TaxTMI 
TaxTMI 
2018 (12) TMI 806
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...., with the consent of both parties, we proceed to hear the appeals together and pass a consolidated order. 3. The only issue is to be decided as to whether the CIT-A justified in deleting the impugned additions made by the AO on account of denying the claim of benefit of deduction u/s. 80IA of the Act in the facts and circumstances of the case. 4. At the outset, the ld.AR submits that the issue involved in both the appeals in respect of challenging the impugned orders of the CIT-A by the revenue in deleting the addition made on account of claim of deduction u/s. 80IA of the Act is covered in favour of assessee and against the revenue by the order dt. 18-06-2013 of the Co-ordinate Bench, ITAT 'B' Bench, Kolkata in ITA Nos. 1684 & 1685/Kol/....
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.... 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 sub-section (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), ....
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.... provided. The assessee is also to make its arrangements for storage of the materials. This is as per article 107 of the agreement. Thus, admittedly the work done by the assessee falls in the exclusion provided to the meaning of the work given in the Explanation to section 194C of the Act. Once it falls outside the meaning of term 'work' for the purpose of section 194C, the question that arises is can it be said that the assessee is doing the work contract as provided in the substituted Explanation in section 80IA after sub clause (13)?, The answer would be emphatic no. 12. This is because the assessee is doing the activity of development of an infrastructure facility as provided under section 80IA(4). The project is a Turnkey project a....
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....of the deduction u/s. 801A(4) of the Act. A perusal of the provisions of section 801A(4) of the Act shows that in the explanation 'infrastructure facility' has been specified to mean a road including a toll road, a bridge or a rail system. Admittedly, the assessee is doing the business of development of railway tracks and bridges thereof as also roads. If, we are to accept the contention of the Ld. CIT that the provisions of section 801A(4) of the Act after the substitution of the explanation to section 8OIA of the Act was introduced was only for the purpose of giving the benefit to BUT contracts then, the explanation to section 801A(4) of the Act becomes otiose. This is as explanation to section 801A(4) of the Act specifically provides f....