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TMI Blog2015 (12) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the assessee for both the assessment years, however, they all relate to the order of the CIT(A) in upholding the denial of deduction u/s.80IA(4) of Rs. 84,02,555/- for Assessment Year 2004-05 and Rs. 1,46,85,364/- for Assessment Year 2005-06 respectively. 3. Facts of the case, in brief, are that the assessee filed the return of income on 01-11-2004 declaring total income of Rs. 28,80,290/- after claiming deduction of Rs. 84,02,555/- u/s. 80IA(4). The AO, for the reasons recorded at para 4.1 to 4.13 of the order passed u/s.143(3) on 22-12-2006, disallowed the claim of deduction u/s.80IA(4). In appeal the Ld.CIT(A) following the order for A.Y. 2003-04 in case of the assessee upheld the action of the AO. The Tribunal vide ITA No.968/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee's Appeal followed its order for assessment year 200304 while denying the deduction claimed under section 80IA(4) of the Income Tax Act. The order of the Tribunal for the assessment year 200304 has been set aside by this Court in Appeal filed by the Appellant being I.T. Appeal No.4610 of 2010 on 30th August, 2011 and restored to the Tribunal for a fresh decision. 3. Fro the reasons mentioned in the order dated 30th August 2011, we set aside the impugned order relating to assessment year 200506 and restore the matter to the file of the Tribunal, for fresh decision in accordance with law. 4. All the contentions of the parties are kept open to be urged before the Tribunal. 5. The appeal is accordingly disposed of with no order as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat an identical issue has been decided in favour of the assessee by Hon'ble Bombay High Court in the case of CIT vs. ABG Heavy Industries Ltd & Ors (supra). Relevant Para Nos. 22 & 23 of the said decision of Hon'ble High Court is being reproduced here under for a ready reference. 22. Another submission which was urged on behalf of the Revenue is that under cl. (iii) of subsec. (4A) of sec. 80IA, one of the conditions imposed was that the enterprise must start operating and maintaining the infrastructure facility on or after 1st April, 1995. The same requirement is embodies in subcl. (c) of subsec. (4) of the amended provisions of sec. 80IA. On this basis, it was urged that since the assessee was not operating and maintaining the facility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the provisions are harmoniously construed, the object and intent underlying the amendment of the provision by the Finance Act of 2001 would be defeated. A harmonious reading of the provision in its entirety would lead to the conclusion that the deduction is available to an enterprise which (i) develops; or (ii) operates and maintains; or (iii) develops, maintains and operates that infrastructure facility should be after 1st April, 1995. In the present case, the assessee clearly fulfilled this condition. 23. In view of which we have taken, all the assessment years in question to which this batch of appeals relates would be governed by the same principle. The subsequent amendment of sec. 80IA( 4A) of the Act to clarify that the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intain; or develops, maintains and operates an infrastructural facility. In other words a developer who only develops (i.e., constructs) an infrastructural facility is not envisaged to operate and maintain such facility, cannot be accepted to fulfil the condition in clause (c) of sec. 80IA( 4) since it would be an impossibility. Therefore, in view of the construction placed by the Hon'ble Bombay High Court on the requirements of clause (c) of sec. 80IA( 4)(i) requiring it to be harmoniously read with the main sec. 80IA( 4), we do not find substance in the objection raised by the Revenue. We thus respectfully following the decision of the Hon'ble Bombay High Court on the issue in the case of CIT vs. ABG Heavy Industries Ltd & Ors (supra) dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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