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TMI Blog2017 (6) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A)-1, Hyderabad, dated 31.12.2015 and 28.07.2016 respectively confirming the orders of the AO in relation to assessment years 2010-2011 and 2012-2013. 2. First I take up ITA No.448/Hyd/2016 for the assessment year 2010-2011 for brevity. Brief facts of the facts are that the assessee is a Private Limited incorporated under the companies act,1956 and is carrying on the business of Handling and Treatment and disposal of the Bio-Medical Waste (Hazardous Waste). The Assessee had filed its return of income for the Asst. Year 2010-11, through electronic filing on 13.10.2010 declaring a total income of ₹ 198,20,703/- before claiming deduction u/s 80-IA of the Income Tax Act, 1961 (in short ''the Act'') and NIL income after claiming deduction u/s 80-lA Act under normal provisions and MAT income of ₹ 1,84,42,117/-, and the return was processed u/s 143(1) of Income Tax Act, 1961. The assessee's case was selected for scrutiny under CASS, and notice u/s 143(2) of the Act was issued and served on the assesse by the then the assessing officer as there was a change in incumbent officer and he had issued notice u/s 143(2) of the Act. Subsequently the Assessing Officer passed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... district, Tamil Nadu, Edupa//y Village, Mahaboobnagar district, Andhra Pradesh, and Manthuruthy, Kanjikode, Pallakad district, Kera/a. During the course of assessment proceedings, the deduction claimed by the assessee-company u/s.80 lA of 1. T. Act, has been verified. Vide order sheet noting dated 11.12.2012 the, assessee company was asked to produce copies of agreement entered into with Central/State Government or a local authority or any other statutory body for developing, maintaining and operating a new infrastructure facility for allowing the claim of deduction u/s.80IA of the Act. In response, the assessee company filed copies of approvals issued by the Pollution Control Board of Andhra Pradesh, Tamilnadu and Kerala Governnment(s). On perusal of the same, it is observed that with regard to Tamilnadu and Andhra Pradesh site(s), the, company has been accorded approval by the Tamilnadu/ Andhra Pradesh Pollution Control Board to operate a facility for collection, reception, storage, transport and disposal of biomedical waste. With - regard to the Kerala site, the assessee company has filed an approval issued by the Pollution Control Board of Kerala, which is not in the name of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in respect of an undertaking which is formed as a result of the re-establishment, reconstruction or revival by the assessee of the business of any such undertaking as is referred to in section 33B, in the circumstances and within the period specified in that section. It is not formed by the transfer to a new business of machinery or plant previously used for any purpose; Under section 80- lA of the Income Tax act,1961, sub-section (4) applies to any enterprises carrying on the business [of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining] any infrastructure facility which fulfils all the following conditions, namely: a). it is owned by a company registered in India or by a consortium of such companies [or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act b). it has entered Into an agreement with the central government or a state government or a local authority or any other statutory body for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility; c). it has started or starts operating and maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o those enterprise which were carrying on the business of developing, maintaining and operating any infrastructure facility. Therefore, in all practical purpose, the contract was awarded to the assessee through IMAGE. As per the provisions of section 80- IA( 4), the benefit of deduction under this section is to be given only to the enterprise which carried on the classified business. Therefore, in the light of this legal proposition. The ld. Counsel for assessee argued that the assessee is entitled for the deductions u/s 80-IA(4) on the profit earned from the execution of the work and that on the facts and Circumstances of the case ,the learned assessing officer was not justified in disallowing the deduction u/s 80- lA of the Income Tax Act 1961,for the Kerala Palkkad Unit. The ld. Counsel pleaded that the Assessing Officer ignored the explanation of the appellant and passed the order without any basis by disallowing the deduction. 7. The ld. Commissioner of Income Tax (Appeals) on perusal of the observations of the ld. Assessing Officer and contention of ld. Authorised Representative stated that assessee has not fulfilled the conditions laid down for claiming deduction u/s.80IA(4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control board but the actual work was executed by assessee and therefore the assessee company automatically becomes eligible for claiming deduction under section 80 IA. The Commissioner of Income Tax (Appeals) failed to appreciate the fact that the IMAGE did not claim any deduction under section 80IA. The Commissioner of Income Tax (Appeals) has not considered the submission made by the assessee with respect to Palakkad Kerala unit and mechanically denied deduction under section 801A. Ld. Counsel for the assessee filed a paper book before me, and contended that the additional evidence filed in the paper book could explain the assessee's case and thus eligible for deduction u/s. 80-IA of the Act. Papers 1 to 62 of the paper book contain the following the documents are illustrated hereunder:- Sl.No Particulars Page No's 1 Copy of Consent to operate, issued by Kerala State Pollution Control Board on 10/03/2016 under File No.PCB/HO/PLKD/ICO/62/08 to IMAGE 1-6 2 Copy of Authorisation issued by Kerala State Pollution Control Board under File No.PCB/HO/PLKD/15396/2009 to IMAGE 7-14 3 Copy of Agreement between The Indian Medical Association (IMA) and G.] Multiclave (India) Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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