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TMI Blog2024 (8) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be examined is an agreement entered into with the principals. The terms and conditions and the nature of work specified in the agreement can only decide whether the assessee is a developer of an infrastructure project or a simple work contractor who executes civil construction work for a developer. Since, the AO has not examined the agreement entered into by the appellant with various government and semi-government departments, in our considered view, the matter needs to go back to the file of the AO for fresh examination. Thus, we set aside the order of the CIT(A) on this issue and restore the issue back to the file of the AO and direct the AO to re-examine the claim of deduction u/s. 80IA(4) of the Act, in light of necessary evidences including agreement entered into by the appellant with various departments and ascertain the nature of works executed by the assessee, in order to consider for the purpose of section 80IA(4) - Appeal filed by the assessee is allowed for statistical purposes. - SHRI MANJUNATHA. G, HON BLE ACCOUNTANT MEMBER AND SHRI MANOMOHAN DAS, HON BLE JUDICIAL MEMBER For the Appellant : Shri. D. Anand, Advocate For the Respondent : Shri. P. Sajit Kumar, JC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a developer as well. The term 'contractor' is not essentially contradictory to the term 'developer'. On the other hand, rather section 80-IA(4) itself provides that assessee should develop the infrastructure facility as per agreement with the Central Government, State Government or Local Authority. So entering into lawful agreement and thereby becoming a contractor should, in no way be a bar to the one being a developer. Therefore merely because in the agreement for the development of infrastructure facility, assessee is referred to as contractor or because some basic specifications are laid down, it does not detract the assessee from the position of being a developer not will it debar the assessee from claiming section 80-IA(4). In view of the above clear pronouncements, the appellant submits that the appellant is eligible for deduction u/s. 80-IA(4) as claimed by it. 6. The Appellant submits that the Hon'ble Members of the ITAT, C-Bench in their decision in the case of M/s. R.R.Constructions, Chennai in ITA No.2061/Mds/2010 have observed that the Hon'ble Supreme Court in the case of Bajaj Tempo Ltd. Vs. CIT 196 ITR 188 has ordained that taxing statute gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80-IA passed in the order of the CIT(A) may be cancelled. 15. The appellant craves leave to file additional grounds. 3. The brief facts of the case are that, the assessee company is engaged in the business of civil construction, filed its original return of income on 29.09.2011 and said return has been revised on 10.10.2011, disclosing total income of Rs. 74,70,298/-. The assessee has claimed deduction u/s. 80-IA(4) of the Income-tax Act, 1961 (hereinafter referred to as the Act ), towards various projects executed for Government and semi-government undertakings. The assessee claims that it was a developer of infrastructure projects as defined u/s. 80-IA of the Act and thus, its claim of deduction u/s. 80-IA of the Act is in accordance with law. The Assessing Officer, disallowed deduction claimed u/s. 80-IA(4) of the Act on the basis of disallowance of deduction for assessment year 2009-10. The Assessing Officer has discussed the issue at length in light of provisions of section 80-IA(4) of the Act, Explanation of section 80-IA of the Act and the legislative intent as per Memorandum explaining the provisions in the Finance Bill, 2009 and came to the conclusion that, in cases of a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer to verify the claim in light of agreement entered into by the assessee with various departments and also to ascertain the entitlement for deduction u/s. 80-IA(4) of the Act. 5. The ld. DR, Shri. P. Sajit Kumar, JCIT, on the other hand supporting the order of the Assessing Officer and ld. CIT(A) submitted that, as per explanation to section 80-IA of the Act, inserted by Finance Act, 2009 with retrospective effect from 01.04.2000, the provisions of section 80-IA of the Act shall not apply to a person who executes works contract which is in the nature of works contract awarded by any person including the central or state government. In the present case, if you go by the nature of projects undertaken by the assessee and also the amount of contract values, it is abundantly clear that the appellant is a simple work contractor, who executes works for various government and semi-government departments. Therefore, there is no error in the reasons given by the Assessing Officer to disallow deduction claimed u/s. 80-IA(4) of the Act and their order should be upheld. 6. We have heard both the parties, perused materials available on record and gone through orders of the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee, the nature of agreement entered into by the appellant in the assessment year 2009-10 and for the impugned assessment year may be different and further, on the basis of agreement entered by the appellant for the assessment year 2009-10, conclusion cannot be drawn against the assessee to hold that the assessee is a works contractor, but not a developer. We find merit in the arguments of the Ld. Counsel for the assessee, because in order to ascertain the nature of works executed by the assessee, the basic documents required to be examined is an agreement entered into with the principals. The terms and conditions and the nature of work specified in the agreement can only decide whether the assessee is a developer of an infrastructure project or a simple work contractor who executes civil construction work for a developer. Since, the Assessing Officer has not examined the agreement entered into by the appellant with various government and semi-government departments, in our considered view, the matter needs to go back to the file of the Assessing Officer for fresh examination. Thus, we set aside the order of the ld. CIT(A) on this issue and restore the issue back to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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