TaxTMI 
TaxTMI 
2021 (5) TMI 1098
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....ppeal against the CIT(A)'s-4, Hyderabd's order dt.31.3.2016 in case No. 440/Addl. Range-6/14-15/CIT(A)-4/Hyd/15-16 for Assessment Year 2010-11; the CIT(Appeals)-12, Hyderabad's order dt.16.8.2017 passed in case No.0154/2016-17 for Assessment Year 2011-12; the CIT(Appeals)-6, Hyderabad's order dt.6.2.2018 in case No.0218/2015-16/B2/CIT(A)-6 for Assessment Year 2013-14 in section 143(3) proceedings and the CIT(Appeals)-6, Hyderabad's order dt.24.10.2018 passed in case No. 10145/2017-18/B3/CIT(A)-6 for Assessment Year 2014-15 in section 143(3) r.w.s. 144C proceedings respectively. Heard both the parties. Case files perused. 2. Both the parties submitted at the outset that the assessee's sole substantive ground raised herein challenges correctness of the learned lower authorities' action disallowing u/s. 80IA(4) deduction claim(s) of Rs.16,95,430; Rs.1,92,03,708; Rs.1,74,69,336; Rs. 69,12,651; Rs. 3,58,92,513; Rs. 14,54,470 and Rs.1,07,78,405; assessment year-wise, respectively. And that this tribunal's first round combined remand directions dt.8.3.2013 in ITA No.517/Hyd/2010 involving M/s. NEC-NCC Maytas Joint Venture Vs. ACIT and its own appeal I....
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....ncome-tax Appellate Tribunal, Mumbai Special Bench in the case of M/s. B.T. Patil & Sons, Belgaum in ITA Nos. 1408 and 1409/Hyd/2003 dated 26-10-2009 rejected the assessee's contention by holding that the assessee must fulfill all the conditions set out in sub-clause (a)(b) and (c) of section 80IA(4)(1) of the Act for claiming deduction. In other words, the CIT (A) held that the assessee must develop, maintain and operate the infrastructure facility to avail deduction u/s 80IA(4)(1). The CIT (A) held that the Explanation u/s 80IA(13) introduced w.e.f. 1-4-2000 further makes it clear that a person executing works contract awarded by Central and State Government shall not be eligible for deduction u/s 80IA of the Act. The CIT (A) further held that since the assessee has executed the work merely as a contractor without being involved in maintaining and developing infrastructure facility, it is not entitled to claim deduction u/s 80IA(4) of the Act. 4. The learned AR submitted before us that different benches of Tribunal including the Hyderabad Bench in a number of cases upheld that the contractor can be a developer depending upon the terms and conditions of the contract a....
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....be entitled to claim deduction 80IA(4). The learned AR vehemently contented that the assessee in fact is involved in all stages of development like designing, execution of all civil works like canal manufacture, testing at manufacture works etc. It is entitled to claim deduction u/s 80IA (4) of the Act. The learned AR also relied upon the following decisions in support of his contentions :- i) Income-tax Appellate Tribunal, Hyderabad Bench "B" in the case of GVPR Engineers Limited V/s. ACIT and vice versa in ITA Nos. 347/Hyd/2008 and 17 other appeals dated 29-2-2012. ii) Order of Income-tax Appellate Tribunal Chennai B- Bench in ACIT V/s. Chett5inad Lignite Transport Services (P) Ltd./ in ITA Nos. 1312 and 1313/Hyd/2011 for the assessment years 2007-08 and 2008-09 dated 18-11-2011. iii) order of Income-tax Appellate Tribunal Chennai Bench "C" in ACIT V/s. RR Constructions in ITA No.2061/Mad/2010 for the assessment year 2007-08 dated 3-10-2011. iv) Order of Jaipur A Bench of Income-tax Appellate Tribunal in Om Metals Infra Projects Limited V/s. CIT in ITA Nos. 722 and 723/JP/2008 for the assessment years 2003-04 and 2004-05 dated 31-12-2008. ....
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....ertakes anyone of the three activities viz., developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility would become eligible for deduction u/s 80IA(4) of the Act. 8. The co-ordinate bench in the said decision further held that for availing deduction u/s 80IA (4) of the Act the assessee need not be the owner of the infrastructure facility. The only requirement under clause (1) (a) of section SOIA (4) is that the enterprise which is executing the work should be owned by a company. In view of the clear statutory language and the ratio laid down by the co-ordinate bench in case of M/s. Sushee Hi Tech Construction Pvt. Ltd Vis. DCIT (supra), claim of deduction u/s. 80IA (4) cannot be denied on the ground that the assessee has not carried out all the three activities and it is not an owner of the infrastructure facility. However, it is further evident from the orders of the revenue authorities that the claim of deduction also has been disallowed on the ground that the assessee has not executed the work as a developer but has acted merely as a contractor. In this context, the learned AR has vehemently contended that ....
