2022 (2) TMI 1092

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....The assessment was framed by the ACIT, Non-Corporate Circle 10(1), Chennai for the assessment year 2011-12 u/s.143(3) r.w.s. 147 of the Act, vide order dated 31.08.2016. 2. At the outset, it is noticed that the appeals in ITA No.1985 & 1986/Chny/2013 for assessment years 2009-10 & 2010-11 are time barred by 136 days. The Revenue has filed condonation petition along with affidavit stating the reason that the order of CIT(A)-XII, Chennai was received on 29.04.2013 and accordingly appeal was filed on or before 28.06.2013, which is within time limit. It was submitted that combined appeal for all three years were filed on 27.06.2013 as the order of CIT(A) for all three assessment years was a combined order. It was stated by the ld. Senior DR that subsequently when the office of Senior Authorized Representative of ITAT, Chennai vide office letter No.ITA 1444/13 dated 30.10.2013 informed the AO to file separate appeals for each of the years, since filing of one combine appeal for three years is procedurally incorrect. Accordingly separate appeals were file for these two assessment years i.e., 2009-10 & 2010-11 on 11.11.2013 with a delay of 136 days. Hence, the ld.Senior DR stated that th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....is applicable only for companies registered in India. 2.5 The Id.CIT(A) failed to note that in the above circumstances, the assessee cannot be considered to have satisfied the conditions prescribed in Section 80IA. 5. Brief facts are that the assessee is a contractor for Indian Railways and carried on the work of construction of rail over bridges (ROB), foot over bridges (FOB), construction of new railway station buildings, etc. The assessee stated before the AO as well as before the CIT(A) that the work executed by it are in the capacity of a developer and not as a contractor. The assessee relied on the following:- 1) CBDT Circular No.4/2010 (F.No.178/14/2010-ITA.1) dated 18.05.2010 2) Case law of Patel Engineering Ltd vs. DCIT reported in 94 ITJ(Mum) 646 and ACIT vs. Bharat Udyog Ltd., reported in 123 ITJ 689. 3) Decision of ITAT in the case of Mahalaxmi Construction by following the decision of Third Member Bench in the case of M/s. B.T.Patil & Sons Belgaum Constructions P. Ltd., vs. ACIT, 126 ITJ (Mum) (TM) 577. 4) Decision of ITAT, Hyderabad in the case of Sushee Infra Pvt. Ltd in ITA No.1826/Hyd/2014 dated 04.12.2015. 5) Decision of ITAT, Chennai in the case of R....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive assessment years. (2) ....................... (2A) ..................... (3) ....................... (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 established or constituted under any Central or State Act; (b) it has entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility; (c) it has started or start....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....gs, their activities in contributing raising of infrastructure. Further, in the explanation attached to the sub-section, the legislature has also entrusted the meaning of the infrastructure facilities. In our opinion, an assessee while claiming deduction has to satisfy all conditions in subsection 4(1)(a) or (b) or (c). It is mandatory for the assessee to first satisfy subsection clause i(a), then (b) then (c), then proviso and so on. In case the concerned assessee fails in any one of the clauses, even if it satisfies the other part of the sub-section, the claim has to be rejected. Now we proceed to decide as to whether the assessee firm satisfies sub-section 4(i) of the "Act" or not. For the said sub-section, a reading of the provision makes it unambiguous that the concerned claimant has to be an enterprises carrying on the business of developing or operating and maintaining or developing, operating and maintaining any infrastructure facility and it has to be owned by a consortium of such company or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act. Admittedly, the assessee is a partnership firm. As we notice ....