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TMI Blog2018 (12) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... n after sub clause (13) of section 80IA was to deny, the benefit of deduction u/s. 80IA(4) in respect of works contract, but to provide the deduction to such undertakings, which is doing the business of building, operating and Transfer (BOT) and building owning, operating and transfer BOOT as also PPP contracts does not hold water in so far as an irrigation project can never function under BOT or BOOT or PPP . In the circumstances, we are of the view that the assessee’s claim is not hit by the substituted Explanation as provided after sub clause(13) of section 80IA.. The issue raised that assessee is not doing the development work but is only doing the contract also does not stand to test as the assessee admittedly is developing the road ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned orders of the CIT-A by the revenue in deleting the addition made on account of claim of deduction u/s. 80IA of the Act is covered in favour of assessee and against the revenue by the order dt. 18-06-2013 of the Co-ordinate Bench, ITAT B Bench, Kolkata in ITA Nos. 1684 1685/Kol/2011 for the A.Y 2007-08 in assessee s own case, copy of this order is on record and referred to para 13 of the said order. 5. On the other hand, the ld. DR relied on the orders of the AO in making such addition. 6. Heard the rival parties and perused the record. On perusal of record, we find that the assessee is engaged in civil construction and claimed deduction of ₹ 3,93,55,077/- u/s. 80IA of the Act in the return of income. The AO denied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 with retrospective effect from 1-4-2-2000. This Explanation is found after sub-section (13) of section 80IA. The said Explanation attempts to control the provisions of sub-section 4. More so, it says that nothing contained in section 80IA would apply in relation to the business referred to sub-section (4), which is in the nature of works contract. A works contract is not defined in section 80IA. Now, what would come into consideration is whether the substituted Explanation after sub- clause (13) changed the nature of the meaning of infrastructure facility provided in the Explanation to section 80IA(4). Admittedly, the Explanation to section 80IA(4) gives the meaning the term infrastructure facility . The substituted explanation after s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s doing the work contract as provided in the substituted Explanation in section 80IA after sub clause (13)?, The answer would be emphatic no. 12. This is because the assessee is doing the activity of development of an infrastructure facility as provided under section 80IA(4). The project is a Turnkey project and it cannot form nor have a character of a works contract. Works contract would be applicable to the repairs and maintenance of an existing project. Works contract cannot be in relation to the development of a new project. One of the arguments raised by the learned Sr.DR that the intention of the substitution of the Explanation after sub clause (13) of section 80IA was to deny, the benefit of deduction u/s. 80IA(4) in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 801A(4) of the Act after the substitution of the explanation to section 8OIA of the Act was introduced was only for the purpose of giving the benefit to BUT contracts then, the explanation to section 801A(4) of the Act becomes otiose. This is as explanation to section 801A(4) of the Act specifically provides for the road to include a toll road, a bridge or a rail system. BUT contract in respect of the railway system can never exist. Further, a perusal of the provisions of section 801A of the Act shows that the term works contract is not defined in the said section. However, the terms works and contract is defined in the provisions of section 194C of the Act. If a particular word or term is not defined in the specific sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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