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....as actually carried on development of the infrastructure facility cumulatively with all the activities of design, development, engineering,. Construction, maintenance, financial involvement, defect correction and such other ancillary and incidental work connected with the development of the project. The assessee has to establish by producing evidence on record that it has developed the project and has not executed the work merely as a contractor. Since these aspects have not been looked into properly, we are inclined to remit the matter back to the Assessing Officer who shall examine the issue afresh after considering the contract documents in its entirity and all other evidences that may be submitted by the assessee. If the assessee is able to establish the fact that it itself has carried out the development of the infrastructure facilities along with design, development, operation and maintenance, financial involvement, defect correction of the contract during the warranty period, then such contract should be considered as a development of infrastructure facility executed by the assessee and claim of deduction u/s 80IA (4) should be allowed. Accordingly, we set aside the order of....
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....ng the observations made by the revenue authorities contended that the design of all the electro mechanical works was done by the assessee as per the terms of the contract. It was submitted that the assessee has developed only one project during the relevant year and not many as observed by the CIT(A). It was further submitted that the contract is on turn key basis and the assessee has developed the infrastructure facility by making huge financial investment for execution of project and also employed technical personnel for executing the work. It was further submitted that the technological risks undertaken in the design and drawings on various types of machinery to the satisfaction of the government for executing the infrastructure related work is huge which is very much apparent from the tender document. The learned AR submitted that if the contract document is read as a whole, then there will be no room for doubt that the nature and scope of work as envisaged under the contract involves planning, designing, developing and maintaining the project. The learned AR in support of his contentions relied upon the decision in the case of Sushee Hi Tech Constructions Private Limited (sup....
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....M/s. NEC-NCC Maytas Joint Venture has declined the concerned of section 80IA deduction in its order dt 12.05.2021 as under : ITA No. & Asst. Year Appellant Respondent 430/Hyd/2016 2007-08 M/s. NEC NCC MAYTAS - JV, VI-1, 6-3-652, Dhruvatara Apartments, Somajiguda, Hyderabad. PAN AAAAN 3690E ACIT, Cir.6(1), Hyderabad. 431/Hyd/2016 2008-09 -do- -do- ORDER The instant batch of nine cases pertains to a single assessee M/s. NEE-NPC-Mytas-JV. All these nine appeals arise against the Commissioner of Income Tax (Appeals)-12, Hyderabad's order dt.16.08.2017 in case No.0149/2016-17 for Assessment Year 2006-07; the CIT(Appeals)-9, Hyderabad's common order dt.31.12.2015 passed in case Nos.0273/ACIT, Circle 6(1)/2015-16; 0311/ACIT, Circle 6(1)/2015-16 and 0339/ITO, Ward 6(1)/2015-16 in Assessment Years 2007-08, 2008-09 and 2010-11; the CIT(Appeals)-9, Hyderabad's order dt.7.7.2017 in case No.0231/ITO, Ward 6(1)/2016-17 for Assessment Year 2009-10 and CIT(Appeals)-6, Hyderabad's separate orders; all dt.26.2.2018 in case Nos.1165/2014-15/B1/CIT(A)-6; 0034/2015-16/B2/CIT(A)- 6; 0037/2016-17/B2/CIT(A)-6 and 0460/2016- 17/B2/CIT(A)-6 for As....
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....r and the assessee is not a developer and only a contractor. ii) The assessee is not the owner of the infrastructure facility and has executed the work on EPC (Erection, Procurement and Construction) basis. 2. The sole grievance of the assessee in the present appeal is with regard to the disallowance of deduction claimed u/s 80IA (4) of the Act. Briefly the facts of this issue are the assessee is a joint venture formed by three companies viz., Navayuga Engineering Company, Nagrjuna Construction Company and Maytas. The assessee entered into a contract with the Government of Andhra Pradesh Irrigation and CAD Department represented by the Superintending Engineer, Pebbair. The contract is for the execution of the works known as "BLIP-Lift-II at Thirumalayapally & Mothakota (Village) of Kothakota Mandal, Mahaboobnagar District, Andhra Pradesh on EPC basis". The assessee filed its return of income for the impugned assessment year on 31-10-2006 declaring 'nil' income after claiming deduction of Rs.2,85,67,175/- u/s 80IA (4). In course of scrutiny assessment proceedings, the Assessing Officer raised query with regard to the claim of deduction u/s 80IA (4) of the A....
