TaxTMI 
TaxTMI 
2012 (2) TMI 524
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....ed the claimed deduction u/s 80-IA(4) of the Act to the assessee, on the basis that assessee is executing the civil work on contract basis being the civil contractor, however the main work was assigned to the Government. He was of the view that the assessee was a contractor employed by the Government to undertake the work. In the opinion of the AO the Government was a developer itself, thus the Government had the inherent power of operating and maintaining the same. The issue was whether assessee company itself was a developer of the infrastructural project so as to qualify for the deduction u/s 80-IA of the Act. Referring CBDT Circular No. 717, dated 14.8.1995 the AO has drawn a conclusion that the said deduction is allowable to an enterpr....
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.... of the Tribunal for fresh decision in accordance with law. 4. In compliance of the said order dated 30.8.2011 of Hon'ble Bombay High Court the present appeal has been heard. 5. At the outset of hearing the learned AR submitted that in the first round before the Tribunal the decision of Hon'ble Bombay High Court in the case of CIT vs. ABG Heavy Industries Ltd and Ors, (2010) 322 ITR 323 (Bom) was not brought to the notice of the Tribunal. He submitted that the issue raised in appeal is fully covered in favour of the assessee by the said decision of Hon'ble Bombay High Court in the case of CIT vs. ABG Heavy Industries Ltd and Ors (supra). The learned AR also pointed out that following the decision of Hon'ble Bombay High Court, an identical....
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....earlier occasion the Tribunal had decided the issue in favour of the Revenue by relying upon the decision of Third Member Bench of the Tribunal in the case of B.T. Patil & Sons Belgam Construction (P) Ltd vs. ACIT 126 TTJ (Mum) (TM) 577. The Hon'ble High Court has observed that it is not in dispute that the said decision of the Tribunal in the case of B.T. Patil & Sons (supra) has been recalled by the Tribunal by order dated 18.2.2011 as evident from the order passed by the Tribunal in ITA No.766/PN/2009 dated 8.6.2011. The Hon'ble High Court has accordingly quashed and set aside the impugned order of the Tribunal dated 24.2.2010 passed in ITA No.433/PU/2003 relating to AY 2003-04, and has restored the matter to the file of the Tribunal for....
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....rise carrying on the business of (i) developing; or (ii) operating and maintaining; or (iii) developing, operating and maintaining any infrastructure facility which fulfils certain conditions. Those conditions are : (i) Ownership of the enterprise by a company registered in India or by a consortium; (ii) An agreement with the Central or State Government, local authority or statutory body; and (iii) The start of operation and maintenance of the infrastructure facility on or after 1st April, 1995. The requirement that the operation and maintenance of the infrastructure facility should commence after 1st April, 1995 has to be harmoniously construed with the main provision under which a deduction is available to an assessee who develops or oper....
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..... We find from the decision of Hon'ble Bombay High Court in aforesaid case of CIT vs. ABG Heavy Industries Ltd & Ors (supra) that even in the case before the Hon'ble High Court, the assessee acted as a contractor for Government agency, was held eligible for the purposes of claim of deduction u/s 80-IA(4) of the Income Tax Act. As per the said decision of the Hon'ble High Court assessee who only develops infrastructural facility (even as a contractor) but does not have an occasion to operate and maintain is also eligible for claim of deduction u/s 80-IA(4) of the Act. The Hon'ble High Court has been pleased to observe that qua such a person the condition stated in sub-section (c) of sec.80-IA(4)(i) has to be read harmoniously with the main p....