TaxTMI 
TaxTMI 
2014 (7) TMI 424
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.... Sheth, Managing Director of the assessee Company. The contents of application for condonation are as under: We refer to the letter dated 9.8.12 communicating the defects mentioned therein in respect of the aforesaid appeal in our case, for income-tax assessment year 2008-09, fixed for hearing on 17th June, 2014. In this connection we would like to bring to your notice that - 1. The Commissioner of Income-tax (Appeals) I. Thane passed an order dated 28/2/11 under section 143(3) of the Act. 2. On perusal of the order it was noticed that there was an error in the aforesaid order in mentioning the name of the appellant as "NCC SMC JV" and also, in the details of' income and deduction for the year under reference. 3. We on 5th May, 2011 filed an application for rectification for the aforesaid mistakes apparent on records to the Commissioner of Income-tax (Appeals) -1, Thane. 4. The Commissioner of Income-tax (Appeals) -1 Thane later passed an order dated 06.09.11 under section 154 rectifying the aforesaid mistakes apparent on records. 5. The order of Commissioner of income-tax (Appeals) I. Thane under section 154 as received by us on 7th September, 2011. 6. We l....
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....ction 80 IA(4). The AO has rejected the contention of the assessee that its case is squarely covered by decision of ITAT in the case of Patel Engineering Ltd. (supra). As against such case of the AO Ld. CIT(A) has followed mainly the decision of ITAT in the case of Patel Engineering Ltd. (supra) and has allowed relief to the assessee. We have to examine that whether or not assessee is entitled to get deduction under section 80 IA(4) in the light of aforementioned objection of the AO and plea of the assessee. It is the case of the assessee that AO has committed an error in holding that assessee has acted as a contractor in place of the claim of the assessee that it has worked as a developer of the infrastructure project. For raising such contention the assessee has placed reliance not only on the decision in the case of Patel Engineering Ltd. (supra) but also on the decision of Hon'ble Bombay High Court in the case of ABG Heavy Industries Ltd. (supra). It may be mentioned here that AO has passed the impugned assessment order for A.Y 2004-05 on 31/3/2006 when the benefit of decision of Hon'ble Bombay High Court in the case of CIT v/s ABG Heavy Industries Ltd. was not available. The a....
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....ntire project in order to qualify for a deduction under section 80 IA(4). If the provisions are so construed then it will be a condition impossible of compliance because of the magnitude of the entire project. For qualifying deduction under section 80 IA(4) what would be necessary will be that the work carried on by the assessee must be an integral part of the project and if it is so, then it cannot be said that assessee is not eligible for deduction under section 80 IA(4) for the reason that the assessee on its own did not develop an infrastructure project. Therefore, observations of the AO that assessee did not develop an infrastructure project and only part of the work was carried out cannot disentitle the assessee to claim the deduction. 10.4. The nature of works carried out by the assessee regarding the project have been stated in para-4 of the assessment order for A.Y.2004-05. It interalia include manufacturing , supplying , lowering, laying, jointing, testing and commissioning of 2200 mm diameter MS Pumping Main with cement mortar. In-lining & out-coating from clear water reservoir at Godakondala to MBR at Gungal and similar activities were carried out in respect of other....
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....eloping, operating and maintaining any infrastructure facility which fulfills certain conditions. For the sake of completeness para-22 & 23 of the decision is reproduced below: "22. Another submission which was urged on behalf of the revenue is that under clause (iii) of sub-section (4A) of section 80-IA, one of the conditions imposed was that the enterprise must start operating and maintaining the infrastructure facility on or after 1-4-1995. The same requirement is embodied in sub-clause (c) of clause (i) of sub-section (4) of the amended provisions of section 80-IA. On this basis, it was urged that since the assessee was not operating and maintaining the facility, he did not fulfill the condition. This submission is fallacious both in fact and in law. As a matter of fact, the Tribunal has entered a finding that the assessee was operating the facility and this finding has been confirmed earlier in this judgment. That the assessee was maintaining the facility is not in dispute. The facility was commenced after 1- 4- 1995. Therefore, the requirement was met in fact. Moreover, as a matter of law, what the condition essentially means is that the infrastructure facility should have....
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....peration and maintenance were not intended to be cumulative in nature". 10.6 According to aforementioned observations of their Lordships, pre or post amendment the requirement of section 80 IA(4) is that deduction will be available an enterprise engaged in (i) developing; or (ii) operating and maintaining or (iii) developing, operating and maintaining the infrastructure facility and such position was to be always construe to hold the field. Therefore, only development of infrastructure project is sufficient to make entitle an enterprise to be eligible for deduction under section 80 IA(4). 10.7 It may also be pointed out that the appeal filed by the Revenue for A.Y 2004-05 was earlier allowed by the Tribunal on the basis of Larger Bench decision in the case of M/s. B.T.Patel & Sons Belgaum Construction Pvt. Ltd.(supra) and it was brought to our notice that in view of the subsequent decision of Hon'ble Bombay High Court, Larger Bench decision was not followed by the Tribunal and the matter was decided by the Tribunal vide its order dated 28/2/2013 in the case of B.T.Patel & Sons Belgaun Construction Pvt. Ltd.(supra), a copy of this decision was placed on our record. The dire....
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....ssue in favour of the assessee following the decision of Hon'ble Bombay High Court in the case of ABG Heavy Industries Ltd. (supra). Para -4 of the said order is reproduced below: "14. In this background, the assessee could certainly claim the deductions under the provision of Section 80 IA. One has to see the substance and not the Form Essentially, though it was a Joint Venture, it was converted into assessee's venture. The Other Venturer withdraw and the entire work was executed by the assessee though in the name of Joint Venture. The Joint Venture is nothing but the venture of the assessee company and the other person not being a party after drawing the question of Joint Venture does not arise. The Venture was fully carried out by the assessee company. Taking the substance of the transaction, the assessee are entitled to all the profits in respect of the contract executed by them, hence the assessee would certainly be entitled to deduction under the provisions of 80IA as they have fulfilled all the other conditions. This view get from decision in the case of ITAT, Indore Bench, in case of Ayush Ajay Constructions Ltd. (supra). Thus, while giving effect to the opinion of Third....