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TMI Blog2013 (12) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 80IA(4)(i) - In the interest of the justice – To avail deduction u/s 80IA all the necessary conditions have to be satisfied first – Decided against assessee. - IT Appeal No. 185 (Mds.) of 2012 - - - Dated:- 15-1-2013 - Dr. O.K. Narayanan AND S.S. Godara, JJ. For the Appellant : N. Devanathan. For the Respondent : Dr. S. Moharana. ORDER:- PER : S.S. Godara This assessee's appeal arises from the order of the Commissioner of Income Tax (Appeals) XIII, Chennai dated 28.11.2011 in ITA No. 196/10-11 for the assessment year 2008-09, in proceedings under section 143(3) of the Income Tax Act, 1961 [in short the "Act"]. 2. Brief facts of the case are that the assessee is a partnership firm; engaged in the business of civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owance of assessee's claim of Rs. 1,42,75,227/- under section 80IA and added it in assessee's total income. 5. The assessee carried the matter in appeal. We find from the order passed by the CIT(A) that while upholding the findings of the Assessing Officer, he has considered a catena of case law as well as explanation entrusted in the relevant provisions vide Finance Act, 2009 with retrospective effect from 01.04.2000 and held that the assessee firm is a works contractor only, therefore, not entitled for deduction under section 80IA(4) of the "Act". It is in this backdrop of the facts that the assessee is in appeal before the "Tribunal". 6. The AR representing the assessee has reiterated various pleas raised in the grounds and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive assessment years. (2) .. (2A) (3) .. (4) This section applies to (i) any enterprise carrying on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility which fulfils all the following conditions, namely: (a) it is owned by a company registered in India or by a consortium of such companies or by an authority or a board or a corporation or any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintaining any infrastructure facility and it has to be owned by a consortium of such company or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act. Admittedly, the assessee is a partnership firm. As we notice from the relevant statutory provision, the enterprise in the nature of firm nowhere finds mention in the mandate of the legislature. Although the assessee has emphasized from the definition of the word 'body' in the Law Lexicon which reads as follows: "Statutory definition, includes partnership, Financial Services and Markets Act, 2000 (c.8), S. 367(2) (Stroud, 6th Edn., 2000, Supplement, 2003). It also includes group of bodies, partnership of ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 80IA(4)(i) of the "Act". 9. So far as catena of the judgments submitted by the AR of the assessee, we notice that they only pertain to section 80IA(4)(i)(b) i.e. regarding the issue of contractor viz-a-vis developer. Hence, we do not deem it appropriate to decide on the said issue since the assessee does not fulfill the condition enumerated in the first part of the statutory provision. We make it clear that although the issue adjudicated by us has not been looked into by the Assessing Officer or CIT(A), but in the larger interest of the justice and in view of the fact that before availing deduction under section 80IA, all the necessary conditions have to be satisfied we have proceeded to examine the applicability of the deducti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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