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....and commissioning of all units and handing over to irrigation authorities in complete shape. The learned AR relying upon a decision of Income-tax Appellate Tribunal, Hyderabad Bench in case of M/s Sushee Hi-tech Constructions Pvt. Ltd V/s. DCIT (ITA Nos. 269 and 1165/Hyd/2009 and ITA No. 1171/Hyd/2010 dated 16th March, 2012 submitted that the assessee is not required to be the owner of the infrastructure facility for availing deduction u/s 80IA (4) of the Act. Relying upon the same decision, it was further submitted that the assessee has to fulfill any one of three conditions i.e., (i) developing (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility could be entitled to claim deduction 80IA(4). The learned AR vehemently contented that the assessee in fact is involved in all stages of development like designing, execution of all civil works like canal manufacture, testing at manufacture works etc. It is entitled to claim deduction u/s 80IA (4) of the Act. The learned AR also relied upon the following decisions in support of his contentions :- i) Income-tax Appellate Tribunal, Hyderabad Bench "B" in the case of GVPR Enginee....
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....2008 for the assessment years 2003-04 and 2004-05 dated 31-12-2008. v) Order of ACIT V/s. Bharat Udyog Ltd. (123 TTJ 689) vi) Order of Income-tax Appellate Tribunal Mumbai "F" Bench in Patel Engg. Ltd. V/s. DCIT in ITA Nos. 1221/Mum/2004 for the assessment year 2000-01 dated 22nd June, 2004 (94 ITD 411). 5. The learned Departmental Representative supporting the order of the revenue authorities submitted that the assessee has executed the work mainly as a contractor and hence he is not entitled to avail deduction u/s 80IA(4) of the Act. 6. We have heard rival submissions and perused the material on record. We have also applied our mind to the decisions citied before us. Section 80IA(4) allows deduction to an enterprise carrying on business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility if the following conditions are fulfilled. a) The enterprise is owned by a company registered in India or by a consortium of companies b) It has entered into an agreement with the Central Government or State Government or local authority or any other statutory body for ....
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....ly as a contractor. In this context, the learned AR has vehemently contended that the assessee has not acted merely as a contractor but was involved in planning, designing, manufacturing and all other ancillary and incidental activities of executing the project as per the terms of the contract. In this context, the learned AR also submitted that the revenue authorities have not examined the contract properly before coming to their conclusion. After going through the orders of the revenue authorities, we find that the Assessing Officer has treated the assessee as a contractor merely because the agreement between the assessee and the government reads as contract agreement and Suptt. Engineer representing the AP Government is mentioned as the employer and the assessee is mentioned as a contractor. The CIT(A) has also endorsed such a view by observing that the assessee is not involved in the planning and development of infrastructure. However, before coming to such a conclusion, the contract has to be read in its entirety for finding out the true nature and scope of the work which in our view has not been done in the present case. The co-ordinate bench in the case of M/s Sushee Hi Tech....
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....f deduction u/ 80IA (4) should be allowed. Accordingly, we set aside the order of the CIT(A) and direct the Assessing. Officer to-decide the Issue afresh keeping in view the observations made by us hereinabove. The Assessing Officer shall afford a reasonable opportunity of being heard to the assessee before the final order is passed. 9. In the result, the appeal filed by the assessee i.e. ITA No. 517/Hyd/10 is treated as allowed for statistical purposes. It is in this backdrop that we deal assessee's appeal ITA No. 496/Hyd/2018 for Assessment Year 2006-07 as the lead case. 3. Mr. Afzal next took us to the Assessing Officer's consequential second round order dt.28.2.2014 reiterating the impugned section 80IA(4) deduction disallowance of Rs.2,85,67,175 as follows : ---Space left intentionally------- 2. For the A.Y.2006-07, assessee filed its return of Income on 31.10.2006 admitting NIL taxable income after claiming deduction u/s 80IA at Rs.2,85,67,175/-. Assessment u/s 143(3) was completed on 28.07.2008, denying the deduction claimed u/s 80IA. Income was accordingly assessed at Rs. 2,85,67,175/-. CIT(A)-Tirupati upheld the assessment vide appellate ....
