AI Drafter 
TaxTMI 
TaxTMI 
2023 (5) TMI 111
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....d. DRP erred in affirming the action of Ld. AO in disallowing deduction claimed u/s 80IA (4) of the Act. 2. That on the facts and circumstances of the case and in law, the Ld. DRP erred in affirming the action of Ld. AO in denying the benefit u/s 80- IA(4) of the Act by observing that the assessee does not have any agreement with specified authority without appreciating the fact that the agreement entered into by assessee with KSPL was as per the terms of the parent Concession Agreement between KSPL & Government of AP, and with the knowledge of the Gov. of Andhra Pradesh, as such, the assessee could not be denied deduction u/s 80-IA(4). 3. That on the facts and circumstances of the case and in law, the Ld. DRP erred in affirming the action of Ld. AO in not considering the fact that the assessee had produced the Port Certificate granted by the specified authority which certified that the infrastructure facility developed by the assessee is an integral part of the Port and that the Port Certificate in itself would amount to agreement with government, thereby satisfying the condition prescribed in clause(b) of Section 80IA(4) (i). 4. That on the facts and ci....
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....cility to the GoAP or Specified Authority without considering the fact that this condition has been deleted by the Finance Act, 2001. 10. That on the facts and circumstances of the case and in law, the Ld. DRP erred in affirming the action of Ld. AO in disallowing interest of Rs. 5,85,392/- on late payments of TDS u/s 40 of the Act. 11. Your appellant craves leave to add to, amend or alter or delete any of the above grounds of appeal." Grounds of appeal for Assessment Year 2016-17 "1. That on the facts and circumstances of the case and in law, the Ld. DRP erred in affirming the action of Ld. AO in disallowing deduction claimed u/s 80IA(4) of the Act. 2. That on the facts and circumstances of the case and in law, the Ld. DRP erred in affirming the action of Ld. AO in denying the benefit u/s 80- IA(4) of the Act by observing that the assessee does not have any agreement with specified authority without appreciating the fact that the agreement entered into by assessee with KSPL was as per the terms of the parent Concession Agreement between KSPL & Government of AP, and with the knowledge of the Gov. of Andhra Pradesh, as such, the assessee ....
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....(i) is not mandatory in nature, as held by the Hon'ble Bombay High Court in the case of United Liner Agencies of India (P) Ltd [ITA No. 2462 of 2013], and as such, the appellant is eligible for deduction under Section 80-IA(4) of the Act read with the Agreement entered into with M/s. KSPL. 9. Without prejudice to the above, on the facts and circumstances of the case and in law, the Ld. DRP erred in denying claim of deduction in terms of the first proviso to section 80IA(4)(i) by observing that there is no condition to transfer the infrastructural facility to the GoAP or Specified Authority without considering the fact that this condition has been deleted by the Finance Act, 2001. 10. That on the facts and circumstances of the case and in law, the Ld. DRP erred in affirming the action of Ld. AO in disallowing interest of Rs. 24,43,834/-on late payments of TDS u/s 40 of the Act. 11. Without prejudice to the above, on the facts and circumstances of the case and in law, the Ld. DRP erred in affirming the action of Ld. Assessing Officer without appreciating the facts that the interest on late payment of TDS is Rs. 1,96,354/- instead of Rs. 24,43,834/-. The....
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....te one more berth and operation, maintenance and management of common facilities of the entire port through private participation. The role of KSPL is more particularly defined in Para 3.1 of the concession agreement. KSPL has been appointed as a Nodal agency by the GoAP to take over the existing port and also develop, operate and maintain further infrastructure facilities including new berths. 5.1. Thereafter, GoAP had entered into Supplementary Agreement dated 28.01.2009 whereby it had given permission to KSPL to develop new berths. Accordingly, KSPL has developed Berth No 5. 5.2. After that, KSPL had entered into an agreement with the assessee on 19.04.2012 for the development of the "8 MMTPA Mechanised Coal Handling System for Unloading and Rail Despatch" (in short, Mechanised Coal Handling System) in Kakinada Deep Water Port at Berth No. 5 and its backup area. Thereafter, assessee requested the Custom Authorities to give permission for construction and operation of Mechanised Coal Handling System. In response to the same, the Commissioner of Central Excise, Customs and Service Tax, Visakhapatnam - II Commissionerate, Visakhapatnam has accorded the permission vide letter ....
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....r 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 starts operating and maintaining the infrastructure facility on or after the 1st day of April, 1995: Provided that where an infrastructure facility is transferred on or after the 1st day of April, 1999 by an enterprise which developed such infrastructure facility (hereafter referred to in this section as the transferor enterprise) to another enterprise (hereafter in this section referred to as the transferee enterprise) for the purpose of operating and maintaining the infrastructure facility on its behalf in accordance with the agreement with the Central Government, State Government, local authority or statutory body, the provisions of this section shall apply to the transferee enterprise as if it were the enterprise to which this clause applies and the deduction from profits and gains would be available to such transferee enterprise for the unexpired period during which the transferor enterprise would have been entitled to the deduction, if the transfer had not taken place. Provided furt....
