TaxTMI 
TaxTMI 
2022 (4) TMI 841
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....hat the assessee firm is engaged in the business of civil & electrical work contract. During the financial year 2015-16 relevant to the AY 2016-17, the assessee has carried out contract work for Corporation of Chennai. During the course of assessment proceedings, the AO noticed that the assessee has filed Profit & Loss A/c, Balance Sheet, copy of contract agreement, documentary evidences for contract receipts, sub-contract receipts and copy of 26AS details. The AO on perusal of these details, noticed that the assessee has declared gross total income at Rs. 1,44,30,543/- and claimed deduction u/s.80-IA(4) of the Act, being engaged infrastructure activity for an amount of Rs. 1,34,41,241/-. The AO noticed that the assessee is a contract not a developer and it does not engaged in development of any infrastructure facility by investing its own funds rather it is executing work contracts awarded by the clients. The AO further noted that the assessee is not beneficial owner and benefit do not accrue to the assessee in any manner other than profit earned on contract work executed. The AO noted that merely by executing the contract relating to project, the assessee cannot be treated as dev....
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....e road by Paver Finisher etc (20 roads) (vi) Letter of Acceptance issued by the Zonal Officer, Corporation of Chennai Zone XV, Sholinganaltur, Chennai -119 at 26.2.2014 issued to the assessee in respect of the work viz, forming and laying of road with GSB and bituminous course road by Paver Finisher etc (31 roads) (vii) Letter of Acceptance issued by the Zonal Officer, Corporation of Chennai Zone XV, Sholinganallur, Chennai - 119 dt. 20.2.2014 issued to the assessee in respect of the work viz. fanning and laying of road with GSB and bituminous course road by Paver Finisher etc (15 roads) 6.6. From the above road projects executed by the assessee, it is crystal clear that the assessee was engaged only for widening the road and for relaying the road. As clarified by the CBDT's Circular reproduced above, relaying of an existing road is not qualified to be a new infrastructure facility for the purpose of claiming deduction u/s.80IA. Therefore, in view of the CBDT's Circular, I am convinced that the assessee is not eligible for deduction u/s.80IA. 4. Aggrieved, the assessee is in second appeal before the Tribunal. 5. We have heard rival contentio....
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.... AO disallowed the claim of deduction u/s.80IA(4) of the Act but the CIT(A) relying on the above cited case laws allowed the claim of the assessee. Aggrieved, now Revenue is in appeal before the Tribunal. 6. At the outset, the ld.counsel for the assessee as well as the ld. Senior DR stated that the issue is squarely covered in favour of Revenue and against the assessee by the Tribunal decision in assessee's own case for the assessment year 2008-09 in ITA No.185/Chny/2012, order dated 15.01.2013, wherein the Tribunal has considered this issue in detail vide para 8 & 9, which reads as under:- "8. We have given our thoughtful consideration to the submissions of both parties and also gone through the findings of the Assessing Officer and CIT(A). The voluminous paper book referred to by the assessee has also been perused. The undisputed facts of the case are that the assessee's claim raised under section 80IA of the "Act" has been negatived by the Assessing Officer as well as the CIT(A) on the ground that it is a contractor and not a developer. At this stage, we deem it appropriate to reproduce hereunder section 80IA of the "Act" providing deduction in respect of profi....
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....feree enterprise for the unexpired period during which the transferor enterprise would have been entitled to the deduction, if the transfer had not taken place. Explanation.-For the purposes of this clause, "infrastructure facility" means- (a) a road including toll road, a bridge or a rail system; (b) a highway project including housing or other activities being an integral part of the highway project; (c) a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system; (d) a port, airport, inland waterway, inland port or navigational channel in the sea; (5) .................. (13) ................ *Explanation. - For the removal of doubts, it is hereby declared that nothing contained in this section shall apply in relation to a business referred to in sub-section (4) which is in the nature of a works contract awarded by any person (including the Central or State Government) and executed by the undertaking or enterprise referred to in sub-section (1). *It introduced by Finance (No.2) Act, 2009 w.r.e.f. 1.4.2000 A perusal of th....
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.... physical or material frame of a man or animal; gang of thieves etc." In our opinion, the said definition being a general preposition does not help the assessee's case. It is a trite preposition of law while interpreting a statute and more so a fiscal statue, neither the judicial forum concerned can insert its own words nor it can take away any from the statute. As it is seen, the earlier portion of the statutory provision prescribes a company registered in India or a consortium of such companies or by an authority or corporation or any other body established or constituted and so on. In our view, the latter part is liable to be read in the light of the earlier part by following the principles of ejusdem generis. The vehement contention of the assessee is that it is also a body established or constituted under a Central Act as it is governed by Partnership Act, cannot be accepted for the reason that under the provisions of Partnership Act a firm is not created i.e. it is not a creation of statute, but it is a body of individual regulated by the statute namely Partnership Act. Hence, we hold that the assessee fails to satisfy the applicability clause of the provision as env....