9911796707
TMI Blog2025 (4) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... 991, 992, 993, 994 and 995/2016 for AYs 2004-05, 2005-06, 2006-07, 2007-08 and 2008-09 respectively with the direction to consider all documents and particulars including remand report and rejoinder afresh. 2. Originally the appellant's appeal against the assessment order dated 14-11-2007 passed u/s 143(3) was disposed of by the CIT (Appeals) vide his appellate order dated 30-06-2010. The appeal was against disallowance of claim for deduction of Rs. 6,18,17,507/- u/s 80IA of the Act. Brief history of the case is as under as extracted from the order of the Ld. CIT(A): 3.1. CASE HISTORY: Subsequently, Revenue filed an appeal before the Tribunal against the abovementioned appellate order. The Tribunal, vide its order dated 25- 07-2014 (combined Order for AYs 2006-07, 2007-08, 2005-06, 2008-09 and 2004- 05), observed that the CIT (Appeals) in relation to the appeal for the AY 2006-07, had violated the provisions of sub-sections (1) and (2) of section 250 of the Act by not serving notice to the AO as a result of which natural justice was denied to the Revenue. On the basis of the above observation, the Tribunal held that the order passed by CIT (Appeals) for AY 2006-07 was in vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no comment whatsoever has been made by him either on the remand report submitted by the Assessing Officer or even on the rejoinder filed by the assessee. He has simply held that the issue relating to the assessee's claim for deduction under section 80IA was already considered and decided in favour of the assessee by his Id. predecessor vide his order dated 30.10.2009 passed in the first round and after extracting the relevant portion of the said order, he allowed the claim of the assessee for deduction under section 80IA by simply following the same. As already noted by us, the said order of the Id. CIT (Appeals) dated 30.10.2009 passed in the first round was set aside by the Tribunal on the ground of violation of principles of natural justice after having found that no opportunity of being heard was given by the Id. CIT(Appeals) to the Assessing Officer and the matter was accordingly remitted back to the Id. CIT(Ap- peals) for deciding the same afresh in accordance with law after giving the As- sessing Officer proper and sufficient opportunity of being heard. In these facts and circumstances of the case, when the opportunity given to him by the Id. CIT(Ap- peals) in the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised in Ground No. 1 above, the Ld. Commissioner of Income-tax (Appeals), NFAC, failed to appreciate that the Certificate issued by Hooghly River Bridge Commissioner (HRBC) and Delhi Metro Rail Corporation Ltd. (DMRC) had allegedly not certified that the appellant had been entrusted with conceptualising the concerned Infrastructure Projects. 4. That without prejudice to the contention raised in Ground No. 1 above, the Ld. Commissioner of Income-tax (Appeals), NFAC, was wrong in not appreciating that the financing the concerned Projects had been made by the appellant. 5. That without prejudice to the contentions raised in Grounds Nos. 1 to 4 above, the Ld. Commissioner of Income-tax (Appeals), NFAC, erred in considering the appellant allegedly as a Contractor only and not a Developer and thus he was wrong in holding that the appellant was allegedly not eligible for deduction u/s 80-IA. 6. That the appellant craves leave to add, alter or withdraw any ground or grounds of appeal at or before the hearing of the Appeal." 4. Brief facts of the case are that assessee had filed its return of income showing total income of Rs. Nil for the AY 2007-08. The return was selected for scru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deduction under section 80-IA should be allowed, the Ld. DR relied upon the order of the Ld. CIT(A) and stated that since the assessee was a contractor, the deduction should not be allowed. 6. Before deciding the issue, it would be appropriate at this stage to refer to the order of the Ld. AO, who had required the assessee to justify the claim for deduction u/s 80-IA. The submission of the assessee made during the course of the assessment proceeding has been summarised as under by the Ld. AO: (a) That the assessee has been carrying on the business of developing and maintaining flyovers and metro railway which fall under the category of infrastructure facility under explanation to section 80- IA(4)(i); (b) That it carried on developmental works in pursuance of agreement entered into with prescribed authority of the central government; (c) That the works carried on can in no way be compared to that of a contractor who carries out the work allotted to it whereas the assessee does development of infrastructure work; (d) That a detailed note had been given in the form of a paper book for AY 2006-2007 which was relied upon; (e) That the assessee did not simply execute wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment or a State Government or a local authority or any other statutory body for developing. maintaining and operating a new infrastructure facility. In case of an enterprise carrying on the business of developing or operating and maintaining or Developing, Operating & maintaining an infrastructure facility, the audit report in Form No .