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TMI Blog2022 (2) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent : Shri D. Anand, Advocate ORDER PER MAHAVIR SINGH, VP: These two appeals by the Revenue in ITA Nos.1985 1986/Chny/2013 for the assessment years 2009-10 2010-11 are arising out of the common order of Commissioner of Income Tax (Appeals)-XII, Chennai in ITA Nos.208 209/2012-13, vide order dated 14.03.2013. The assessments were framed in both the years by the ACIT, Circle XIII, Chennai for the assessment years 2009-10 2010-11 u/s.143(3) of the Income Tax Act, 1961 (hereinafter the Act ) vide orders dated 09.12.2011 29.01.2013 respectively. The appeal by the Revenue in ITA Nos.1737/Chny/2018 is arising out of the order of Commissioner of Income Tax (Appeals)-12, Chennai in ITA No.214/CIT(A)-12/2016- 17 vide order dated 16.03.2018. The assessment was framed by the ACIT, Non-Corporate Circle 10(1), Chennai for the assessment year 2011-12 u/s.143(3) r.w.s. 147 of the Act, vide order dated 31.08.2016. 2. At the outset, it is noticed that the appeals in ITA No.1985 1986/Chny/2013 for assessment years 2009-10 2010-11 are time barred by 136 days. The Revenue has filed condonation petition along with affidavit stating the reason that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d merely executing the job work assigned by the Railway Authorities through contract agreement and hence cannot be construed as developer of infrastructure. 2.3 The learned CIT(A) has failed to consider that Explanation to Section 80IA inserted in Finance Act, 2009 with effect from 1.4.2000 has specifically clarified that sub-section (4) of Section 80IA is not applicable to business in the nature of works contract awarded by any person including Central or State Government. 2.4 The learned CIT(A) ought to have considered the decision of the Hon ble Tribunal, in this case in ITA No.185/Mds/2012 dated 15.01.2013, has decided similar issue in favour of the Department holding that the assessee is a Firm and hence not eligible for claiming deduction u/s 80IA(4)(i)(a) and the section is applicable only for companies registered in India. 2.5 The Id.CIT(A) failed to note that in the above circumstances, the assessee cannot be considered to have satisfied the conditions prescribed in Section 80IA. 5. Brief facts are that the assessee is a contractor for Indian Railways and carried on the work of construction of rail over bridges (ROB), foot over bridges (FOB), construction of ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties and also gone through the findings of the Assessing Officer and CIT(A). The voluminous paper book referred to by the assessee has also been perused. The undisputed facts of the case are that the assessee s claim raised under section 80IA of the Act has been negatived by the Assessing Officer as well as the CIT(A) on the ground that it is a contractor and not a developer. At this stage, we deem it appropriate to reproduce hereunder section 80IA of the Act providing deduction in respect of profits and gains from industrial undertaking or enterprises engaged in infrastructure development which reads as follows:- 80IA. (1)Where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section (4) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive assessment years. (2) .. (2A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this section shall apply in relation to a business referred to in sub-section (4) which is in the nature of a works contract awarded by any person (including the Central or State Government) and executed by the undertaking or enterprise referred to in sub-section (1). *It introduced by Finance (No.2) Act, 2009 w.r.e.f. 1.4.2000 A perusal of the statutory provisions makes it clear that it does not provide a blanket deduction i.e. in order to succeed in a claim of deduction; the concerned assessee has to derive profits and gains from any business referred to in sub-section 4. Further, sub-section 4 prescribes applicability of clause i.e. the case in which the deduction provision would apply. It is in this sub-section that the legislature has enumerated the nature of the undertakings, their activities in contributing raising of infrastructure. Further, in the explanation attached to the sub-section, the legislature has also entrusted the meaning of the infrastructure facilities. In our opinion, an assessee while claiming deduction has to satisfy all conditions in subsection 4(1)(a) or (b) or (c). It is mandatory for the assessee to first satisfy subsection clause i(a), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned by Partnership Act, cannot be accepted for the reason that under the provisions of Partnership Act a firm is not created i.e. it is not a creation of statute, but it is a body of individual regulated by the statute namely Partnership Act. Hence, we hold that the assessee fails to satisfy the applicability clause of the provision as envisaged under section 80IA(4)(i) of the Act . 9. So far as catena of the judgments submitted by the AR of the assessee, we notice that they only pertain to section 80IA(4)(i)(b) i.e. regarding the issue of contractor viz-a-vis developer. Hence, we do not deem it appropriate to decide on the said issue since the assessee does not fulfill the condition enumerated in the first part of the statutory provision. We make it clear that although the issue adjudicated by us has not been looked into by the Assessing Officer or CIT(A), but in the larger interest of the justice and in view of the fact that before availing deduction under section 80IA, all the necessary conditions have to be satisfied we have proceeded to examine the applicability of the deduction provision contained in section 80IA(4)(i) of the Act . 7. In view of the above case law, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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