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TMI Blog2017 (5) TMI 1498X X X X Extracts X X X X X X X X Extracts X X X X ..... er handling equipment on lease for a period of ten years for loading and unloading of containers at the port and that the cranes that were to be supplied by the assessee formed an integral part of the port. The condition of a certificate from the port authority was fulfilled and JNPT certified that the facility provided by the assessee was an integral part of the port. The findings that the assessee had developed the infrastructure facility and that it was engaged in operating the cranes was, therefore, based on the material on record. The fact that the assessee was also maintaining the cranes was not disputed. The assessee was entitled to the special deduction under section 80IA. - D.B. Income Tax Appeal No. 631/2008 Connected with D.B. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once it is undisputedly engaged in developing the infrastructure facility, particularly when mere developing , without operating or maintaining the infrastructure facility, is also covered withing the qualifying criteria under the said provision of the Act? Appeal No. 23/2014 Whether a works contractor cannot be a developer within the meaning of Section 80IA(4) of the Act and thus even when the appellant was treated as a works contractor , whether it can be disqualified form claiming the deduction u/s.80IA(4) of the Act once it is undisputedly engaged in developing the infrastructure facility, particularly when mere developing , without operating or maintaining the infrastructure facility, is also covered within the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'development' has not been artificially defined for the purposes of Section 80IA of the Act and must, therefore, receive its ordinary and natural meaning. Under the terms of the contract between the assessee and JNPT, the assessee undertook an obligation for supplying, installing, testing, commissioning and maintenance of Container Handling equipment namely, the cranes in question. JNPT has a dedicated Container Handling Terminal. The case of the assessee is that the only activity at the Terminal consists of the loading, unloading and storage of containers. Under the contract, the assessee was obligated to provide the equipment in question in an operable condition. The contract envisaged two different options; the first being one u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure facility. The obligations, which the assessee assumed under the terms of the contract were not merely for supply and installation of the cranes, but involved a continuous obligation right from the supply of the cranes to the installation, testing, commissioning, operation and maintenance of the cranes for a term of ten years after which the cranes were to vest in JNPT free of cost. An assessee did not have to develop the entire port in order to qualify for a deduction under Section 80IA. Parliament did not legislate a condition impossible of compliance. A port is defined to be an infrastructure facility and the circular of the Board clarified that a structure for loading, unloading, storage etc., at a port would qualify for deduction un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat at the material time for the assessment years 1997-98 and 1998-99, it was necessary for the assessee to cumulatively fulfil the requirement of developing, operating and maintaining the infrastructure facility. It was urged that the assessee, even if it be held to have developed the facility, cannot be regarded as operating the facility. For the reasons already indicated, it is not possible to accept the submission. As we have already noted the assessee had as a matter of fact developed the facility. The Tribunal has also arrived at a finding of fact that the assessee was under the contract required to operate the facility. Merely because the operators of the cranes were provided by the Port Authority did not absolve the assessee of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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