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TMI Blog2022 (10) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... sues are involved in all these appeals and hence, they are taken up together and disposed off by this common order for the sake of convenience. 2. The only identical issue to be decided in these appeals is as to whether the ld. CIT(A) was justified in granting deduction u/s.80IA(4) of the Act in respect of eligible projects undertaken by the assessee in the facts and circumstances of the instant case. 3. We have heard rival submissions and perused the materials available on record. We find that assessee is a company engaged in the business of developing projects awarded to it by authorities such as Central Government, State Government, Municipal Corporations, and Corporations by Central or State Governments. The infrastructure projects are in respect of water supply projects / water treatment scheme, construction of roads, flyovers and construction of sewage treatment etc., 3.1. For the A.Y. 2014-15, the assessee filed return of income on 29/11/2014 declaring a total income of Rs.8,92,10,730/- and claimed deduction u/s 80IA(4) of the Act in the sum of Rs.13,81,85,353/- in respect of profits attributable to what was claimed as activity of infrastructure development work. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in the Finance bill 2007 where in the context of sec. 80IA of the Act, it is mentioned that the purpose of tax benefit has all along been for encouraging private sector participation by way of investment in development of infrastructure sector and not for the persons who merely execute the civil construction work or any other works contract. Accordingly, a person who entered a contract with another person being an 'undertaking or enterprise' referred to in sec.80IA of the Act for executing works contract, will not be eligible for the tax benefit u/s 80IA of the Act. The ld. AO has further stated that the assessee in his books of account has reflected the receipts from these contracts as work contract receipts clearly indicating that it merely executed a works contract. The ld. AO was therefore of the view, that the assessee is not a 'developer' of an 'infrastructural facility' as envisaged in sec.80IA of the Act and therefore is not eligible for the deduction. The ld. AO has also mentioned that in the case of the assessee on the issue of claim of deduction u/s 80IA of the Act, the Tribunal has in some years allowed the claim of the assessee (AY.2001-02, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber was of the opinion that the said matter ought to be heard by the Larger Bench of third Member i.e. a bench comprising of three members u/s. 255(4) of the Act. The matter was heard at length by the Larger Bench of the Third Member and they agreed with the Accountant Member. They were of the opinion that the assessee is not entitled to deduction u/s.80IA(4) of the Act. The said matter was referred back to the Division Bench of the Tribunal to give effect in conformity with the opinion of the Third Member as per the provisions of section 255(4) of the Act. 2. The said appeals were pending before the Division Bench of the Tribunal to give effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. However, the matter was dismissed in limine because of non-appearance on behalf of the assessee. The assessee moved a Miscellaneous Application before the Tribunal to recall the said order. While the said Miscellaneous Application was pending before the Tribunal, by way of abundant precaution the assessee filed appeals before the Hon'ble Bombay High Court being appeal number ITXA 1307 of 2011 for A.Y. 2000-01 and 1640 of 2011 for A.Y. 2001-02 raisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. 2. Further, while considering the matter afresh, the Tribunal will take into consideration all decisions including the decision of this court in the matter of CIT v. ABG Heavy Industries Ltd. reported in 322 ITR page 323. All contentions are kept open. 3. The appeal is dismissed of in above terms." 6. The issue before us is whether the Tribunal while complying with the provisions of section 255(4) of the Act can consider the judgment of the Hon'ble High Court in the case of ABG Heavy Industries. In light of the clear directions given by the Hon'ble Bombay High Court in the appeals filed by the assessee for the impugned assessment years inter alia directed the Tribunal to consider the said decision of ABG Heavy Industries and all other decisions, we can consider the said judgments of ABG Heavy Industries and also the other judgments for allowing the deduction u/s. 80IA(4) of the Act while giving effect to the opinion of the Third Member as per the provisions of section 255(4) of the Act. Following the directions of the Hon'ble Bombay High Court being the Jurisdictional High Court, the Tribunal is bound to follow the directions and we do accordingly." 3.7. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITSC vide its order u/s.245D (6B) r.w.s. 245D(4) of the Act dated 02/12/2016 decided the issue of eligibility of claim of deduction u/s.80IA of the Act in favour of the assessee for A.Ys. 2007-08 to 2013-14. It is pertinent to note that in this order of Settlement Commission, two members decided in favour of the assessee and one member decided against the assessee. Hence, by majority view, the issue of claim of deduction u/s.80IA of the Act was ultimately decided in favour of the assessee. 