TaxTMI 
TaxTMI 
2013 (4) TMI 758
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....ns of law and facts prevailing in the case." 3. The issue in controversy is eligibility of the deduction u/s.80IA (4) of the Act in respect of the project i.e. Hanumangarh - Suratgarh Road, Rajasthan which has been completed by the assessee. As noted by the Assessing Officer, for A.Y. 2006-07 the assessee filed the return of income in which deduction u/s.80IA(4) to the extent of Rs. 4,29,66,129/- has been claimed. The said deduction was claimed u/s.80IA in respect of "Hanumangarh - Suratgarh via Pilibangan Road" which contract has been executed by the assessee in Rajasthan. In the opinion of the Assessing Officer, as per the contract with the Government of Rajasthan dated 15-12-2000, the project executed by the assessee is of strengthening and improvement of Hanumangarh - Suratgarh via Pilibangan Road. The Assessing Officer has observed that to claim the deduction u/s.80IA(4), basic pre-requisite is that the concerned development should be of a new infrastructure facility. The Assessing Officer referred to and relied on CBDT Circular No. 733, part of said circular is reproduced in the assessment order. The Assessing Officer rejected the claim of the assessee for deduction u/s.80IA....
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....s 15-26 nos. commercial vehicles per day which requires minimum crust thickness of 37 cms. Thus, the work was to increase the thickness of existing roads having length of 26 kms and width of 7 mtrs from 25 cms to 37 cms. At page no. 4 of the documents / report at para 10 under the heading "Proposal" the exact information of the work done is mentioned as follows: "The proposal - 75 mm thick dense bitumen macadam by 40mm thick A.C. as wearing coat. Thus the assessee was required to provide additional thickness of dense bitumen of 7.5 cm and A. C. wearing coat of 4 cm." The assessee has also provided lists of completed projects in infrastructure under Public Private Partnerships. The list contains information about 32 completed projects, 2 ongoing projects and 3 projects in pipeline. It is seen that there are few projects in this lists which prima-facie look like new infrastructure project. The project at sr.no. 1 in the list of completed projects is in respect of "Karawati Bridge". It seems that this project is to be constructed newly under the P. P. P. project. Similarly, the projects at sr.no.9 to 11 in respect of Sihar Bypass, Bharatpur Bypass and .Pa// Bypass seem to be pri....
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....vehicles per day which requires minimum crust thickness of 37 cms. Thus, the work was to increase the thickness of existing roads having length of 26 kms and width of 7 mtrs from 25 cms to 37 cms. At page no.4 of the documents / report at para 10 under the heading "Proposal" the exact information of the work done is mentioned as follows : "The proposal - 75 mm thick dense bitumen macadam by 40mm thick A.C. as wearing coat. Thus the assessee was required to provide additional thickness of dense bitumen of 7.5 cm and A.C. wearing coat of 4 cm." 4.6. The CBDT Circular No.733 mentioned by the Assessing Officer also clearly stipulate that the infrastructure facility developed by the assessee should be new infrastructure facility. Still further, the CBDT has come up with a new circular No.4/2010 vide F.No.178/14/2010 - ITA No.1 dated 18.5.2010 in which it has been stated as under: " Circular No.4/2010 Subject :- Widening of existing road - definition of a new infrastructure facility- clarification regarding. Reference have been received by the Board as to whether widening of existing roads constitutes creation of new infrastructure facility for the purpose of section 80IA(4)(i)....
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....by the assessee is close to India - Pakistan Border and there is heavy traffic due to Oil Depots - Oil Tanker passing though said road and also Heavy Military Traffic being a border road. The existing road was not having the strength so as to coup up the traffic. He submits that it was not merely a repairing of road but re-doing of the entire road work so as to have the required strength and width. He submits that the said project was on the BOT basis i.e. Built, Operate and Transfer and the assessee was authorized to collect toll. He submits that as per the Government policy various projects are undertaken on the Public and Private partnership. Even though in the tender, the project is described as "Improving and Strengthening" of the road but the fact remained that considering the work executed, it remains the infrastructure projects only. He further submits that it was not merely a repairing of the road as concluded by the Ld.CIT(A) but in fact, the width of the road is also increased. He submits that the word "New" does not always mean that it never existed before or it should be fresh. He submits that on the examination of the tender documents the project road completed by the....
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..... We have heard the rival submissions of the parties and perused the record. The assessee company is in the business of Developing and Execution of infrastructure contracts. It is necessary to examine the terms of the contract with the Govt. of Rajasthan. The assessee has filed the Paper Book and a copy of agreement/contract with the Govt. of Rajasthan dated 15-12-2000 which is placed at page no. 70 to 79. As per the title to the Agreement it is mentioned that - "IMPROVEMENT AND STREGTHENING OF HANUMANGARH - SURATGARH ROAD VIA PILIGANGA KM. 0/0 TO 26/0 ON BOT BASIS". The said Agreement is in the form of lease of land as mentioned in the recital. It is asserted that lessor "Govt. of Rajasthan" is desirous to entrust Improvement and strengthening of Hanumangarh - Suratgarh Road via Pilibangan on BOT basis. The Bid document as well as Project report are made a part of the Agreement/Contract. As per the document on record, the length of the road is shown as 26 Km and the project cost is shown at Rs. 643.02 Lacs. The necessity for carrying out the improvement and strengthening of the said road is stated that said road has got crust thickness of 25 cm only, while the present day traffic ....
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....ting and maintaining any infrastructure facility subject to satisfaction of the conditions laid down in the Section. The Explanation to subsection 80IA(4)(i) states that for the purpose of this clause, infrastructure facility, means inter alia:- "(a) a road including toll road, a bridge or a rail system; (b) a highway project including housing or other activities being an integral part of the highway project;" The issue has been examined by the Board. It has been decided that widening of an existing road by constructing additional lanes as a part of a highway project by an undertaking would be regarded as a new infrastructure facility for the purpose of Section 80IA (4) (i). However simply relying of an existing road would not be classifiable as a new infrastructure facility for this purpose. (RAMAN CHOPRA) Director (ITA-I) Telefax:23092107 10. The CBDT has clarified the expression "new infrastructure facility". In fact the said circular supports the claim of the assessee that the widening of existing road by constructing additional lane as a part of the highway project is a new infrastructure facility. So far as the Hanumangarh - Suratgarh Road is concerned the width is al....