TaxTMI 
TaxTMI 
2016 (1) TMI 715
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....009-10 was filed on a total income of F28,83,467/-. The case was selected through CASS for scrutiny. Notices u/s.143(2) and 142(1) were issued to the assessee. The Assessing Officer completed the assessment u/s.143(3) on 27.12.2011 after making the disallowance of section 80-IA which was claimed as exemption of F18,45,450/- to the returned income. Aggrieved, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals). 5. The Commissioner of Income Tax (Appeals) observed that the assessee is not a works contractor and a developer as stipulated u/s.80IA(4) of the Act. The section 80-IA(4) applies to any enterprise, which carries on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facilities, which fulfill all the above conditions. From the assessment year 2000-01, deduction is available if the assessee is carrying out the business of anyone of the above mentioned three types of activities. When an assessee is only developing an infrastructure facility project and is not maintaining nor operating it, such an assessee will be paid for the cost incurred by it. If the infrastructural....
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....d 13.09.2011. The deduction u/s 80 lA (4) is available to an enterprise which develops or operates and maintains, or develops maintains and operates that infrastructure facility after 01.04.1995. A 'developer' is a specific kind of works contractor to be eligible for deduction u/s.80IA (4) who fulfills all the conditions viz., if the assessee develops the infrastructure facility if it operates the infrastructure facility and if it maintains the infrastructure facility, the deduction is available to an enterprise who develops or operates and also maintains, or develops, maintains and operates that infrastructure facility. The handing over of the infrastructure facility/project by the developer to the Government or Authority takes place after recoupment of the developer's cost whether it be 'BT' or 'BOT' or 'BOOT', because in 'BOT' and 'BOOT' this recoupment is by way of collection of toll therefrom whereas in 'BT' it is by way of periodical payment by the Government/Authority. The land involved in infrastructure facility/ project always belongs to the Government/Local Authority etc., whether it be the case of 'BOT' ....
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....it u/s. 80-IA of the Act. Therefore, the assessee is entitled to deduction u/s. 80 IA(4) of the Act and the Commissioner of Income Tax (Appeals) directed the Assessing Officer to delete the addition made at F18,45,450/- disallowed u/s 80 IA(4). The ld. Authorised Representative for assessee submitted that the Assessing Officer while computing income of the assessee has wrongly disallowed the deduction u/s 80lA. The AO has proceeded to the compute the income from the total income admitted by the assessee before claiming the deduction u/s 80lA and again disallowed the deduction u/s 80lA and thus the addition has been made twice in the order resulting in excess disallowance to the extent of F18,45,450/-. The Commissioner of Income Tax (Appeals) directed the Assessing Officer to verify the computation of income of the assessee and if the contention of ld. Authorised Representative for assessee found to be correct, the Assessing Officer may re-compute the taxable income and delete the excess addition made in the computation of income. Thus, the Commissioner of Income Tax (Appeals) allowed the claim of the assessee. Against this, the Revenue is in appeal before us. 6. The main content....
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....ed some of the decisions taken by it to bring in the development of infrastructure facility in the country. He pointed out that the Government provided the benefits to the Indian entrepreneurs by providing contract packages to the private enterprises. While providing benefits, the government specifically specified certain grants only to BOT Schemes. For the other schemes all the other benefits are made available. The classification provided in the brochure clearly indicates that the schemes of packages are meant for all the enterprises whether engaged in the development of infrastructure or under BOT. Hence, it clearly indicates that the Government of India with a view to develop the infrastructure facility provided various incentives to the Indian concerns for development of such infrastructure facility. With a view to provide the exemptions to the entrepreneurs carrying on such activity, the legislature introduced the amendment to Section 80IA(4) in the Finance Bill 1999 to be effective for and from the assessment years 2000-01 and onwards to fulfil the objective of the Prime Minister. The provisions of Sec. 80IA(4) are made applicable to "any enterprise carrying on the business ....