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....ea Ports Ltd. (KSPL) satisfies the second condition prescribed under Section 80IA(4) of the Act. 7.2. Ld. CIT(DR) has placed on record a written submission dated 16.12.2021. It is stated by him that the undisputed factual position in the present case is that the agreement of assessee is with KSPL. From the RoC data available in the public domain, it is observed that KSPL is an unlisted public non-government company. Accordingly, the agreement with KSPL cannot be said to be either with Central Government or State Government or local authority or any other statutory body. According to him, it is undeniable that this second condition contained in Section 80IA(4) is a substantive one and cannot be said to be directory or procedural. Opposing the submission furnished by the assessee, according to him, the only case which has been made out is that the provisions of the Section 80IA is a deduction provision and therefore should be construed liberally. 8. With the aforesaid background, submissions and position of law, we look at the terms and conditions contained in the concession agreement entered into by the Government of Andhra Pradesh and International Sea Ports PTE, Ltd. Singapo....
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....greement that concessionaire will include their respective successors and assignees intending to be legally bound under the agreement. Thus, KSPL as a SPC is responsible for discharge of terms and conditions stated in primary concession agreement as an assignee of ISPL. Furthermore, subrogation has been granted to KSPL (as a SPC) under the approval of GoAP as contained in clause 2.9 extracted above. 9.1. Subsequently, an agreement was entered into between KSPL and assessee. The assessee for establishment of "'8 MMTPA Mechanised Coal Handling System for Unloading and Rail Despatch in Kakinada Deep Water Port at Berth No. 5 and its backup area" vide agreement dt. 19/04/2012. The role of KSPL in the said agreement is depicted before us as under:- 10. From the above, the undisputed fact which emerges is that assessee had entered into an agreement with KSPL. However, KSPL is the SPC of ISPL. Assessee has developed the mechanised coal handling system for unloading and rail despatch, in terms of agreement entered into by it with KSPL. For the purpose of this agreement, assessee obtained approval from Customs Authorities which was accorded by the Office of Commissioner of Customs....
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....gency constituted by the State Government for the purpose of executing road development projects through private participation and was a Government agency as defined in section 2(e) of the Act of 1999. Significant factors in the present case are that the road widening project was cleared by the Government, land for such purpose was alloted by the Government. The concession agreement which GSRDC executed was approved by the Government. It was under the Government Resolution that the assessee would collect toll upon completion of such project. Upon the completion of the project period, the entire infrastructure so developed would vest in the Government. Signatory to the applicant may be GSRDC for all practical purposes and in essence, it was the agreement between the assessee and the State Government. We are conscious that condition-(b) of sub-section (4) of section 80IA requires the assessee to have entered into agreement with the Central Government or a State Government or a local authority or any other statutory authority. However, rigid interpretation of this provision as canvassed by the Revenue would only result into the assessees involved in genuine infrastructure development ....
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....uctures, buildings constructed by or belonging to KSPL or their sub-contractors, sub-lessees and assignees free from all encumbrances and liabilities shall automatically become property of GoAP without any obligation to reimburse therefor. Accordingly, the mechanized coal handling terminal installations of BSSPL shall be taken over by GoAP at the expiry of concession period in accordance with the terms and conditions of concession agreement between GoAP and KSPL. 12.5. Considering the above factual matrix we are of the view that deduction claimed by the assessee under section 80IA(4) cannot be denied. To buttress our view, we place reliance on the decision of coordinate bench of ITAT Mumbai in the case of United Liner Agencies of India (Private) Ltd. vs. JCIT (OSD) 2013 (9) TMI 302 - ITAT Mumbai, which held as follows:- "25.15 The above circular issued by CBDT dated 16/12/2005 has also waived the condition regarding entering into an agreement with the authority and such course of action taken by CBDT was in accordance with the law and Income Tax Authorities administering the Act cannot deny such benefit to the assessee. Therefore, we hold that Ld. CIT(A) has wrongly hel....
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....rtain documents and compliance of other terms and conditions as stated in the letter; The ld. Counsel for the assessee has placed on record letter dt. 27-05-2003 from the Ministry of Commerce and Industry permitting the assessee to set up CFS at Haldia. .......... .......... A perusal of clause 'b' of the above letter shows that the assessee was required to execute necessary bond and guarantees with the concerned Commissioner of Customs and Central Excise. It was only on the compliance of all the terms and conditions mentioned in the aforesaid letter that the assessee was allowed to carry on the services of CFS. The assessee on the compliance of the terms and conditions as mentioned in the letter, was notified as CFS Complex for the purpose of receiving, storing, import containers, receiving/consolidating export cargo etc. vide Public Notice dt.10-11-2013. The Public Notices were issued by the office of the Commissioner of Customs (Port) Kolkata. 8. Thus, it is evident that the proposal of the assessee was accepted by the Government on certain conditions which were duly complied with by the assessee. There may not be any specific agreemen....