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2016 (11) TMI 1693 - AT - Income TaxDeduction u/s 80IA(4) - profit from infrastructure development and their operation and maintenance activities - assessee-company is engaged in the business of development of various infrastructure facilities relating to water and sewage treatment and its operation and maintenance - HELD THAT - As decided in own case 2013 (4) TMI 969 - ITAT AHMEDABAD relying on decision of Hon ble Bombay High Court in the case of ABG Heavy Industries 2010 (2) TMI 108 - BOMBAY HIGH COURT as directly applicable on the assessee wherein it was opined that the said assessee entered into a contract for supply installation testing commissioning and maintenance of container handling cranes at JNPT for a term of 10 years whereafter the same would vest in the letter is entitled for deduction u/s.80IA(4). This decision of the Hon ble Court is directly applicable on the facts of the case. Thus as Respected Coordinate Bench has already granted the deduction claimed by the assessee therefore for the years under consideration the assessee is entitled for the deduction u/s.80IA(4) - Decided in favour of assessee.
Issues Involved:
1. Disallowance of deduction under Section 80IA(4) of the Income Tax Act. 2. Definition and distinction between a contractor and a developer. 3. Applicability of the Explanation inserted by the Finance Act, 2009 to Section 80IA. 4. Ownership of infrastructure facilities. 5. Impact of the B.T. Patil & Sons case decision. Issue-wise Detailed Analysis: 1. Disallowance of Deduction under Section 80IA(4): The primary issue in this case is the disallowance of the deduction claimed by the assessee under Section 80IA(4) of the Income Tax Act, amounting to ?8,52,50,413/-. The assessee, engaged in the development of infrastructure facilities, claimed this deduction for profits earned from such activities. However, the Assessing Officer (AO) disallowed the claim, which was subsequently upheld by the Commissioner of Income Tax (Appeals) [CIT(A)]. 2. Definition and Distinction Between a Contractor and a Developer: The AO and CIT(A) contended that the assessee was merely a contractor and not a developer, as it did not own the infrastructure facilities. The CIT(A) referenced the decision in the B.T. Patil & Sons case, which differentiated between a developer (who designs and conceives projects) and a contractor (who executes projects). The CIT(A) concluded that the assessee was only executing the project and thus was a contractor, not entitled to the deduction under Section 80IA(4). 3. Applicability of the Explanation Inserted by the Finance Act, 2009: The CIT(A) noted that an Explanation was inserted at the end of Section 80IA by the Finance Act, 2009, with retrospective effect from 1.4.2000. This Explanation stated that the deduction under Section 80IA would not apply to a person executing a works contract. The CIT(A) held that this Explanation applied to the assessee, thereby disqualifying it from claiming the deduction. 4. Ownership of Infrastructure Facilities: The CIT(A) also held that the assessee did not own the infrastructure facilities, which was one of the reasons for disallowing the deduction. The CIT(A) argued that the purpose of granting the benefit under Section 80IA was to encourage private capital in the development of infrastructure, which the assessee did not fulfill. 5. Impact of the B.T. Patil & Sons Case Decision: The CIT(A) relied on the decision in the B.T. Patil & Sons case, which held that the deduction under Section 80IA(4) was not available to contractors. The CIT(A) distinguished this case from the earlier favorable decisions for the assessee by noting that the larger bench in B.T. Patil & Sons had reversed the decision in Patel Engineering, which had previously allowed such deductions. Tribunal's Analysis and Decision: The Tribunal considered the arguments presented by both parties. The assessee's counsel argued that the Tribunal had allowed the deduction in the assessee's own case for subsequent years (AY 2005-06 to AY 2009-10). The Tribunal noted that the Coordinate Bench had already addressed similar objections raised by the Revenue in those years and had allowed the deduction. Key Findings by the Tribunal: (a) Contractor vs. Developer: The Tribunal referred to the case of En-vision Enviro Engineers Pvt. Ltd., where it was held that being termed as a "contractor" in an agreement does not alter the nature of the work executed. The Tribunal held that the assessee had acted as a developer, not merely a contractor. (b) Explanation by Finance Act, 2009: The Tribunal found that the Explanation inserted by the Finance Act, 2009, did not apply to the assessee because the project assigned by Surat Municipal Corporation was not merely a works contract but involved development and operation of infrastructure. (c) Ownership of Infrastructure Facilities: The Tribunal clarified that Section 80IA(4) requires the enterprise to be owned by a company, not the infrastructure facility itself. The infrastructure facility typically belongs to the government, and the private entity develops and operates it. (d) B.T. Patil & Sons Case: The Tribunal noted that the decision in B.T. Patil & Sons was no longer considered good law following the decision of the Hon’ble Bombay High Court in ABG Heavy Industries Ltd., which allowed the deduction under similar circumstances. (e) Precedent and Consistency: The Tribunal emphasized that in the assessee's own case for AYs 2003-04 and 2004-05, the Coordinate Bench had granted the deduction. Thus, for consistency, the deduction should be allowed for the current assessment year as well. Conclusion: The Tribunal set aside the findings of the CIT(A) and directed the AO to allow the assessee the deduction of ?8,52,50,413/- under Section 80IA(4) of the Act. The appeal filed by the assessee was allowed. Order Pronounced: The order was pronounced in the Court on 16th November 2016 at Ahmedabad.
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