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TMI Blog2018 (10) TMI 1510X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted on 05.9.2008 on the following substantial questions of law : "i. Whether, on the facts and circumstances of the case, the Tribunal was right in holding that the activities carried on by the assessee in its project at Abu Dhabi will not come under the definition of 'foreign project' as defined in Section 80HHB of the Income Tax Act, 1961 and consequently the assessee is not entitled to the deduction of the same from its gross total income ? and ii. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that list of items listed by the Commissioner of Income Tax (Appeals) in pages 3.6 (iv) and (v) and pages 5 and 6 of its orders dated 27.3.2006 involve only activities relating to sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see is before us by way of this appeal. 6. The short question, which requires to be considered, is as to how the project executed by the assessee requires to be interpreted for being entitled or otherwise to the benefits under Section 80HHB of the Act. The relevant portions of the said provision read as follows : "Deduction in respect of profits and gains from projects outside India. 80HHB : (1) Where the gross total income of an assessee being an Indian company or a person (other than a company) who is resident in India includes any profits and gains derived from the business of (a) the execution of a foreign project undertaken by the assessee in pursuance of a contract entered into by him, or (b) the execution of any work undertake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amining the contract entered into between the assessee and the company in Abu Dhabi, to whom, the assessee was a sub-contractor, held that the work awarded to the assessee formed part of general refinery shut down, which was purely a repair and maintenance work, that the assessee only contributed as a sub-contractor to the maintenance work and that the maintenance work did not form part of foreign project defined under the Act. The Assessing Officer further held that the assessee had not contributed for construction of any road, building, dam, bridge or other structure nor had performed the work of assembly or installation of any machinery or plant. 8. Before the CIT (A), the assessee contended that this was a project by itself, as it had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he brochures of the assessee company were also produced. Further, the assessee produced the curriculum vitae of the Site Manager, the Field Engineers and the Supervisors to show that all of them had expertise in erection of equipment and that they were not carrying out any maintenance work. 10. The CIT (A) considered the documents produced by the assessee and after taking note of Section 80HHB of the Act, proceeded to analyze the matter, which in our opinion, in a threadbare manner as to the nature of work carried on by the assessee. The CIT (A) had gone through the agreement and the drawings, which were enclosed as annexures and found that the nature of work carried on by the assessee, as a sub-contractor, for the refinery shut down clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 747]. 13. The decision in the case of Dilip Kumar and Company had been relied upon to support the submission that strict interpretation involves plain reading of the Statute and it is a well settled principle that when the words in a Statute are clear, plain and unambiguous and only one meaning can be inferred, the Courts are bound to give effect to the said meaning irrespective of consequences. 14. Therefore, it is the submission of the learned Standing Counsel that the words in the Statute and more particularly the definition of the expression 'foreign project' has to be read in the manner mentioned in the Statute, that strict interpretation should be given and that assembly or installation cannot encompass shut down. He furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restricted to the mere physical activity or putting up the superstructure, machinery or plant, but should be understood to take within its fold all utilization of technical knowledge or rendering of technical services necessary to bring about the construction, assembly and installation. 17. Bearing in mind the above legal principle, if we examine the nature of work done by the assessee in the foreign country, we fully subscribe to the factual finding recorded by the CIT (A) after going through the terms and conditions of the agreement and the drawings, etc. The Tribunal lost sight of the most important factor pointed out by the assessee before the CIT (A) that the term 'shut down' does not denote repairs and maintenance and that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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