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.... d. The 'work' was awarded to the assessee on the basis of successful 'bidding' of 'tender'. e. Bidding for tender work was done by many companies including the assessee. f. The agreement refers to the assessee as merely a contractor executing the works awarded to it, but not as a developer. 6. From the above, it is clear that the nature of work done by assessee is in the nature of 'works contract', but not development. At this point, it would not be out of place to dwell upon the eligibility for deduction vis-à-vis legislative intention behind the Section. 7.1 The Budget Speech for 1995-96 which was delivered by Sri Manmohan Singh, then Minister of Finance, on 15th March, 1995, has set the tone for private sector participation in accelerated development of infrastructure in India, which was, hitherto, in the domain of the public sector only. The relevant point is extracted as under : "56. Inadequate infrastructure is a key constraint to our economic progress. In order to promote expansion of quality infrastructure, I propose to allow a five-year tax holiday for any enterprise which builds, ....
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....lowed to companies who simply build the whole or part of the facility with the resources provided by the government. It was never the intention to block the government funds in infrastructure project and still grant deduction u/s 80IA. The concept of 80IA was based on a mix of 'builder cum operator' who could develop the infrastructure facility and later recover its cost by operating the same. The concession is essentially granted in recognition of the intensive capital investment made by the private company so as to enable it to recover the costs and make profit for a limited period, before transferring the facility to the government. 7.5 From the above, it can be seen that the assessee does not qualify for deduction. The reasons are elaborated as under : a. Nomenclature used in work order : The agreement is termed as 'contract agreement'. In the definition clause, the nomenclature adopted shows that assessee is termed as `hereinafter called the "contractor". This shows that the assessee is only executing the works in the status of a contractor. b. Nature of agreement : The agreement is termed as 'contract agreement&....
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....e), natural factors (floods, earthquakes), political factors (compliance and regulations of government). The nature of various business risks and the assessee's exposure to them are examined : i. Strategic risk : Entrepreneur scouts the business environment for business opportunities and embarks upon business adventure, depending upon his proven capabilities and potentialities. Uncertainty with regard to all of the internal and external risks sampled above, renders the goalposts hazy and brings in a strategic risk to be alleviated through prudent planning. In this case, there is no uncertainty whatsoever. The project is offered in a basket of predesigned specifications, and the goalpost is clear - to execute the project according to laid down specifications, commission the project, render basic maintenance. There is no element of strategic risk whatsoever. ii. Operational risk : It consists of two dimensions : a. Process management factors like nature of technology to be utilized, production and engineering aspects impart a dimension of operational risk. The business is concerned with technology decisions, as to what technology should be sour....
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....dity risk etc. Businessman confronts his investment decisions with optimum leveraging of debt and equity. In the process, he needs to ensure reasonable rate of return for the equity investor and sufficient margins to match timely interest outgo. In this case, a. There is no initial investment other than the Earnest Money Deposit (EMD), which is sourced by the JV partners. b. There is neither equity capital nor debt raised from financial institutions. So, investment risk is absent. c. Mobilization advance is given to the JV in the initial stages, and also periodically from time to time. d. The assessee has no capital investment in machinery/fixed assets. Even for the capital investment by the partners and for working capital, sourcing through mobilization advance. e. Further, the assessee is in receipt of bill-to-bill payments from time to time. So, there is no credit risk or liquidity risk. f. Any amount of Financial risk due to external reasons beyond the control of the assessee is further nullified by the presence of cost escalation clause in the agreement. In view of the above, as the assessee has no financial risk, ....
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....kes it evident that the assessee bears no risk at all, which precludes it from any justification for tax concession. g. Role in designing : One of the parameters that can be employed to judge the difference is whether the assessee is involved in design and execution or merely execution based on instructions. In this case, the assessee has no role in generating design. The specifications are predetermined by the time the bidding commences and the assessee is required to merely execute the work as per the specifications which form a part of the bid inviting document. Therefore, the assessee has no role in designing. The assessee's role is limited tc execution as per instructions. h. Whether the work executed can be called as an 'infrastructural facility'. It is seen whether the work undertaken by assessee can qualify to be called as 'irrigation project' in the first instance and thereby, as an infrastructure facility. The term 'irrigation project' has not been defined in the Act. The words 'irrigation' and 'project' have general meanings, but the term 'infrastructural facility' being an 'irrig....
