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TMI Blog2017 (8) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... on stream and that the agreement should be entered into thereafter. Further, this argument of the revenue would also militate against sub-section 2 which provides that the assessee would be entitled to the benefit of deduction from the year in which the undertaking or enterprise develops or begins to operate any infrastructure facility. Necessarily, therefore, the agreement and the installation of the equipments for the operation of the airport should precede the commencement of operation of the infrastructure facility to avail the benefit of deduction. The statutory provision and the agreement being as above, we cannot uphold the conclusion of the Tribunal that both the agreements could not constitute agreements specified in clause-(b. Accordingly, the findings of the Tribunal with reference to clause-(b) of sub-section (4) of Section 80-IA are set aside. The matter will stand remitted to the Assessing Officer for fresh examination - Decided in favour of assessee. - I.T.A. Nos. 163, 169 And 176 of 2012 - - - Dated:- 7-8-2017 - MR. ANTONY DOMINIC AND MR. DAMA SESHADRI NAIDU, JJ. For The Appellant : Sri.M.Pathrose Matthai (Sr.), Sri.Saji Varghese, Smt. Mariam Mathai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the impugned common order, the Tribunal held that the agreements entered into between the assessee and the Airport Authority of India did not constitute agreements specified in clause (b) of sub-section (4) of Section 80-IA of the IT Act. Similarly, with respect to clause (c) of Section 80-IA(4) of the IT Act, the Tribunal took the view that the basic particulars are not borne out of the assessment order, nor was there any occasion for the assessing officer to verify those vital details. On that basis, the Tribunal set aside the order of the Commissioner and restored the matter to the file of the assessing officer for fresh examination of that issue. It is aggrieved by these orders, the assessee is in appeal before us. 4. We heard the learned Senior Counsel for the assessee and the learned Senior Counsel for the Revenue. 5. According to the learned Senior Counsel, the Memorandum of Understanding entered into between the assessee and the Airport Authority of India and the subsequent agreement between the parties, copies of which are Annexures C and K respectively in I.T.A No.163/2012, would show that the assessee had entered into an agreement as contemplated in clause (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (b), the second condition that is required to be satisfied is that the infrastructure facility should have entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (1) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility. The third condition specified in clause (c) is that the assessee should have started or starts operating and maintaining the infrastructure facility on or after 1st April, 1995. The explanation to sub-section (4) which enumerates the infrastructure facilities for the purposes of the provision includes an airport also. The aforesaid statutory provisions, therefore, would show that an airport is an infrastructure facility as contemplated in sub-section 2 of Section 80-IA of the IT Act entitled to the benefit of deduction as provided in sub-section (1), provided it satisfied the conditions specified in clauses (a), (b) and (c) of subsection 4 thereof. 8. Turning to the case on hand, the fact that the airport is owned by a company registered in India as provided in clause (a) of sub- Section 4 is not disputed by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol service and airport control service. 10. From the above, it is evident that in view of the provisions contained in the Airports Authority of India Act, 1994, providing of air traffic service and air transport service at any airport and civil enclaves in India is the duty of the Airport Authority of India, a statutory body established under Airport Authority of India Act, 1994. It shall also be the function of the Authority to manage the airports and the Aeronautical Communication Stations efficiently. It was in view of these statutory obligations of the Airport Authority of India, the sole repository of these duties in the country, that the assessee had entered into Memorandum of Understanding dated 07.06.1999 with the Authority, a copy of which is produced as Annexure C. The obligations that are undertaken by the Airport Authority of India are: 1. AAI would provide CNS equipment, install, test, flight calliberate and commission for operational use as required for facilitating safe aircraft operation at the airport. 2. The cost of the CNS equipment so provided by AAI including all pre-operative expenditure incurred towards installation, testing, flight calliberation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -ordinate those flights with Cochin International Airport to enable CIAL to calibrate the CIAL Equipment at the same time. For the avoidance of doubt, AAI shall not be liable for the cost incurred by CIAL to calibrate the CIAL Equipment. iii. Where appropriate, assist DGCA in the performance of any checks and procedures, which are required to be performed for the optimum use of airport. iv. Prepare all such procedures, manuals and charts related to the AAI Services as are necessary in order to ensure the safe operation of aircraft at the Airport and in the airspace in the vicinity of the Airport. v. Mutually agree with CIAL the Operating Reporting Procedure and the Incident Reporting Procedure. vi. Provide CIAL and other agencies with such assistance as may be reasonably required during any trial operations at the Airport. 2.3 AAI shall, during performance of the AAI operating phase and future Commissioning phase provide such reasonable assistance as may be necessary to the Contractors to ensure that the AAI Equipment is adequately integrated with the CIAL Equipment. 2.4 Following performance of the AAI Services in accordance with Clause-2 and prior to the end of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.6.1 If AAI requires, it may at its own cost, subject to receiving the prior consent of CIAL, which will not be unreasonably withheld, situate at the Airport or on the Site any radars, equipment, buildings, works or facilities necessary for the provision of enroute air navigation services. In situating such radars, equipment, buildings, work or other facilities at the Airport, AAI shall take appropriate measures to avoid any disruption to the normal operation of the Airport. 2.7. Calibration of Equipments and Self-Insepction of Equipments and Facilities. 2.7.1 AAI has to conduct calibration of equipments as per the requirements. 2.7.2 Periodical Self-Inspection of equipments and facilities is to be carried out by AAI at required intervals. 12. From the provisions of Annexure-C and Annexure-K, which contain the obligations of the Airports Authority of India, it is clear that the Airport Authority of India was only undertaking to discharge its functions as provided under Section 12 of the Airports Authority of India Act, 1994 for the operation and maintenance of the airport which was developed by the Cochin International Airport Limited. Such an agreement betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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