- 10CCB shall be accompanied by a copy of the agreement of the enterprise with the Central Government or the State Government or the local authority for carrying on the business of Developing etc. viz. the infrastructure facility. In any other case, the audit report in Form-10CCB shall be accompanied by a copy of the agreement, approval or permission as the case may be, to carry on the activity signed or issued by the Central government or the State Government or the Local authority for carrying on the eligible business - Notification No.240/2002 dated 06.09.02. Further under B-O-L-T scheme of India Railways Concession u/ s. 80IA is applicable only to an Infrastructure Facility meant for Development of Rail System. From the aforesaid provision of Sec.80IA of 1.T. Act, the conditions required for exemption vis-à-vis assessee's situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is not entitled to claim deduction u/ s. 80IA It is also very clear from records and documents submitted that the assessee was awarded contract job for part civil construction of their project for which assessee received contractor's payment after deducting T.D.S. from time to time. Therefore, the assessee is not engaged in development, Maintenance, Operation etc. as are pre-requisite conditions of Infrastructure Project eligible for deduction under section- 80IA, nor has entered into agreement with Government or Local Authority for development of infrastructure facility. The assessee was simply awarded a civil construction job as a contractor. Assessee had also submitted that the details submitted for AY 2006-07 should be considered along with documents in the form of bound book that it is a developer for the Instant assessment year too. The submission was also considered. What is pertinent however is that what assessee has submitted is that it has arranged infrastructure, designed, developed, erected, created all facilities etc but has omitted the most important point-that it has done all these as a contractor as these were purely contractual in nature. Moreover, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of penalty provisions u/ s 271(1)(c) for concealment of income and filing inaccurate particulars of income. 7. Before the Ld. CIT(A), the assessee submitted as under in the Statement of Facts filed with the appeal memo: The appellant has been in the business of carrying out High Technology Construction Activities. In pursuance of agreements entered into with the Government of India, certain State Governments and Local Authorities/ Statutory Bodies formed by the respective Governments, the appellant developed a number of Infrastructure projects such as the Metro Railway in Kolkata as well as in Delhi, several Flyovers in Kolkata, etc. The Metro Railway projects have been taken up and completed by the appellant as per agreements entered into with the Metro Railway Corporation, statutorily established by the Government of India. The Flyovers/ Bridges have been developed as per the agreements entered into with the State Governments and or the Local Authorities/Statutory Bodies formed by the respective State Governments. For the Assessment Year 2007-08 the appellant's Gross Total Income was computed at Rs.6,18,17,507. The appellant was entitled to deduction u/s 80-IA in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucture facilities. However, the Assessing Officer did not properly consider the detailed particulars and explanations furnished before him by the appellant in the matter of its claim for deduction u/s 80-1A. The Assessing Officer did not appreciate the fact that all these developmental works had been carried out by the appellant in pursuance agreements entered into with the Local Authorities and Statutory Bodies. In regard to "local authorities" the Assessing Officer considered the definition of the term "local authority" as given in section 10(20) without appreciating the fact that such definition had been exclusively for the purpose of section 10(20) and such definition would not hold good for any other provision of the Income-tax Act, 1961. The Assessing Officer held that according to him the appellant was allegedly only a contractor for execution of Work Contract and as per the Explanation to section 80-IA the appellant would allegedly not be entitled to deduction u/s 80-IA. On the basis of his above observation the Assessing Officer rejected the appellant's claim of deduction u/s 80-IA. During the assessment proceeding the appellant brought to the notice of the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn the Total Income had been Nil. The Assessing Officer computed the tax/interest payable by the appellant at Rs 31,36,906 which was inclusive of Rs. 7,78,338/ -. 