TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 385
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..... 1684/Kol/2011 and copy of the same is on record, wherein the Tribunal vide its said order directed the Assessing Officer to grant the assessee the benefit of deduction u/s. 80IA of the assessee as claimed. 4. On the other hand before us the ld.DR submits that the appellant Revenue has preferred an appeal before the Hon'ble High Court of Calcutta against such order dt. 18-06-2013 passed by the Tribunal in assessee's own case. The matter is still pending for adjudication. But he did not provide any document or evidence to show that the Hon'ble High Court of Calcutta has admitted such appeal filed by the revenue and no order contrary to the said order dt. 18-06-2013( assessee's own case) has been produced by the ld.DR on which the appeal of the revenue is still pending before the Hon'ble High Court of Calcutta for disposal. 5. Taking into consideration the submissions of the ld.AR of the assessee, we proceed to hear the appeal and dispose off the same on merits on the basis of material as available on record. ITA No.693/Kol/2016 A.Y 2011-12(by the assessee) 6. The brief facts of the case are that the assessee is a AOP [Joint Venture] stood successful in getting the bid for detai....
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.... question is to be decided by us for allowance of deduction u/s. 80IA of the Act as to whether the assessee is a developer or a works contractor. The AO found that the assessee raised RA bills in accordance with measurement of works executed and thereby he held that the assessee is not a developer and is a works contractor. We find that the assessee stood successful in getting the bid for detailed survey, drawing, design and execution of sewerage project on turn-key basis for Zones-II,III,IV and V project at Jabalpur. The assessee JV was awarded the said project work by the Municipal Commissioner, Jabalpur. Thereby the assessee is a developer for the reason that the assessee involved in preparation survey, drawing, design and execution of sewerage project work. We find that the assessee made investments and development of infrastructure to support the various contract works. The assessee is also responsible in all respects for the procurement of labours, machinery, equipments, goods, materials for the said project work. The assessee is also responsible for the payment and supply of labour, water and electric charges usage for the project. The assessee is responsible for making the ....
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....erprise referred to in Section 80 IA of the Act, for executing works contract, will not be eligible for the tax benefit under section 80 IA of the Act. We find that the word "owned" in sub-clause (a) of clause (1) of sub section (4) of Section 801A of the Act refer to the enterprise. By reading of the section, it is clears that the enterprises carrying on development of infrastructure development should be owned by the company and not that the infrastructure facility should be owned by a company. The provisions are made applicable to the person to whom such enterprise belongs to is explained in sub-clause (a). Therefore, the word "ownership" is attributable only to the enterprise, carrying on the business which would mean that only companies are eligible for deduction under section 801A (4) and not any other person like individual, HUF, Firm etc. 27. We also find that according to sub-clause (a), clause (i) of sub section (4) of 80-IA the word "it" denotes the enterprise carrying on the business. The word "it" cannot be related to the infrastructure facility, particularly in view of the fact that infrastructure facility includes Rail system, Highway project, Water treatment syst....
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.... assessee by sticking to the quality and quantity irrespective of the cost of such material. The Government does not provide any material to the assessee. It provides the works in packages and not as a works contract. The assessee utilizes its funds, its expertise, its employees and takes the responsibility of developing the infrastructure facility. The losses suffered either by the Govt. or the people in the process of such development would be that of the assessee. The assessee hands over the developed infrastructure facility to the Government on completion of the development. Thereafter, the assessee has to undertake maintenance of the said infrastructure for a period of 12 to 24 months. During this period, if any damages are occurred it shall be the responsibility of the assessee. Further, during this period, the entire infrastructure shall have to be maintained by the assessee alone without hindrance to the regular traffic. Therefore, it is clear that from an un-developed area, infrastructure is developed and handed over to the Government and as explained by the CBDT vide its Circular dated 18-05-2010, such activity is eligible for deduction under section 801A (4) of the Act. ....
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....AD Department shows that the assessee has taken EPC/Turnkey contract of the flood flow canal project from SRSP. The name of the contract has been extracted earlier in this order. The scope of the work is also extracted above. Admittedly, the assessee has taken a turnkey contract from the Irrigation Department, Govt. of Andhra Pradesh. The turnkey contract is in respect of the irrigation project. Irrigation project is an infrastructure facility within the scope of Explanation to section 80IA(4) of the Act. The provisions of section 80IA(4) is to be controlled by the Explanation to section 80IA, which has been substituted by the Finance (No.2) Act, 2009 with retrospective effect from 1-4-2-2000. This Explanation is found after subsection (13) of section 80IA. The said Explanation attempts to control the provisions of sub-section 4. More so, it says that nothing contained in section 80IA would apply in relation to the business referred to sub-section (4), which is in the nature of works contract. A works contract is not defined in section 80IA. Now, what would come into consideration is whether the substituted Explanation after sub- clause (13) changed the nature of the meaning of 'in....
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....e benefit of deduction u/s. 80IA(4) in respect of works contract, but to provide the deduction to such undertakings, which is doing the business of building, operating and Transfer (BOT) and building owning, operating and transfer BOOT as also PPP contracts does not hold water in so far as an irrigation project can never function under BOT or BOOT or PPP . In the circumstances, we are of the view that the assessee's claim is not hit by the substituted Explanation as provided after sub clause(13) of section 80IA.. Here, we may mention that this view finds support from the decision of the co-ordinate of the tribunal, [ITAT, Hyderabad Bench, Hyderabad in the case of GVPR Engineers Ltd & Ors (refer to supra). We may mention here that our view also finds support from the decision of the co-ordinate bench of this tribunal, ITAT Cuttack Bench, Cuttack in the case of ARSS Infrastructure Projects Ltd Vs. ACIT, Circle-2 (1), Bhubaneswar in ITA Nos. 142, 143/CTK/2010 & 483,484/CTK/2011 dated 13-06-2013, wherein one of us was a party and in which case it has been held as under :- 10. Now coming to the merits of the deduction u/s. 801A(4) of the Act. A perusal of the provisions of section 80....