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TMI Blog2008 (4) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... ial bench in this case which was communicated vide Head Office U.O.No.F.12-Jd(AT)/2007 dt.3-4-2007. The following question was referred to the Special Bench: Whether on the fact and in the circumstances of the case, the learned CIT (A) was justified in holding that the assessee is a Civil Contractor and not a Developer of an Infrastructure facility inasmuch as the assessee has failed to show even a single instance where it operates any of infrastructural facility, therefore, the assessee is not entitled to deduction u/s 80IA of the I.T.Act, 1961 . Besides the above issue, the Special Bench was also directed to dispose of the entire appeal. 2. The assessee is aggrieved on two issues in this appeal. The first issue relates to the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional evidence sought to be admitted were the audit reports in form No.10 C C B in respect of 22 infrastructure projects as required u/s 80IA(7) of the Act. The reasons for his refusal to admit additional evidence can be summarized as follows: a) The first objection of the CIT (A) is that these audit reports should have been filed before the Assessing Officer before any such claim was to be allowed. b) Since the deduction is available for any ten consecutive years within a period of 15 years beginning from the year in which the infrastructure facility is developed or begins to operate, it means that the Assessing Officer has to be given a notice that from a particular assessment year onwards, the assessee will be availing the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril, 1995, because it never developed any infrastructural facility all that it did was to construct a part of civil work, which belonged to one or other Government Authority. The question of starting or operating will arise much later. (iv) The appellant did not undertake to construct and then transfer the asset to State Authority. The ownership of the infrastructural facility after development and operation, at some stage, has to change hands from the private developer to a public State Authority. This crucial test fails in all the 22 cases claimed by the appellant as infrastructural facilities. (v) The window of opportunity of 15 years during which deduction can be claimed for a consecutive period of ten years opens only with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of filing such form. Not only that, even if the claim had been made, the law did not mandate the assessee to file such a form. Coming to the second objection of the CIT (A) that unless form 10 CCB was filed, the Assessing Officer would not get notice about the ten-year period selected by the assessee for deduction, it was submitted that if the assessee did not claim deduction in the first ten years out of the 15 year period, it did not mean that the assessee could not claim the deduction in the remaining 5 years. According to him, it was like saying that if a person has missed the bus, he cannot stand in the queue. Thus, the argument was that the admission of additional ground for deduction got frustrated by not admitting the additional e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction. So, according to Mr.Dastur, this was the first issue to be dealt with as to whether only a development agreement was sufficient for deduction or not. The CIT (A) had also opined that the facility has ultimately to be transferred to the Government and a person having ownership only could transfer it to the Government. In the instant case, he found that the assessee was not the owner of the facility and hence could not have transferred it to the Government. This, according to Mr. Dastur is the second issue to be dealt with. The third issue is whether who can be called a developer? To answer this question, one needs to understand what is meant by development and what aspects does the term cover. The CIT (A) has opined that a person wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the light of the facts and circumstances of the case. No doubt, the Special Bench has been given the power to modify or reframe the question. But the said modification or reframing of the question cannot change the basic structure of the question and that is, that the question has to be answered in the light of the facts and the circumstances of the case, which is not possible as discussed earlier, on account of the voluminous additional evidence filed in this case. In the process, it will also be violating the mandate given to the Special Bench to dispose of the entire appeal. Thus, on the overall consideration of the circumstances we are put into, we feel that in the light of the voluminous additional evidence filed by the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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