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TMI Blog2014 (1) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... to the order of ld. CIT. According to the ld. AR the said Shri Deepak Acharya had approached him in connection with some other tax matters whereupon he incidentally mentioned the order under section 263 of the Act. Ld. AR submitted that advice for filing the appeal was given to him and accordingly the appeal has been filed. As per ld. AR the delay was solely due to the mistaken belief held by Shri Deepak Acharya that there was no requirement of filing an appeal on an order passed under section 263 of the Act. Relying on the decisions of the Hon'ble Apex Court in the case of Motilal Padampat Sugar Mills Co. Ltd. -vs.- State of Uttar Pradesh [118 ITR 326] and Collector, Land Acquisition -vs.- Mst. Katiji [167 ITR 471] ld. AR argued that the del ay which was not on account of any negligence on the part of the assessee had to be condoned. According to him considerable injustice would be caused if the delay was not condoned. Ld. AR pointed out that assessee by virtue of indulging in any delaying tactics, did not claim any advantage whatsoever. 4. Strongly opposing the condonation petition, ld. DR submitted that whether Shri Deepak Acharya was authorized to take decisions regarding app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atment Pl ants. Assessing Officer had adjudicated on such claim after verifying the details and after considering the Explanation to Section 80IA of the Act introduced by Finance Act, 2007 with retrospective effect from 1 s t April, 2000. Thereafter he had come to a conclusion that for two of the eight projects on which such claim was preferred by the assessee, a deduction could not be given. The claim for deduction was scaled down by Rs.1,84,03,187/- in respect of these projects. As per ld AR, the revision attempted under section 263 of the Act, was only for a reason that Explanation to section 80IA of the Act was substituted by Finance (No. 2) Act, 2009 with retrospective effect from 01.04.2000 and when the Assessing Officer had passed the assessment order, the said substituted Explanation was not available to him. A s per ld. AR, in view of the decision of Hon'ble Apex Court in the case of CIT -vs.- Max India Ltd. [295 ITR 282], a lawful view taken by the Assessing Officer could not be substituted by the CIT with another view. According to him, when the Assessing Officer passed the assessment order he had considered the law as it stood at that point of time. Even if the substitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.12.2008, passed under section 143(3) of the Act, is reproduced hereunder :- "Claim of deduction u/s. 80IA of the Act : The assessee company had shown to have derived income from following eight projects against which the assessee company had claimed deductions u/s. 80IA of the Act : (i) Project of road over bridge for South Eastern Railway at Bankura, (ii) Project of road over bridge for Gamuda (Saktigarh); (iii) Project of road over bridge for Konkan Railway Parasnath; (iv) Project for filing and substructure works of Metro Railway, Dum Dum, Kolkata, (v) Project of road over bridge for Indian Railway Corporation, IRCON, Patna, (vi) Project of road over bridge for East Central Railway, Kodarma, Jharkhand, (vii) Project for water treatment plant, Imphal, (viii) Project for road over bridge for Indian Railway Corporation. On perusal of the details produced in respect of the above projects, it is detected that subsequent to the insertion of "Explanation" by the Finance Act, 2007, with retrospective effect from 1.4.2000, which specifies the non-applicability of sec. 80IA for the persons who executes a works contract with any undertaking or enterprises. According to the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. Each of the work undertaken has to be analyzed and a conclusion has to be drawn about the nature of the work undertaken by the assessee. The agreement entered into with the Government or the Government body may be a mere work s contractor for development of infrastructure. It is to be seen from the agreements entered into by the assessee with the Government. The Government handed over the possession of the premises of projects to the assessee for the development of infrastructure facility. It is the assessee's responsibility to do all acts till the possession of property is handed over to the Government. The first phase is to take over the existing premises of the projects and thereafter developing the same into infrastructure facility. Secondly, the assessee shall facilitate the proper to use the available existing facility even while the process of development is in progress. Any loss to the public caused in the process would be the responsibility of the assessee. The assessee has to develop the infrastructure facility. In the process, all the works are to be executed by the assessee. It may be laying of a drainage system, may be construction of a project; provision of wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used to denote a person entering into an agreement for undertaking the development of infrastructure facility. Every agreement entered into is a contract. The word 'contractor' is used to denote the person who enters into such contract. Every a person who enters into a contract for development of infrastructure facility is a contractor. Therefore, the contractor and the developer cannot be viewed differently. Every contractor may not a developer but every developer developing infrastructure facility on behalf of the Government is a contractor. Section 80 IA intends to cover the entities carrying out developing, operating and maintaining the infrastructure facility keeping in mind the present business models and intend to grant the incentives to such entities. The CBDT, on several occasions, clarified that pure developer should also be eligible to claim deduction under section 80IA which ultimately culminated into amendment under section 80IA in the Finance Act, 2001, to give effect to the aforesaid circulars issued by the CBDT. To avoid misuse of the aforesaid amendment, an Explanation was inserted in section 80IA, in the Finance Act, 2007 to 2009, to clarify that mere works contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above". The same view was again taken by Hon'ble Hyderabad Bench of this Tribunal in the case of KMC Constructions Ltd. -vs.- A CIT (2012) 51 SOT 214 (Hyd.) (URO). There is no case for the Revenue that the contract works done by the assessee did not involve any design or development or financial involvement or defect correction liabilities. It is therefore not possible for us to say that there was any error in the order of the Assessing Officer wherein he allowed the deduction under section 80IA(4) of the Act after scaling it down substantially. The action taken by the Assessing Officer was a possible lawful view. There being no error in the order of the Assessing Officer, ld. CIT was only endeavouring to substitute his view with the lawful view taken by the Assessing Officer. In any case, Hon'ble Apex Court in the case of Max India Limited (supra) has held that when two views are possible and Assessing Officer has taken one view with which the Commissioner does not agree, it cannot be treated an erroneous order prejudicial to the interest of revenue. We therefore have no hesitation to quash the order under section 263 of the Act passed by the ld. CIT. 9. In the result, appeal fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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