2021 (2) TMI 868

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....n the file of the Income Tax Appellate Tribunal, 'D' Bench, Chennai ('the Tribunal' for brevity) for the assessment year 2014-15. 2. The appeal was admitted on 27.11.2019 on the following substantial questions of law: "(i) Whether on facts and circumstances of the case, the Tribunal is correct in rejecting the claim under Section 80IA of the Act on the ground never urged or argued before the authorities below? (ii) Without prejudice, based on the material available on record, has the Tribunal erred in stating that the Appellant has not carried on operation and maintenance activities? (iii) Whether the Audit Report in Form 10 CCB cannot be filed at the time of the Assessment Proceedings? ....

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....onies expended on construction of infrastructural facilities as envisaged in Section 80IA of the Act?" 4. We have heard Mr.Srinath Sridevan, learned counsel for the appellant and Mr.Karthik Ranganathan, learned Senior Standing Counsel, assisted by Mr.S.Rajesh, learned Junior Standing Counsel appearing for the respondent/Department. 5. The appellant-assessee is a subsidiary of L&T Infrastructure Development Projects Limited incorporated in 2008. The assessee was awarded the contract, which is termed as a Concession Contract in respect of Six-laning of Chennai-Tada Section on NH-5 from KM 11.00 to KM 54.40 (Length of 43.40 KM) in the State of Tamil Nadu to be executed as Build, Operate and Transfer-BOT (TOLL) on DBFO Pattern under NHDP ....

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....peal. The Revenue raised a plea by placing reliance on the CBDT Notification No. S.O.1513(E) dated 11.6.2013, where under the Income Tax Rules was amended with effect from 01.04.2013 and the filing of the statutory form was made mandatory. The CIT(A) considered the said argument of the Revenue and held that though the rule has been amended and filing of such form along with the return of income was made mandatory, held that violation of the said rule would not take away the substantive right of the assessee in claiming a deduction under Section 80IA. Ultimately, the appeal stood allowed on the above ground in favour of the assessee. The CIT(A) also opined that, at best, it can be only a procedural formality and cannot deny the substantive r....

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....ioned above, the Tribunal did not go into the question as to the effect of the mandate under Rule 12(2), but proceeded to hold that the assessee Company has not derived any profits from the activities of developing or operating and maintaining any infrastructure facilities. 14. Firstly, we need to mention that there are absolutely no examination of the factual position in the case on hand. The Tribunal did not go through the Concession Agreement based on which the assessee Company had been granted the development work. 15. Furthermore, Section 80IA(4) would apply to any enterprise carrying on business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility which fu....