7.1 The Ld. CIT(A) considered the provisions of section 80-IA, as it was in 2007-08 by the Finance Act, 2006, the conditions required to be fulfilled, legislative intention etc. He has also discussed the facts as claimed by the assessee and as noted by the Ld. AO. He also considered the remand report dated 10.11.2014 of the Assessing Officer, the rejoinder to the remand report filed by the assessee, the discussion on the appellant's claim of eligibility and the basis of law and facts, whether the agreement was with the government or local authority or statutory body, the status of DMRC, whether the assessee was engaged in the activities of section 80-IA, analysed what is a "works contract" and after analysis he concluded in Para 23.6 that thus the assessee's business was of works contract. He also considered a few examples of projects of "development, maintain and operate" from the website of the Ministry of Road Transport & Highways and concluded that the claim of the appellant about development, maintain and op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upported by highly technical diagrams/ plans as regards the viability of the development of a Flyover and/ or Metro Railway at the places owned by the Government. It was only after several sets of discussions held between the appellant and the Local Authorities that the decisions were fi- nally taken for the development of Flyover at Kolkata and Metro Railway at Delhi. The entire process to be adopted for carrying out the developmental works, had been planned by the appellant and after thorough examination thereof and nec- essary sanctioning by the Local Authorities, the appellant could proceed with the construction of flyovers as well as the metro railway. The appellant also submits that for designing and conceptualising the above-referred Infrastructure facilities the appellant had to arrange substantial funds of its own through borrowing or otherwise and all the related expenses were on the appellant's account. It had not been a case that the appellant's outgoings were being provided by the Local Au- thorities as would have happened in the case of a normal execution of a works contract. Any risk in relation to the designing and conceptualising the projects had been with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction u/s 80-IA. The Assessing Officer did not appreciate the fact that all these developmental works had been carried out by the appellant in pursuance of Agreements entered into with the local au- thorities and/ or statutory bodies. In regard to "local authorities" the Assessing Officer considered the definition of the term "local authority" as given in section 10(20A) without appreciating the fact that such definition had been exclusively for the purpose of section 10(20A) and such definition would not hold good for any other provision of the Income-tax Act, 1961. The Assessing Officer held that ac- cording to him the appellant was allegedly only a contractor and as per the Ex- planation to section 80-IA the appellant would allegedly not be entitled to deduc- tion u/s 80-IA. On the basis of his above observation the Assessing Officer re- jected the appellant's claim of deduction u/s 80-IA. The appellant submits that DMRC is a joint venture of the Government of India and the Government of Delhi which information is readily available from the let- terhead of DMRC. The appellant submits that DMRC being a joint venture of two Governments, i.e., Government of India and the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the project, the appellant could raise progressive bills on DMRC. From these facts it would be clear that the entire risk for this project towards development of Infrastructure facility, had to be borne by the appellant on its own. It was only after the progress of the devel- opment to a particular extent, the appellant could raise bills on DMRC. The rele- vant details of incurring expenses and raising of the Bills had earlier been pro- duced before the Assessing Officer, but those were not considered by the As- sessing Officer while examining the eligibility of the appellant to deduction u/s 80-IA. The details of incurring of expenditure and raising of bills in relation to DMRC project of Infrastructure development (Metro Railway) are enclosed in the Paper Book for ready reference. The appellant further submits that the authorities of the DMRC certified that the appellant had been entrusted with the work of design, drawing and construction towards the development of Metro Railway Project in Delhi. The appellant submits that the above- mentioned Certificate clearly indicated that the appellant had not been appointed just for execution of any Works Contract towards the develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All the Infrastructure Facility Develop- ments were carried on and completed by the appellants' respective Units as per the Terms and Conditions contained in the relevant Agreements entered into by the appellant with DMRC and HRBC which were Joint venture of the Government of India and Government of Delhi and prescribed LocalAuthority respectively as explained hereinbefore. The main requirement was as to who had been develop- ing the Infrastructure facility. It was the appellant who through its different units had been carrying out the Development of Infrastructure