mistake apparent from the record.
18. Further, it is the agreed position that the Petitioner during
the course of the hearing had filed a note which referred to the aforesaid
clauses in the agreement and had also relied upon the judgments of the
co-ordinate benches of the Tribunal and the High Courts to support its
contention that it was a developer of the infrastructure facility.
However, (apart from a single decision noted by the Tribunal in an
erroneous context), none of the judgments relied upon by the Petitioner
have been referred to, much less considered, by the Tribunal in the
order dated 29th January 2025. In fact, when the Petitioner in the
Miscellaneous Application [filed under section 254(2) of the Act]
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pointed out that the Tribunal has failed to consider the various clauses
in the agreement and the judicial pronouncements on the subject, the
Tribunal dismissed the Application of the Petitioner holding that it was
not necessary to refer to each and every clause of the agreement and
that judgments filed by the Petitioner were fact specific without pointing
out as to what are the distinguishing facts. We are, therefore, of the
opinion that the order of the Tribunal dated 29 th January 2025 passed
under section 254(1) of the Act clearly suffers from a mistake apparent
from the record.
19. We further find that the Tribunal in the order dated 29 th
January 2025 had also held that the agreement of the Petitioner with
LMRCL does not satisfy the condition of section 80-IA(4)(i)(b) of the
Act as the agreement was not entered into with the Central Government,
State Government, Local Authority or a Statutory Authority. In this
connection, the Petitioner had relied upon the judgments in case of
PCIT vs. Ranjit Projects (P.) Ltd. [(2018) 94 taxmann.com
320 (Guj.)] (SLP dismissed by SC), Bothra Shipping Services (P.)
Ltd. vs DCIT [(2023) 150 taxmann.com 200 (Cal.)] and
Kirloskar Brothers Ltd. vs. DCIT [(2016) 69 taxmann.com 78
(Pune)] [appeal dismissed by this Court in ITXA No. 1204 of 2015],
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wherein it has been held that the agreement entered into by an assessee
with a SPV/ Nodal Agency appointed by an authority referred in 80-
IA(4)(i)(b) will satisfy the requirement of the said Section. According to
the Petitioner, the aforesaid judgments were squarely applicable in the
present case since LMRCL was not only held jointly by central and state
government but was appointed as a nodal agency by the central and
state government for administration of the metro rail project in
Lucknow.
20. However, the Tribunal in the order dated 29 th January 2025
has not considered the ratio laid down by the aforesaid judgments relied
upon by the Petitioner during the course of the hearing. What we find is
that the Tribunal has instead incorrectly referred to the judgment of
Gujarat High Court in case of Ranjit Projects (supra) to decide the issue
of "contractor or developer". The aforesaid judgment was not cited by
the Petitioner for that purpose as is evident from the note submitted
before the Tribunal. The Tribunal therefore, has failed to properly
consider the judgment of the Gujarat High Court in case of Ranjit
projects (supra). Non consideration of the judgments, and which, at
least prima facie were relevant, would certainly amount to a mistake
apparent from the record.
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21. Our conclusion that the failure of the Tribunal to consider
the contentions urged before it, the material on record, and failure to
consider the judgments cited before it, amounts to a mistake apparent
from record, is supported by the judgment of this Court in the case of
Amore Jewels Pvt. Ltd. vs. DCIT (WP No. 1833 of 2018
decided on 3rd August 2018) wherein a similar issue arose for
consideration and this Court allowing the Writ Petition held as under:
"We find that, though the order dated 13 th February 2015
does render a finding that no positive material was
brought on record, there is no discussion whatsoever of
the various case laws detailed in the submissions which
according to the Petitioner clinches the issues in support
of its case that the shareholding investment by the five
companies was genuine. In the above view, the Tribunal
ought to have allowed the Petitioner's rectification
application and considered the petitioner's appeal before
it on merits, inter alia, taking into account the material
and case laws which has been already filed by the
Petitioner's during the hearing leading to the order
dated 13th February 2015"
22. Similarly, in the case of Sony Pictures Networks India
(P.) Ltd. vs. ITAT [(2023) 156 taxmann.com 443 (Bom.)], this
Court has held that the failure of the Tribunal to decide a fundamental
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submission of an assessee in an appeal is a mistake apparent from
record. The relevant portion of the judgment is extracted as under:
"9 ... The reliance upon an observation in the decision of this
Court in Ramesh Electrical (supra) (without
consideration of the context) to conclude that in every
case, where a submission/argument is not considered,
rectification will not be the remedy available. The
Tribunal ignored the fact that the above observation of
this Court in Ramesh Electrical (supra) was on the basis
that for a rectification application to be maintainable, the
mistake should be apparent from the record. In this case,
the mistake/error in not dealing with the fundamental
submission in appeal is apparent from the record, as the
submission that the distribution fee was not royalty was
recorded and yet not dealt with in the order. Thus the
decision of this Court in the case of Ramesh Electrical
(supra), turned on its own peculiar facts and as held by
the Supreme Court that a Judgment of the Court is not to
be read as a statute. The factual background of the case is
to be considered while applying the judgment and
holding oneself bound by the rule of precedents. (Please
see CCE, Calcutta v. Alnoori Tobacco Products 2004 (170)
ELT 135/2004 taxmann.com 563 (S.C.) and Escorts Ltd.
v. CCE 2004 (173) ELT 113 (S.C.)"
