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TMI Blog2022 (3) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... e for A.Y. 2005-06 to 2011-12 and even the ld. D.R conceded on the issue. The term contractor as used in reference to sec. 80IA(4) is a person entering into a contract with a Government entity and doing the work as per the specific directions of the Government entity and the funds etc. are all given by the Government entity and the contractor is supposed to work as per the directions of the Government entity as imbibed in the terms of the contract and nothing more than that, meaning thereby there is no independent application of mind and therefore the contractor is also not supposed to poses expertise in the matters of the project. Everything is guided by the Government entity. Whereas in the case of a developer, he enters into a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly grievance stands for adjudication before us is whether the assessee is eligible for deduction u/s 80IA(4) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) . Both the parties before us, at the very outset conceded that the facts and circumstances and the issues involved in these appeals are absolutely identical and similar and therefore, after hearing the submissions of the parties herein, these appeals are taken up for hearing together and are being disposed of vide this consolidated order. It was also agreed that ITA No. 2518/PUN/2016 for A.Y. 2012-13 may be taken as the lead case. The relevant background in this case is that the assessee is engaged in the business of developing infrastructure work such as water suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010) 37 DTR (Bom) 233. The Misc. Application of the Revenue was also dismissed. This decision has been accepted by the Revenue. Copies of decision of the Tribunal dismissing the Misc. Application and the judgment in the case of ABG Heavy Industries Ltd (supra) were filed before the ld. A.O for this year also. 4. That before the ld. CIT(A), the assessee had argued that this case is covered by the decision of the jurisdictional Tribunal in its own case in earlier assessment year and as there is no change in the facts, the ld. A.O should have allowed the claim following Tribunal‟s decision in the earlier years and more so when all these decisions have been placed before the ld. A.O at the time of assessment proceedings. The ld. CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract entered into with the State Government. The assessee was thereafter required to bring in the finance, technical expertise and material and adhere to the quality requirements irrespective of cost. That, for completion of the project, the assessee had utilised its own funds, expertise, employees and took responsibilities of developing intra-structure facilities. In such circumstances, the Tribunal also in assessee‟s own case (supra) has held that the developer of the infrastructure facilities cannot be denied the benefit of deduction available u/s 80IA(4) of the Act. 5. The ld. CIT(A) has taken cognizance of the aforesaid decisions in assessee‟s own case and at para 10 of his order observes that the allowability of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80IA(4) should not be allowed and that the assessee is not a developer but a contractor . The ld. D.R could not also bring on record any binding decision in favour of Revenue nor could demonstrate that facts were contrary to the facts already existing in respect of the case of the assessee. 8. We have carefully perused the case records, heard the rival contentions and analysed the facts and circumstances in this case. We find, on going through the various decisions in the case of the assessee as well as facts on record, that for these two assessment years, it is not correct interpretation of the provision of sec. 80IA(4) of the Act by the ld. A.O where he has held that the assessee is merely a contractor and not the developer since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into a contract and disposes of the project work by using his own acumen, expertise, employees and even has to adhere to quality standards as enshrined in the contract that he enters into. So for a developer it is a work in a much more broader sense of the term, its independent visualisation along with finance as utilised for completion of the project which is not the case in case of the contractor. That on examination of the facts and circumstances, and the various judicial pronouncements, we are of the considered view that this issue has been consistently held in favour of the assessee. That when the facts and circumstances are identical following the rules of consistency and on the same parity of reasoning, we hold that there is no need ..... X X X X Extracts X X X X X X X X Extracts X X X X
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