facilities. The appellant submits that all essential elements for an agreement had been con- tained in Tender documents in relation to the development contracts entered into between the appellant on one side and HRBC or DMRC on the other side. Copies of such tender documents had been produced during the Assessment Proceedings for examination thereof. It would be clear from the aforesaid documents that the appellant had been entrusted with the developmental works as per the written agreements which in some cases had been in the form of tender documents. DMRC used to issue Letter of Acceptance (LOA) in duplicate and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment under- takes the Developmental work that the said person becomes entitled for deduc- tion. Since the person engaged by the government or any of its authorities would earn its charges for development works and not through operation/ maintenance of the concerned Infrastructure facility, the deduction u/s 80-IA would be in rela- tion to the said charges for development which would mainly comprise of charges for construction of the facilities. In the appellant's case the Local Authorities after all the procedural formalities, had decided to engage the appellant for develop- ment of the Infrastructure facilities, viz., Flyovers and Metro Railway and the busi- ness of development of Infrastructure facilities as carried on by the appellant would accordingly be entitled for deduction u/s 80-IA. The provisions of section 80-I(A) as had been effective for and up to the Assess- ment Year 1999-2000, had required the transfer of the 'Infrastructure facility' to the Government or the Local Authority/ Statutory Body, as the case may be, within a specified period. So there had been the requirements firstly of ownership' and thereafter 'transfer of the Infrastructure faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Ld. CIT(Appeals). Further the Ld. CIT(Appeals) did not look into the references made to the decisions taken by the Jurisdictional Hon'ble ITAT, Kolkata as well as by the Hon'ble ITAT, Hy- derabad where under the circumstances similar to the appellant's case the Hon'ble ITATs had held that the concerned assessees should be treated as devel- oper and thus those assessees were eligible for deduction u/s 80-IA. Copies of the following Orders of the Hon'ble ITATs have been included in the Paper Book (on cases referred to) :- (1) ACIT, Cir. 12(2), Kolkata v. Simplex Infrastructure Ltd. (ITA No.01/Kol/2020) - Order dated 10/03/2021 (Paper Book Page 102); (2) ITO, Ward 1(2), Hyderabad v. Ayyappa Infra Projects Put. Ltd. (ITA No.1323/Hyd/2018) - Order dated 14/ 11/2018 (Paper Book page 114); (3) DCIT, Central Circle-XXVIII v. SPML Infra Ltd. (ITA No. 1291-1292/Kol-2013) - Order dated 24/08/2016 (Paper Book Page 64); The appellant also refers to the decision of the Hon'ble Gujarat High Court in the case of the Principal Commissioner of Income-tax (Central), Ahmedabad v. Monti- carlo Construction Co. Ltd. in respect of which the Order was passed on 19/ 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anization under government of West Bengal. These certificates merely said that the as- sessee was 'entrusted with construction' and then 'constructed' flyovers and that they had necessary men and machines. No other activity like developing or main- taining or operating of the flyover is certified. As far as the certificates issued by HRBC are concerned, one work was done before 2002 and another before 2005 (it is written that the flyovers were opened for public use in 2002 and 2005 re- spectively). These do not prove anything about its work in FY 2006-07 and hence not relevant for deciding the issue before me. Similarly, one certificate of DMRC certify that work of design, drawing and construction' was done during 12.10.2007 to 15.7.2010. This is also not related to AY 2007-08. The other certif- icate was for work commenced on 23.11.2005 and completed on 31.7.2009. This was also for design and construction of underground station, tunnel and ramp of metro railway. No other activity like developing or maintaining or operating of the metro station rail system is certified. So, these certificates do not prove either of the claims of appellant, viz., that it develope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence has been produced ever before any authority to show that assessee either had the right to do or actually did the work of conceptualizing or commissioning or releasing the infrastructural project like flyovers for public use. In absence of such evidence, I think this is exaggerated claim. In Para 3.3.7 of his order, CIT (A) had said that it was works contract because assessee did work of designing and conceptualizing also. CIT (A) did not discuss with the help of any statute or case laws what is the definition of works contract and how the facts of the case fitted into it. Also, it is stated that after the designs etc are submitted, it is the contractee organization which decides whether to accept or reject such design. Assessee cannot do as it wished. In Para 3.3.9 CIT (A) said that entire financing is done by assessee. This is not correct because assessee spent the money and got reimbursement. The entire connota- tion and import of 'financing' for developing or developing and operating or devel- oping, operating and maintaining seems to have been misconstrued by the as- sessee as well as earlier CIT (Appeals). If we see a tender or agreement of BOT/ BOOT projects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments to claim that it was a developer and not works contractor but without authority of any case law or statutory provision of law. Only the Supreme Court and High Courts can interpret law and only their inter- pretation is binding. Hence, I am unable to accept either the CIT(A)'s earlier orders or appellant's claim. 