TaxTMI 
TaxTMI 
2013 (11) TMI 197
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....y the Larger Bench of third Member i.e. a bench comprising of three members u/s. 255(4) of the Act. The matter was heard at length by the Larger Bench of the Third Member and they agreed with the Accountant Member. They were of the opinion that the assessee is not entitled to deduction u/s.80IA(4) of the Act. The said matter was referred back to the Division Bench of the Tribunal to give effect in conformity with the opinion of the Third Member as per the provisions of section 255(4) of the Act. 2. The said appeals were pending before the Division Bench of the Tribunal to give effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. However, the matter was dismissed in limine because of non-appearance on behalf of the assessee. The assessee moved a Miscellaneous Application before the Tribunal to recall the said order. While the said Miscellaneous Application was pending before the Tribunal, by way of abundant precaution the assessee filed appeals before the Hon'ble Bombay High Court being appeal number ITXA 1307 of 2011 for A.Y. 2000- 01 and 1640 of 2011 for A.Y. 2001-02 raising various contention regarding the allowance of deduction u/s. 80IA....
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.... court in the matter of CIT v. ABG Heavy Industries Ltd. reported in 322 ITR page 323 . All contentions are kept open. 3. The appeal is dismissed of in above terms." 6. The issue before us is whether the Tribunal while complying with the provisions of section 255(4) of the Act can consider the judgment of the Hon'ble High Court in the case of ABG Heavy Industries. In light of the clear directions given by the Hon'ble Bombay High Court in the appeals filed by the assessee for the impugned assessment years inter alia directed the Tribunal to consider the said decision of ABG Heavy Industries and all other decisions, we can consider the said judgments of ABG Heavy Industries and also the other judgments for allowing the deduction u/s. 80IA(4) of the Act while giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. Following the directions of the Hon'ble Bombay High Court being the Jurisdictional High Court, the Tribunal is bound to follow the directions and we do accordingly. 7. Stand of assessee before us is that issue at hand is covered by the decision of the Hon'ble Bombay High Court in the case of ABG Heavy Industries L....
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.... "The assessee did not have to develop the entire project in order to qualify for a deduction under s. 80-IA. The Parliament did not legislate a condition impossible of compliance." 8. In the case of ABG Heavy Industries (supra), the assessee therein had not developed the entire port but was only the supplier of cranes at the loading and unloading terminal at the said JNPT port. Thus assessee was not required to execute the entire project as observed by the Third Member. Another significant word used here is "owned", which indicates that the infrastructure facility should be owned by a company so as to be entitled to deduction under this section. The work done by the assessee is not owned by it, it does not satisfy sub clause (a) of section 80IA(4)(i). The infrastructure facility should be owned by the assessee is not correct interpretation. It is evident from section itself as clarified by the jurisdictional High Court in ABG Heavy Industries (supra) inter alia held that the assessee has shouldered out Investment & technical risk in respect of the work executed and it is liable for liquidated damages if failed to fulfill the obligation laid down in the agreement. The....
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....se. The assessee has undertaken the work on Back to Back Agreement concept under sub contract from Patel Engineering Company Limited (hereinafter referred to as PEC) vide Sub-Contract Agreement dated 15.10.1992 for construction of Tunnel which supplies the water form River Koyna and makes it available to Power House. In fact the assessee and PEC had proposed a joint venture to the relevant authorities for the Execution of the said project. As the project was being financed by World Bank the relevant authorities forwarded the proposal to World Bank. World Bank however did not accept the proposal but they suggested that M/s. Patel Engineering Company Ltd., may employ the assessee company as sub contractor. It was at the suggestion of World Bank that the assessee companies name was included as a sub contractor instead of forming of a joint venture. The project authorities including World Bank have approved and certified the assessee as sub-contractor for the above said work after thorough scrutiny and detail description of the work to be undertaken by the assessee company. The assessee company name is included in Main contract Agreement entered into between the employer and PEC as sub....
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....virtue of a valid assignment, which was duly recognised by the State Government. Therefore, it should be deemed to have entered into an agreement with the State Government for construction of the said bridge on BOT basis. It was not the case of the revenue that the entire expenditure incurred in the construction of the aforesaid bridge was not borne by the assessee but by "A", the main tenderer." The revenue had rejected the claim of the assessee for the simple reason that the assessee had never entered into any contract with the State Government and the assessee-company was nothing but a colourable device to evade tax. It is a settled position of law that the company is a juristic entity and it should be considered independent from the shareholders or the directors. The action of the assigning and the work of construction undertaken by the assessee was recognised by the State Government and a tripartite agreement was executed between the assessee 'A' and the State Government through which the State Government had recognised that the assessee had stepped into the shoes of 'A' and notified authorising the assessee to collect the toll tax for a particular period. Since ....