2012 (10) TMI 1255 - AT - Income Tax

Summary

Issues Involved:
1. Disallowance of deduction u/s 80IA for profits derived from developing a new infrastructure facility.

Summary:

Issue 1: Disallowance of Deduction u/s 80IA

The assessee appealed against the CIT(A)-IV, Hyderabad's order dated 15.6.2009, which confirmed the disallowance of deduction u/s 80IA for profits derived from developing a new infrastructure facility. The learned AR referenced a similar issue in the assessee's own case (ITA No. 1292/Hyd/2010) where the Tribunal had previously ruled in favor of the assessee.

The learned DR suggested remanding the issue to the Assessing Officer (AO) for fresh examination to verify if the assessee met the conditions u/s 80IA read with the Explanation below section 80IA(13). The Tribunal reviewed the material and noted that the same issue had been considered in the assessee's own case and other similar cases, such as M/s. Koya & Co. Construction (P) Ltd. v. ACIT, GVPR Engineers Ltd. v. ACIT, KMC Construction Ltd. v. ACIT, and Sushee Hi-Tech Constructions Pvt. Ltd. vs. DCIT.

The Tribunal reiterated that for eligibility u/s 80IA, the enterprise must be involved in developing, operating, and maintaining infrastructure facilities. The Tribunal emphasized that the nature of the work undertaken by the assessee should be analyzed to determine if it qualifies as development rather than a mere works contract. The Tribunal cited previous rulings where it was held that developers undertaking entrepreneurial and investment risks are eligible for deduction u/s 80IA, whereas contractors undertaking only business risks are not.

The Tribunal directed the AO to examine the records and determine if the contracts involved design, development, operation, maintenance, financial involvement, and defect correction. If these conditions are met, the contracts should be considered as development of infrastructure facilities, making the assessee eligible for deduction u/s 80IA. The AO was instructed to compute the profit from such contracts on a pro-rata basis of turnover and grant the deduction accordingly.

In conclusion, the Tribunal remitted the issue back to the AO for fresh consideration and directed the AO to verify if the assessee carried on the development of infrastructure facilities along with the specified activities. The appeal was allowed for statistical purposes.

Order pronounced in the open court on 31st October, 2012.