23. Further, the Hon'ble Supreme Court, in the case of CCE vs.
Bharat Bijlee Limited [(2006) 198 ELT 489 (SC)], has also held
that the failure of the Tribunal to consider material evidence on record
is a mistake apparent rectifiable under section 35C(2) of the Central
Excise Act, 1944, which provisions are in pari materia with the
provisions of section 254(2) of the Income-tax Act, 1961. The relevant
part of the judgment of the Hon'ble Supreme Court is as under:
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"6. After going through the earlier order dated 13-6-1996
passed by the Tribunal and the Impugned Order, we are
satisfied that the Tribunal had failed to take into
consideration the material evidence which was present
on the record. Failure to take into consideration the
material evidence, which is present on the record, would
certainly amount to mistake apparent on the face of the
record and the Tribunal under the circumstances would
have the jurisdiction to correct the said mistake in
exercise of its powers under section 35C(2) of the Act."
24. The learned counsel for the Respondent Revenue strongly
objected to the arguments canvassed by the Petitioner and placed
reliance on the judgment of this Court in case of CIT vs. Ramesh
Electric and Trading Co. [(1994) 203 ITR 497 (Bom.)] to
contend that failure of the Tribunal to consider an argument does not
amount to a mistake apparent from the record. On perusal of the
judgment in the case of Ramesh Electric (supra), this Court has noted
that the Tribunal, in purported exercise of power under section 254(2)
of the Act, had reheard the entire appeal, reassessed all the
circumstances and reversed the conclusion which was reached in the
order passed under section 254(1) of the Act. It was in that context that
the aforesaid observation was made by this Court. Further, the
judgment in case of Sony Pictures (supra) has already clarified that the
ratio laid down in the case of Ramesh Electric (supra) is not applicable
in cases such as the present one, where the entire arguments, materials
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and judicial precedent have not been considered by the Tribunal.
Therefore, we reject the reliance placed by the counsel for the revenue
on the judgment of Ramesh Electric (supra).
25. The learned counsel for the Respondent Revenue thereafter
placed reliance on the judgment of the Supreme Court in case of CIT
vs. Reliance Telecom Limited [(2022) 440 ITR 1 (SC)] to
contend that when there is a mistake in the order of the Tribunal then,
the proper course of action is to file an appeal under section 260A of the
Act. On perusal of the above judgment, we find that the Tribunal in that
case had passed a detailed judgment and dismissed the appeal of the
assessee. Thereafter, in proceedings under section 254(2) of the Act, the
Tribunal reheard the appeal on merits and recalled the order passed
under section 254(1) of the Act. It was in this background that the
Supreme Court held that the Tribunal could not have recalled its earlier
order by exercising the powers under section 254(2) of the Act and the
correct remedy was to file an appeal against the order of the Tribunal.
26. The facts in the present case are materially different. The
fundamental grievance of the Petitioner in the present case is that the
Tribunal while passing the order dated 29 th January 2025 has not
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considered the material/evidence on record, the contentions raised
before it during the course of the hearing and the various judgments of
the co-ordinate benches of the Tribunal and the High Courts. We find
that the grievance of the Petitioner is justified as the order dated 29 th
January 2025 does not refer to, much less considers, the reliance placed
by the Petitioner on the factual documents and the legal position on the
subject before coming to the conclusion that the Petitioner was not
entitled to the deduction under section 80-IA of the Act. Therefore, the
reliance placed by the counsel for the Revenue on the judgments in the
case of Ramesh Electric (supra) and Reliance Telecom (supra) is wholly
misconceived.
27. For all the aforementioned reasons, we set aside the
Impugned Order dated 30th July 2025 and also the order dated 29 th
January 2025 passed under section 254(1) of the Act as the same suffers
from mistakes apparent from the record and direct the Tribunal to
decide the appeals of the Petitioner afresh in accordance with law.
28. The Petitioner has pointed out that it has filed appeals in
this Court against the orders of the Tribunal dated 29 th January 2025 for
A.Y. 2017-18 (ITXAL No.23615 of 2025) and 2018-19 (ITXAL No.23697
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of 2025). In view of this judgment, the Petitioner undertakes to
withdraw these Appeals within 2 weeks of this order being uploaded on
the High Court's website. The said undertaking is accepted. In the event,
the Revenue decides to challenge this order before the Hon'ble Supreme
Court, and this order is set aside, the Appeals filed by the Petitioner
referred to above shall be revived and then shall be decided on their own
merits and in accordance with law.
29. Rule is made absolute in the aforesaid terms and the Writ
Petition is also disposed of in terms thereof. However, there shall be no
order as to costs.
30. This order will be digitally signed by the Private Secretary/
Personal Assistant of this Court. All concerned will act on production by
fax or email of a digitally signed copy of this order.
[AMIT S. JAMSANDEKAR, J.] [B. P. COLABAWALLA, J.]
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