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.... conditions development, operation and maintenance were not intended to be cumulative in nature. Therefore, any assessee who has undertaken any one of the activity is eligible for deduction under section 80IA(4) of the Act. The Mumbai Bench of the ITAT in the case of Asstt. CIT v. Bharat Udyog Ltd. [2009] 118 ITD 336/[2008] 24 SOT 412(Mum.) also held that after the amendment of Section 80IA(4) it is applicable to enterprises who are engaged in developing infrastructural facility. Earlier, the Mumbai Bench in the case of Patel Engg. Ltd., v. Dy. CIT [2005] 94 ITD 411 also observed that the civil contractors who are developing the infrastructure facility is eligible for deduction under section 80IA(4) of the Act. It is mentioned that the statutory provisions as contained in 80IA(4) provides for development of infrastructure facility. Therefore, it is clear that to be eligible for deduction under section 80IA(4), an enterprise need not necessarily be engaged in all the three activities of developing, maintaining and operating the infrastructure. It is enough if it is carrying on the business of either developing or maintaining and operating or developing, maintaining and operating the....
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....e clear that any enterprise, which entered into development of infrastructure, would be eligible for deduction and not those enterprises, which enter into contract for executing works contracts. The assessee herein entered into agreement for development of infrastructure facility and not for a mere works contract. It is submitted that this explanation has to be read in the context of the application of the main provisions of Section 80IA(4) of the Act. From a reading of Section 80IA(4)(i) of the Act, it is clear that the deduction is available for any company which enters into agreement with any government or government body. It is clear that the deduction is available not for any person but for those companies entering into agreement with the government or other Government bodies/corporations. It is also made clear that the deduction is available for the corporate bodies entering into agreement with the government organizations. Therefore, the main provision makes it clear that the deduction is available to companies entering into agreement with government bodies or Government. Therefore, it is not correct to read the explanation to mean that the government body is eligible for de....
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....n the case of Ramky Infrastructure Ltd vs. DCIT in ITA No.472/Hyd/09 dated 17.07.2013 8. We have considered the elaborate submissions made by both the parties and also perused the materials available on record. We have also gone through all the case laws cited by both the parties. We find that the provisions of Section 80IA(4) of the Act when introduced afresh by the Finance Act, 1999, the provisions under section 80IA(4A) of the Act were deleted from the Act. The deduction available for any enterprise earlier under section 80IA(4A) are also made available under Section 80IA(4) itself. Further, the very fact that the legislature mentioned the words (i) "developing" or (ii) "operating and maintaining" or (iii) "developing, operating and maintaining" clearly indicates that any enterprise which carried on any of these three activities would become eligible for deduction. Therefore, there is no ambiguity in the Income-Tax Act. We find that where an assessee incurs expenditure on its own for purchase of materials and towards labour charges and itself executes the development work i.e., carries out the civil construction work, it will be eligible for tax benefit under section 80 IA of....
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....rprise) for the purpose of operating and maintaining the infrastructure facility on its behalf in accordance with the agreement with the Central Government, State Government, local authority or statutory body, the provisions of this section shall apply to the transferee enterprise as if it were the enterprise to which this clause applies and the deduction from profits and gains would be available to such transferee enterprise for the unexpired period during which the transferor enterprise would have been entitled to the deduction, if the transfer had not taken place. Explanation.-For the purposes of this clause, "infrastructure facility" means- (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; (c) a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system; (d) a port, airport, inland waterway, inland port or navigational channel in the sea; (5) .................. (13) ................ *Explanation. - For the removal of doubts....
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....00 (c.8), S. 367(2) (Stroud, 6th Edn., 2000, Supplement, 2003). It also includes group of bodies, partnership of enterprise card on by one or more persons or bodies and a body which is substantially the same at or successor, to, another body, Government Resources and Accounts Act, 2000 (c.20), S. 17(7) (Stroud, 6th Edn., 2000, Supplement, 2003). The main-central or principal part [Art. 110 (2), Const.]; physical or material frame of a man or animal; gang of thieves etc." 8.1 In our opinion, the said definition being a general preposition does not help the assessee's case. It is a trite preposition of law while interpreting a statute and more so a fiscal statue, neither the judicial forum concerned can insert its own words nor it can take away any from the statute. As it is seen, the earlier portion of the statutory provision prescribes a company registered in India or a consortium of such companies or by an authority or corporation or any other body established or constituted and so on. In our view, the latter part is liable to be read in the light of the earlier part by following the principles of ejusdem generis. 8.2 Further, it was noticed that in the cas....