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.... M/s. KNR-SLEC (JV) 36.98 21 Investigation, Designs and excavation of left main canal, distributary system including construction of CM & CD works from budpur Balancing reservoir, Budpur (V), Atmakur (M). Mahabubnagar (D) to feed about 32.000 Acres M/s. S.V.E.C. Co .. 60.39 22 Investigation, Designs and excavation of right main canal, distributary system including construction of CM & CD works from budpur Balancing reservoir, Budpur (V), Atmakur (M), Mahabubnagar (D) to feed about 32,000 Acres M/s. S.V.E.C. Co., 26.73 27 Investigation, Design, excavation of left main canal, distributary system including construction of CM & CD works from Sankarsamudam Balancing Reservoir M/s. KNR Const. L.td. & BPL (JV) 149.40 OC LIFT-I : Design, manufacture, supplying & erection of pumps, motors, electro mechanical works, including tunnel, cistern and pump house etc. M/s. Patel Engg. Ltd. 383.349 OC Design and execution of Stage-I and stage-II pumping stations of LIFT-II at Thirumalayapalli & Kothakota (M), Mahabubnagar (D) on EPC basis. M/s. NEC-NCC- MAYTAS (JV) 391.55 TOTAL 1417.919 It can be see....
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.... contract. But the role of the developer continues, as he has to recover his investments and costs. In order to recover his costs, the enterprise has to operate it and realize returns from it. From the above, it is amply clear that the benefit of deduction was meant by the legislature to be extended only to those private enterprises which developed infrastructure facilities in the enhanced role of a developer, but not merely as a 'works contractor'. j. Non-relevance of Board Circular no. 4/2010 dt. 18.05.2010 : Assessee referred to Board's Circular no. 4/2010 dt. 18.05.2010 in its support. It is clarified that the said circular is not relevant to the assessee as the Circular answered a specific reference as to whether widening of existing roads constitutes creation of new infrastructure facility. The assessee's contract work is not related to widening of existing roads, and hence the Circular has no bearing in this case. k. Revisiting legislative intention : In para E above, the legislative intention behind the insertion of 'Section 80IA' in the statute has been discussed. The legislative intention behind insertio....
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.... the infrastructure facility, as claimed in the Form 10 CCB, but it is only executing the work for completion of the said infrastructure facility as a contractor. The assessee was merely issued work order by an authority of state government. The assessee company is one among the contractors who successfully bid the piece of work notified by the State Government. The ownership of the asset created rests with the State Government awarding the contracts and the assessee company is merely carrying out work as per designs and specifications provided. The work executed is only partial and sectional and cannot be termed as an independent facility. There is no component of 'design' of the project by the assessee and its activities do not span the comprehensive basket of activities that characterize `develop, operate and maintain'. The presence of multi-dimensional entrepreneurial risks that would warrant tax fillips, is conspicuous with its absence. Further, with the amendment to Explanation of Section 80IA with retrospective effect in Finance Act 2009, any vestiges of doubt are thoroughly dispensed with, and the ineligibility of the assessee for the said deduction cannot be ov....
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....aimed of Rs. 2,85,67,175/- is disallowed and added back to the income chargeable to tax. The CIT(Appeals) admittedly confirmed the Assessing Officer's action. This is what leaves the assessee's aggrieved. Mr. Afzal vehemently submitted during the course of hearing that both the lower authorities' have erred in law and on facts in disallowing assessee's 80IA(4) deduction claim despite the fact that it has developed the impugned infrastructure facilities. He has further filed a detailed written synopsis summarizing assessee's arguments as under : " 1. The assessee herein is a Joint Venture Maytas NCC JV. The Joint Venture is a Consortium of Maytas Infra Ltd. (Presently known as IL & FS ECC Limited) and Nagarjuna Construction Company Limited (Presently known as NCC LIMITED) and engaged in development of irrigation projects which are defined as infrastructure facilities. During the financial year 2005-06, the assessee undertook 6 different infrastructure facilities being irrigation projects. The details of the projects eligible for deduction u/s 801A are mentioned at page 18 of the paper book. 2. The assessee submits that it is a consortium of c....