23. WORKS CONTRACT - In its submissions and, particularly, in the rejoinder, the appellant argued at length to claim that it was a developer and not a contractor and its business was not works contract. In doing so, appellant made a lot of assertions and declarations like, " ... by a work contract it is understood that the relevant contractee asked the contractor to execute certain work as per the speci- fications or planning of the contractee and in such a case the concerned contractor does not have any role to play as regards the designing and/ or making plans for implementation of the desired work. However, in a case where work relating to designing as well as conceptualising a development are entrusted to a person and the said person does the designing and thereafter submits a procedure which should be followed in implementing the desired project, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r it may be a contract for work and use or supply of materials though not accessory to the execution of the contract is voluntary or gratuitous ... In the last class there is no sale because though property passes it does not pass for a price. Whether a contract is of the first or the second class must depend upon the circumstances: if it is of the first, it is a composite contract for work and sale of goods; where it is of the second category, it is a contract for execution of work not involving sale of goods. The question in each case is one about the true agreement between the parties and the terms of the agreement must be deduced from a review of all the attendant circumstances." In the present case it is the first category (in bold). 23.4. In State of Karnataka v. Pro Lab (2015) 8 SCC 557, the Supreme Court said: '20. To sum up, it follows from the reading of the aforesaid judgement in Larsen and Toubro case that after insertion of clause (29-A) in Article 366, the works contract which was indivisible one by legal fiction, altered into a contract, which is permitted to be bifurcated into two: one for sale of goods and the other for ser- vices, thereby making goods comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational Airport. Since the assessee is engaged in the business of developing, operating and maintaining "infrastructure facility" as defined in Explanation to section 80-IA(4) of the Act, in the return, it claimed deduction under section 80- IA(1) read with section 80-IA(4). ... 19. The assessee also enclosed Form no. 10CCB certifying deduction claimed un- der section 80-IA and copy of service provider right holder agreement (SPRH). ... 39. The alternate argument of the Id DR was that as per Explanation below section 80 IA(13), section 80-IA(4) does not apply to a business which is in the nature of a "works contract". As assessee got rights under the SPRH from BIAL, assessee has performed a "works contract" and therefore is not entitled to section 80-IA benefit. Ld. DR cited following judgments for this proposition :- (1) Judgment of the Karnataka HC in Yojaka Marine Pvt Ltd (ITA 428-429 of 2012 dated April 22, 2013), and (II) ITAT LB decision in the case of BT Patil & Sons Belgaum Construc- tions (P) Ltd (2010) 35 SOT 171 (Mumbai ITAT). 40. As a counter argument, the Id AR submitted that :- (i) The nature of work done by the assessee in respect of the design, fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that the assessee has capitalized fuel farm facility and Hydrant system in the books of account since it is the owner of these assets. Therefore, the assessee satisfies the condition of owning the infra- structure facility as mentioned above and eligible to claim deduction under section 80-IA of the Act. 44. The Hon'ble Karnataka High Court in case of Menzies Aviation Bobba (Banga- lore) P. Ltd (supra) has held that: "11. The Appellate Authority has also taken note of the fact that SPRH agreement gives rights for design, construction, financing, testing, commissioning, management and operation of the facility for a total period of 20 years to the assessee and the concession is on built, operate and transfer basis. Therefore, it has been held that every contractor may not be a developer but every developer developing infrastructure facility on behalf of the Government is a contractor. 