TaxTMI 
TaxTMI 
2016 (9) TMI 1573
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....placed reliance on the judgments which were not applicable to the case of the assessee. (iii) Whether the ITAT did not err in interpreting the provisions of the Income Tax Act 1961 when it held that there was no bar for a contractor to be a developer for purposes of benefits of section 80-IA(4) of the Income Tax Act, 1961. (iv) Whether on facts and circumstances of the case, the ITAT Amritsar was justified in allowing the loss of Rs. 7,85,590/- on account of Quota written off by treating as revenue expenditure when it was actually a capital loss as the assessee had stopped its business and not suffered losses in business? ITA No.36/2013 (i) Whether on facts and circumstances of the case, the ITAT Amritsar was justified in treating the assessee company as a developer within the meaning of section 80-IA(4) of the Income Tax Act, 1961 when in fact the assessee had merely executed a work contract for Airport Authority of India for extension of runway and works contract under section 80-IA(4) of the Income Tax Act, 1961 were clearly ineligible for deductions. (ii) Whether the ITAT did not err in law when it placed reliance on the judgments wh....
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....cy for construction of bridges and for developing or improving Airport facility. 4. Being the successful tenderer, the respondent- assessee executed the work and in relation to the profits and gains that was derived from those contracts, the assessee claimed deduction in terms of Section 80-IA (4) of the Income Tax Act. The assessing officer in respect of each assessment year accepted the plea for deduction under Section 80-IA (4) partially in some assessment year and denied it fully in some assessment year. 5. The assessee filed Appeals before the CIT Appeals in respect of each assessment year who confirmed the assessment order. Therefore, four appeals were filed by the assessee before the Tribunal. The Tribunal heard the appeals and disposed of the same by a common order accepting the plea of the assessee, and allowed the appeals. Aggrieved thereby, the revenue is before us raising questions of law referred to above. 6. Before we embark on the legal issue to summarize the nature of claim, we will go into the nature of work undertaken by the assessee in respect of each assessment year. S. No. ITA No. Assessment year Nature of work Remarks 1. ITA No.39....
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....taining or (iii) developing, operating and maintaining any infrastructure facility as contained in Section 80-IA 4 (i). The word 'or' has been held to be read as disjunctively and that each of the enterprise, i.e. (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining of a new infrastructure facility should be read independently and if the assessee fulfils one of the above conditions, he will be entitled to benefit of Section 80-IA (4)(i)(c) of the Act. The Tribunal held that the assessee will fall under the category of developer. Therefore, the Assessing Officer and the CIT appeals were not correct and misread the provisions of Section 80-IA (4). The Tribunal finding is as follows: "15.3. It is pertinent to mention here that the AO in the remand report has reported in last para at page 2 of the report that deduction u/s 80IA is admissible to the assessee who develop, operate or maintain the Airport. As per findings of the AO and as per remand report of the AO, all these three conditions should be cumulative. Whereas the law has been amended, as mentioned hereinabove. As per new provision, deduction is allowable to any enter....
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....en 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 80-IA(4)(i). However, simply relaying of an existing road would not be classifiable as a new infrastructure facility for this purpose. [F.No.1778/14/2010-ITA.I] (2010) 232 CTR (St) 231" 8. Reliance was placed on the decision of the Bombay High Court in CIT Vs. ABG Heavy Industries Ltd & Ors. reported in 231 CTR 127/322 ITR 323. 11. We have heard the learned counsel for both the sides. 12. The provisions of Section 80-IA (4)(i) and 'explanation' reads as follows: Section 80-IA (4)(i) "(4) This section applies to-- (i) any enterprise carrying on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility which fulfils all the following conditions, namely :-- (a) it is owned by a company registered in India or by a consortium of such companies or by an authority or a board or a corporation or any other body establis....
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....evident from the explanation. Therefore, the word contained therein has wide amplitude. The Assessing officer was not correct in prescribing certain limits and describing the nature of work. In other words, the assessing authority attempts to dissect the contract and hold that it does not justify the claim for deduction. That we are not inclined to accept such an Endeavour which is legally impermissible. If the requirement of Section 80-IA (4)(i) and Section 80-IA (4)(i)(c) explanation is satisfied, then the benefit has to flow. 14. The provisions of Section 80-IA (4)(i) applies to an enterprise carrying business of a developer, who satisfies the requirement of Section 80-IA 4(i)(a)(b) and provides an infrastructure facility as set out in the explanation. 15. If the provision is read as a whole and the explanation is read in terms of the said provision, it would amply be clear from the facts of the present case that the assessee in this case is an enterprise carrying on the business of a developer, has entered into an agreement with the Central Government or the State Government or an authority prescribed under Section 80-IA (4)(i)(b) and has provided the infrastructure facil....
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....o cases is that where the question relating to assessment does not vary with the income every year but depends on the nature of the property or any other question on which the rights of the parties to be taxed are based, e.g., whether a certain property is trust property or not, it has nothing to do with the fluctuations in the income; such questions if decided by a Court on a reference made to it would be res judicata in that the same question cannot be subsequently agitated." 14. One of the decisions referred to by the Full Bench was the case of Hoystead &Ors. v. Commissioner of Taxation 1926 AC 155. Speaking for the Judicial Committee Lord Shaw stated: "Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be proper apprehension by the Court of the legal result either of the construction of the document or the weight of certain circum- stances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principal of law that this cannot be permitted, and there is abundant authority reiterating that princi....
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....he terms of the agreement arrived between the parties at arm's length, the Supreme Court in the case of Mangalore Ganesh Beedi Works vs. Commissioner of Income Tax, Mysore, (2016) 2 Supreme Court Cases 556, disapproved such an endeavour as impermissible. It approved the view of the Delhi High Court in D. S. Bist & Sons vs. Commissioner of Income Tax, (1984) 149 ITR 276 (Del). "32. In this context, it may also be mentioned that by denying that the trade marks were auctioned to the highest bidder, the Revenue is actually seeking to re-write Clause 16 of the agreement between the erstwhile partners of MGBW. This Clause specifically states that the going concern and all the trade marks used in the course of the said business by the said firm and under which the business of the partnership is carried on shall best in and belong to the highest bidder. Under the circumstances, it is difficult to appreciate how it could be concluded by the Revenue that the trade marks were not sanctioned off and only the goodwill in the erstwhile firm was auctioned off. In D. S. Bist & Sons vs. CIT, it was held that the Act does not clothe the taxing authorities with any power or jurisdiction ....