TaxTMI 
TaxTMI 
2011 (9) TMI 1053
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....s of the Commissioner of Income-tax (Appeals) Kolhapur which in turn have arisen from the orders of the Assessing Officer passed under section 143(3) of the Incometax Act, 1961 (in short "the Act"), pertaining to the assessment years 2003-04 to 2006-07. 3. In all these appeals the solitary dispute revolves around the claim of the assessee for deduction under section 80IA of the Act, which has since been disallowed by the lower authorities. Although the assessee has raised multiple Grounds of appeal and also Additional Grounds of appeal, however, the assessee has concised the Grounds in the form of a modified Ground of Appeal, which reads as under: "1) On the facts and in the circumstances of the case and in law, the ld Authoriti....
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....ounsel pointed out that the Hon'ble Bombay High Court in the case of ABG Heavy Engg. Ltd., (supra) has considered the amendment made to section 80IA(4) with effect from 1.4.2002 and in terms thereof even a "contractor" employed by the Government or Government undertakings are entitled for deduction under section 80IA(4) of the Act. The learned counsel pointed out that the assessee being a contractor-cum-developer is eligible for deduction in that capacity even if the assessee has nothing to do with operating and maintaining the infrastructure built by it in terms of a contract. It was, therefore, submitted that the assessee qualifies for deduction in view of section 80IA(4)(i) and the same is independent of the condition at sub-clause (c) o....
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....ent itself which is developing the asset and had inherent right of operating and maintaining the same. The assessee is only one contractor employed to undertake the construction work and therefore it had no right of the type which a developer normally has. If the logic given by the assessee is extended, then all he sub contractors can also similarly be termed as developers. Because initially they apply their labour and resources and thereafter they are paid by the contractor. The logic given by the assessee to advance its claim of being developer of infrastructure facility is, therefore, unacceptable and rejected. The assessee is only a contractor. The respective Government which has given them the contract is the developer of the project. ....
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....an enterprise which developed such infrastructure facility (hereafter referred to in this section as the transferor enterprise) to another enterprise (hereafter in this section referred to as the transferee enterprise) 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....
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....act and in law. That the assessee was maintaining the facility is not in dispute. The facility was commenced after 1st April, 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 been operational after 1st April, 1995. After section 80-IA was amended by the Finance Act, 2001, the section applies to an enterprise carrying on the business of (1) developing; or (ii) operating and maintaining; or (iii) developing, operating and maintaining any infrastructure facility which fulfills certain conditions. Those conditions are (1) ownership of the enterprises by a company registered in India or by a consortiums; (ii) an agreement ....
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.... Government agency and was held eligible for the purposes of claim of deduction under section 80IA(4) of the Act. As per the legal position opined by the Hon'ble High Court, it is evident that an assessee who only develops infrastructure facility (even as a contractor) but does not have an occasion to operate and maintain is also eligible for claim of deduction under section 80IA(4) of the Act and the Hon'ble High Court has explained that qua such a person the condition stated in sub-clause (c) of section 80IA(4)(i) has to be read harmoniously with the main provision under which deduction is available to an assessee, who develops; or operates and maintains; or develops, maintains and operates an infrastructure facility. In other words, as o....