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TMI Blog2011 (9) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/PN/08, 278/PN/10 - - - Dated:- 27-9-2011 - SHRI I C SUDHIR, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER For the Appellant: Shri M K Kulkarni For the Respondent: Shri S K Ambastha ORDER PER G.S. PANNU, AM The captioned appeals relate to same assessee and involve a common issue and, therefore, they were heard together and a consolidated order is being passed for the sake of convenience and brevity. 2. The captioned four appeals arise out of separate orders of the Commissioner of Income-tax (Appeals) Kolhapur which in turn have arisen from the orders of the Assessing Officer passed under section 143(3) of the Incometax Act, 1961 (in short the Act ), pertaining to the assessment years 2003-04 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection raised by the Revenue to the assessee s claim for deduction under section 80IA(4) of the Act has since been settled by the judgment of the Hon ble Bombay High Court in the case of CIT v ABG Heavy Engineering Ltd. reported in 37 DTR 233 (Bom). Primarily, the objection of the Department is that the assessee is not a developer within the meaning of section 80IA, but is merely a contractor employed by the respective Government to work a pre-identified work. On this aspect, the learned Counsel pointed out that the Hon ble Bombay High Court in the case of ABG Heavy Engg. Ltd., (supra) has considered the amendment made to section 80IA(4) with effect from 1.4.2002 and in terms thereof even a contractor employed by the Government or Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a infrastructure facility in terms of section 80IA(4) of the Act. In particular, reference has been invited to para 16.13 of the assessment order for the assessment year 2004-05, which summarizes the stand of the Revenue as under: Coming to the claim of the present assessee, in real terms the assessee is a contractor employed by the respective Government to undertake a pre-identified work. Therefore, if in proper sense of the term, anyone can be said to be developer is the government itself which is developing the asset and had inherent right of operating and maintaining the same. The assessee is only one contractor employed to undertake the construction work and therefore it had no right of the type which a developer normally has. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Central Government or a State Government or a local authority or any other statutory body for (i) developing or 9ii) operating and maintaining or (iii) developing, operating and maintaining new infrastructure facility; (c) It has started or starts operating and maintaining the infrastructure facility on or after the 1st day of April, 1995: Provided that where an infrastructure facility is transferred on or after the 1st day of April, 1999 by an enterprise which developed such infrastructure facility (hereafter referred to in this section as the transferor enterprise) to another enterprise (hereafter in this section referred to as the transferee enterprise) for the purpose of operating and maintaining the infrastructure facil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under clause (iii) of sub-section (4) of section 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 embodied in sub-clause (1)of sub-clause (4) of the amended provisions. It was urged that since the assessee was not operating and maintaining the facility, he did not fulfill the condition. The submission is fallacious both in fact and in law. That the assessee was maintaining the facility is not in dispute. The facility was commenced after 1st April, 1995. Therefore, the requirement was met in fact. Moreover, as a matter of law, what the condition essentially means is that the infrastructure facility should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve already noted that the consistent line of circular of the Board postulated the same position. The amendment made by Parliament to S. 80IA(4) of the Act, set the matter beyond any controversy by stipulating that the three conditions for development, operation and maintenance were not intended to be cumulative in nature. (underlined for emphasis by us) 8. Notably, even in the case before the High Court, the assessee acted as a contractor for Government agency and was held eligible for the purposes of claim of deduction under section 80IA(4) of the Act. As per the legal position opined by the Hon ble High Court, it is evident that an assessee who only develops infrastructure facility (even as a contractor) but does not have an occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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