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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 ..... has challenged the judgment of the Tribunal whereby the Tribunal has dismissed the appeal of the Department and in appeal no.223/2011 appeal of the department was allowed, in appeal no.23/2014 the appeal of the assessee was dismissed and in appeal no.123/2015 the appeal of the assessee was dismissed. 3. While admitting the appeals, this Court framed the following substantial question of law in each appeal:- Appeal No. 631/2008 "Whether the Tribunal was justified in upholding the order of CIT(A) and thus, entitling the assessee for deduction U/S 801A of the Act of Rs. 1,31,47,158/- inspite of the fact that assessee does not fulfill the conditions specified u/s 801A(4) of the Act and is simply a civil contractor?" Appeal No. 223/2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated as a 'works contractor' and not a 'developer' even when the provision provides that a person is entitled to deduction even if he is solely engaged in developing the facility without operating or maintaining it?" 4. Heard learned counsel for the parties. D.B. Income Tax Appeal No. 631/2008 5. As stated by counsel for the respondent, now the issue is squarely covered by the decision in Commissioner of Income Tax vs. ABG Heavy Industries Ltd. & ors reported in (2010) 322 ITR 0323 wherein it has been held as under:- 16. Now, it is in the background of the evolution of the law that the controversy in the present case would have to be considered. The contention of the revenue is that the assessee was not engaged in developing the faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two options that had been given to the assessee consisted of a payment of Rs. 40,00,000 which was to be retained by JNPT in the event that the operators were provided by the Port for operating the cranes. At the same time, JNPT clarified that it was the responsibility of the assessee to guarantee the availability of the equipment; to ensure that the equipment is in operation on a round the clock basis; to provide for repairs and to ensure the operation and availability of the equipment in accordance with the terms of the contract. 17. The obligations which have been assumed by the assessee under the terms of the contract are obligations involving the development of an infrastructure facility. Section 80IA of the Act essentially conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quipment which was supplied was fully operational. The assessee had in its employment diverse employees, including a Senior Manager, a Manager, Assistant Manager and five Deputy Managers (Operations) in addition to Assistant Engineers, Technical Officers and Operators-cum- Technicians. On considering the material on record including letters of the Port Authority, the Tribunal came to the conclusion that as a matter of fact the assessee was also engaged in activities of operating the equipment. The finding that the assessee had developed the infrastructure facility and that it was engaged in operating the cranes is, therefore, based on the material on record. The fact that the assessee was also maintaining the cranes is not disputed. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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