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.... appellant develops infrastructure facility for becoming entitled for deduction u/s 80IA of the Act. 8. At para 7.4 the learned CIT (A) refers to the decision of the Hon'ble High Court of Bombay in the case of ABG Heavy Industries and held that though the assessee develops only part of the infrastructure facility, it does not bar the assessee from claiming deduction u/s 80IA. 9. At para 7.6, the learned CIT(A), refers to the order of the CIT (A)-4, Hyderabad and held that the works executed by the assessee are not simple works contracts but they are the development of infrastructure facility. The learned CIT (A) also extracted the relevant portion of the order of the CIT (A)-4, Hyderabad. 10. Against the said decision, the Department is in appeal before the Hon'ble Income Tax Appellate Tribunal." 5. Mr. Afzal also took pains to place on record the assessee's twin sheets containing architectural design of stages I and II of Bhima Lift Irrigation Project containing "design and execution of all civil works like canal approach to the tunnel, tunnel, surge pool pump house, delivery mains, etc." His case in light of the assessee's stand adopt....
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....first round, he Hon'ble ITAT, while setting aside the order of the CIT(A), and directing the AO to decide the issue afresh, has directed that the assessee has to show that it has actually carried on development of the infrastructure facility cumulatively with all the activities of design, development, engineering, construction, maintenance, financial involvement, defect correction and such other ancillary and incidental work connected with the development of the project in relation to claim of deduction u/s. 80IA(4) of the Income Tax Act. The Hon'ble Bench has also directed examination of the issue that the assessee developed the project and not executed the work merely as a contractor. 2. It is submitted that neither before AO nor before the CIT(A), the assessee could establish that it has developed the project both in terms of entrepreneurial risk and financial involvement. Firstly, the assessee is a mere JV with no assets and no wherewithal to execute the project. As can be clearly seen from the JV Agreement, the work was distributed among the partners of JV who executed the work and are separately filing returns and are separately being assessed. When the asses....
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....the Explanation which were added by the Finance Act,2009(w.e.f. 1.4.2000), it is submitted that the same are only clarificatory and the key factors of 'Entrepreneurial Risk' and 'Financial involvement' are mandatory even before the inclusion of said words in Sec. 80IA as well as Explanation to Sec.80IA of the Income Tax Act. 6. In summary, it is humbly submitted that on both the aspects of executing of the work and entrepreneurial risk and financial involvement, the claim of the assessee falls flat and appeals filed by assessee may kindly be dismissed." 7. Mr. Afzal has strongly reiterated the assessee's stand claiming itself as developer of the lift irrigation project in question. 8. We have heard the foregoing rival submissions qua the instant issue of section 80IA deduction. The assessee has admittedly claimed the same taking itself as the developer by court that a corresponding commercial project firm of "infrastructural facility" as per section 80IA(4) Expln.(c) covering "a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system" only. Our attention has been....
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....this stage quoted Katira Constructions Limited Vs. Union of India and Others (2013) 352 ITR 513 (Guj) upholding vires of the latter explanation that the same is purely explanatory in nature than amending the existing provision and therefore, the question of it being levying any tax with retrospective effect would not rise. It is thus explicitly clear that their lordships have held this latter explanation in the nature of a plain and simple one; neither adding nor subtracting anything to the earlier explanation, inserted vide Finance Acts, 2009 and 2007; respectively. Learned CIT-DR further sought to pin point the fact that the latter explanation inserted vide Finance Act, 2009 w.e.f. ; 1.4.2000 has rather covered a work contract as not entitled for the impugned deduction despite the fact that the concerned assessee satisfied all other conditions in sub-section (4) of section 80IA of the Act. We find force in Revenue's instant argument as the Finance Act, 2009 substitutes the earlier explanation that the same would not cover a works contract for the purpose of providing deduction qua industrial undertaking or enterprise engaged in infrastructure development, etc. ....
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....nce Act, 2009 w.e.f. 1.4.2000. Learned CIT-DR at this stage invited our attention to page 18 in assessee's Paper Book II Part 1 that it had purely executed "works contract" only in view of the fact that the irrigation department had issued it mobilization advances on multiple occasions from time to time. He next took us to agreement clause 3.15 containing "contract price and payment" making it evident that the assessee had to be paid on "fixed lump sum monthly basis" only. And further that the assessee was entitled to get "fixed lump sum monthly instalment payments provided value of the work executed is more than or equal to the fixed lump sum monthly instalment as indicated in the agreement." The said agreement stipulated advance payments to the assessee qua supply of goods at the site. All these facts sufficiently indicate that the assessee, assuming that not accepting that it is the developer u/s. 80IA(4) of the Act, executed a works contract only under Explanation to section 80IA of the Act and therefore, not entitled for the impugned deduction. 14. The assessee next made a very strong endeavour to place reliance on a catena of case law (supra) including C....