3.9. The list of projects undertaken by the assessee for each of the years are tabulated hereunder:- F.Y. 20132014. F.Y. 2014-2015. F.Y. 20152016. F.Y. 20162017. Sr. No. Name of the Authority Description of the Project Date of Commencement of Contract Facility First F.Y. of claiming deductio n u/s 80IA Amt. of Works executed Amt. of Works executed Amt. of Works executed Amt. of Works executed Project carried out in earlier F.Y. & deduction allowed u/s 80IA (4) F.Y. 1 Engineer-in-Chief, Bangalore Water Supply And Sewerage Board Work of Providing & Laying clear water pipeline from Gandhi Krish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IV- Providing, Lowering, Laying, Jointing of Proposed Pure Water Feeder mains (MBR to Service Reservoirs) 10/Mar/2008 Water Supply 2012-13 80,592,315 47,443,133 16,175,293 10,194,922 80IA allowed in Settelment Commission 2012-13 10 Executive Engineer (PPC), NMC, Nagpur Design & Construction of 03 Nos. of RCC ESR's & 01 No. of GSRs within Nagpur City at Various Places 20/Aug/2015 Water Supply 2015-16 - - 5,855,338 39,046,972 11 Executive Engineer MJP Nagari & Gramin Yojana Ward, Gondia Deori Water Supply Yojana Tal. Devri Dist. Gondia 20/Nov/2013 Water Supply 2014-15 - 26,876,819 35,709,315 35,016,856 12 Executive Engineer, Aurangabad Mahanagar Palika Providing, Lowering, Laying, Jointing and Hydraulic Testing of 1400 mm Diameter Mild Steel Gravity Main from Nakshatra Wadi MBR to Railway Station and Providing, Testing of MS and DI Transmision Mains in theLowering, Laying, Jointing and Hydraulic Corporation area. 27/Feb/2009 Water Supply 2012-13 71,846,407 - - 13,636,316 80IA allowed in Settelment Commission 2012- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gravity Mainto various ESR from MBR under Sujal Nirmal Abhiyan (SNA) Package 1.1 & 1.3 23/Dec/2010 Water Supply 2012-13 8,987,186 1,959,474 - - 80IA allowed in Settelment Commission 2012-13 20 Project Director, JICA ODA Loan Project, PWD Construction of Master Balancing Reservoir at Sirvoi Rock Hill: 20,000 m3. 11/Feb/2012 Water Supply 2012-13 56,588,368 17,692,268 3,405,289 - 80IA allowed in Settelment Commission 2012-13 21 City and Industrial Development Corporation of Maharashtra Limited Operation and Maintenance of 150 MLD Capacity Water Treatment Plant and Raw Water pumping plant at Jite. 1/Nov/2010 Water Supply and Mainten ance 2012-13 6,585,211 3,694,086 3,413,084 1,268,868 80IA allowed in Settelment Commission 2012-13 22 The Chief Muncipal officer, Hoshangabad Muncipal Council, Hoshangabad, Madhya Pradesh Survey, Design, Construction of Intake Well 9 Nos. overhead tanks, having cumulative capacity 0.4 ML water treatment plant 24 MLD (22 hours) raw and clear water pumps, raw water rising main (GRP), clear water feeder main (DL-K-9) Distribution network(HDPE) including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting lines coming under widening of PWD road. 11/Jul/2013 Water Supply 2013-14 61,418,318 17,315,878 - - 29 Executive Engineer, M.I.D.C. Division, Alibag Roha Industrial Area.. Water Supply Scheme... Remodeling of C.I. distribution lines in Roha Indl. Area 7/Jun/2013 Water Supply 2013-14 41,401,515 5,449,144 1,906,427 - 30 Executive Engineer, MIDC Division, Dombivli Dombivli Indl Area...; Providing, laying & jointing 710mm dia HDPE effluent main from CETP in Ph-I in Dombivli Indl Area to Thakurli Railway Bridge (Ch.0 to 1500m). 2/Jul/2013 Water Supply 2013-14 26,573,792 34,830,362 7,992,962 - 31 Executive Engineer Water Supply and Drainage Division Sangli Miraj Kupwad Municipal Corporation. Sangli Under Ground Scheme II Phase II 30/Apr/2013 Sewerag e System 2013-14 104,212,736 122,561,773 63,732,629 44,911,663 32 Executive Engineer Water Supply and Drainage Division Sangli Miraj Kupwad Municipal Corporation. Miraj Under Ground Scheme II 30/Apr/2013 Sewerag e System 2013-14 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 - - - 80IA allowed in Settelment Commission 2012-13 3.10. As stated earlier, all the aforesaid projects were duly examined by the ld.CIT(A) with all supporting documents and he had arrived at the conclusion that the assessee is only a developer. No contrary materials were brought on record with supporting evidences by the revenue to controvert this factual findings of the ld. CIT(A) before us. 3.11. In view of the above observations and respectfully following various orders of this Tribunal in assessee's own case and also the decision of the Hon'ble Jurisdictional High Court in the case of ABG Heavy Industries Pvt. Ltd., reported in 322 ITR 323, we do not find any infirmity in the order of the ld. CIT(A) granting relief to the assessee. 3.12. The decision rendered hereinabove for the A.Y. 2014-15 shall apply mutatis mutandis for A.Y.s 2015-16, 2016-17 and 2017-18 also in view of identical facts, except with variance in figures. 3.13. Hence, the grounds raised by the Revenue for all the Assessment Years are dismissed. 4. In the result all the appeals of the Revenue are dismissed. Order pronounced on 26/10/2022 by way of proper mentioning in the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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