45. In view of the aforesaid discussion, we are of the considered view that the fuel farm facility built, owned, and operated [BOT] by the assessee falls within the meaning of 'airport' and hence it is an 'infrastructure facility' as per Explana- tion to section 80IA(4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hence, neither the DMRC nor the HRBC are Local Authorities. Although Hooghly River Bridge Commissioners is a statutory organisation under the Government of West Bengal, however as is evident from the document dated 20.04.2005 of the Vice Chairman, the flyover had been constructed under Calcutta Transport Infrastructure Development Project with the loan assistance from Japan bank for International Cooperation (JBIC) and was not financed by the assessee as is incorrectly being claimed. In fact, a perusal of the payment received shows that the assessee was periodically raising bills on part completion of the work and the payment was also being received throughout the year. Therefore, mere furnishing of performance guarantee, which is only a part of the total project cost and is also required from a contractor so as to ensure that the work is completed in time, does not justify the claim of the assessee that it had taken substantial financial risks. In fact, in the decision of Montecarlo Construction Ltd. (supra) relied upon by the assessee, the entire payment was claimed to be made by the appellant and the decision is distinguishable on facts as the issues noted in the case of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunnels etc were handed over to contractee organization after construction. For this reason also, even if deduction allowed in year of construction, the in subsequent years as the trans- feree, viz., HRBC of DMRC, as the case may be will be entitled to the deduction. (d) Infrastructure facility shall have to be only road including toll road, a bridge or a rail system OR a highway project in- cluding housing or other activities being an integral part of the highway project OR a water supply project, water treat- ment system, irrigation project, sanita- tion and sewerage system or solid waste management system OR a port, airport, inland waterway or inland port [Section 80IA(4)] No adverse finding 1. Profit should not arise out of business in the nature of 'works contract' [Expla- nation below Section 80IA introduced by Finance Act, 2007, w.e.f. 1.4.2000] For detailed discussion above, I hold that it was works contract Profit of infrastructure facility will be cal- culated as if the infrastructure facility is the only business of the assessee [Sec- tion 80IA(5)] Nothing has been mentioned about profit determined on the basis of separate accounts by every under- taking A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot for the persons who merely exe- cute the civil construction work or any other works contract. Accordingly, it is proposed to clarify that the provisions of section 80-IA shall not apply to a person who executes a works contract entered into with the undertak- ing or enterprise referred to in the said section. Thus, in a case where a person makes the investment and himself executes the development work i.e., carries out the civil construction work, he will be eligible for tax benefit under section 80-IA. In contrast to this, a person who enters into a contract with another person [i.e., undertaking or enterprise referred to in section 80-IA) for executing works contract, will not be eligible for the tax benefit under section 80-IA. This amendment will take retrospective effect from 1st April, 2000 and will, ac- cordingly, apply in relation to the assessment year 2000-2001 and subsequent years. [Clause 22]" 10. LEGISLATIVE INTENTION: Circular no. 3/2008 dated 12.3.2008, also ex- plained the amendment (Explanatory Notes to the Finance Act, 2007) "Clarification regarding developer with reference to infrastructure facil- ity, industrial park, etc. for the purposes of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of development, operation and maintenance, & development, operation and maintenance were to enable a developer, who may not have the wherewithal to operate and maintain the infrastructure facility created but has the resources and the willingness to develop the infrastructure facility only with the operation and maintenance assigned to some other entity, so as to undertake entrepreneurial and investment risks for development of the infrastructure facility. The agreements, extracts of which have been filed with the paper book, also mention contracts and the assessee as a "contractor" was given the contract for the design, and completion of the work by both the agencies and for which periodic payments were received by the assessee. The arrangement is similar to that of a contract and a contractor is also required to furnish performance and other guarantees as a part of the contract on which tax has been deducted at source. Further, in the AY 2006-07, the Ld. CIT(A) did not consider the aspects noted by the Ld. AO in the impugned assessment year. Thus, viewed in totality, the claim of the assessee for deduction under section 80-IA(4) of the Act is not justified. 11. Hence, the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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