M/s. Enviro Control Associated Pvt.Ltd., Surat V. The Dy.CIT.,Circle-1, Surat

ITA 1259/AHD/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0059 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 10-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 28-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANT JAVERI
• Assessee Lawyers: RASHESH SHAH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER ./ ITA NO. 1259/AHD/2011 / ASSESSMENT YEAR: 2008-09 M/S. ENVIRO CONTROL ASSOCIATES (I) PVT LTD, ENVIRO HOUSE, OPP. BANK OF MAHARASHTRA, GHOD DOD ROAD, SURAT PAN : AAACE 8700 C VS. DCIT, CIRCLE-1, SURAT / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI RASHESH SHAH, AR REVENUE BY : SHRI JAYANT JAVERI, SR DR / DATE OF HEARING : 10/11/2016 / DATE OF PRONOUNCEMENT: 16/11/2016 / O R D E R PER N.K. BILLAIYA, ACCOUNTANT MEMBER: WITH THIS APPEAL THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF THE CIT(A)-I, SURAT DATED 01.04.2011 PERTA INING TO AY 2008-09. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE C IT(A) ERRED IN CONFIRMING THE ACTION OF AO IN DISALLOWING DEDUCTIO N U/S 80IA(4) OF THE ACT AMOUNTING TO RS.8,52,50,413/-. 3. THE ASSESSEE-COMPANY IS ENGAGED IN THE BUSINESS OF DEVELOPMENT OF VARIOUS INFRASTRUCTURE FACILITIES RELATING TO WATER AND SEWAGE TREATMENT AND ITS OPERATION AND MAINTENANCE. DURING THE YEAR, THE ASSESSEE HAS CLAIMED DEDUCTION OF RS.8,52,50,413/- U/S 80IA(4) OF THE AC T IN RESPECT OF PROFIT FROM INFRASTRUCTURE DEVELOPMENT AND THEIR OPERATION AND MAINTENANCE ACTIVITIES. ITA NO. 1259/AHD/2011 ENVIRO CONTROL ASSOCIATES (I) PVT LTD VS. DCIT AY : 2008-09 2 4. THE AO ASKED THE ASSESSEE TO JUSTIFY ITS CLAIM O F DEDUCTION. THE ASSESSEE FILED A DETAILED REPLY JUSTIFYING ITS CLAI M OF DEDUCTION AND IN SUPPORT OF ITS CLAIM, FILED COPY OF ORDER OF THE TR IBUNAL IN ASSESSEES OWN CASE IN AYS 2003-04 AND 2004-05 IN ITA NOS. 1681 & 1682/AHD/2006. 5. THE CLAIM OF THE ASSESSEE WAS NOT ACCEPTABLE TO AO. THE AO STATED THAT THE DECISION OF THE TRIBUNAL HAS NOT BEEN ACCE PTED BY THE REVENUE WHICH HAS PREFERRED APPEAL BEFORE THE HONBLE HIGH COURT; AND SECONDLY, THE ASSESSEE IS MERELY A CONTRACTOR, DOING ITS JOB AS REQUIRED BY THE AGENCIES AND DOES NOT OWN THE INFRASTRUCTURE FACILITIES. 6. AGGRIEVED BY THE DECISION OF THE AO, THE ASSESSE E CARRIED THE MATTER BEFORE THE CIT(A) AND REITERATED ITS CLAIM. AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY MAKING FOLLOWING OBSERVATIONS:- THE ARGUMENT OF THE APPELLANT THAT THE HONBLE ITA T HAS ALLOWED THE CLAIM OF THE APPELLANT FOR AYS 2003-04 & 2004-05 IS, WITH DUE RESPECT, NOT ACCEPTABLE BECAUSE EVEN THOUGH THE FACTS IN THE CUR RENT ASSESSMENT YEAR AND THOSE YEARS ARE SIMILAR BUT THERE ARE TWO CRUCIAL P OINT WHICH WERE NOT THERE IN THE ASSESSMENT ORDER FOR A.Y.S 2003-04 & 2004-05 AND WHICH THE HON'BLE ITAT HAS NOT CONSIDERED. FIRSTLY, BY THE FINANCE AC T, 2009 AN EXPLANATION HAS BEEN INSERTED AT THE END OF SECTION 80IA W.E.F 1.4.2000 ACCORDING TO WHICH NOTHING CONTAINED IN SEC. 80IA SHALL APPLY TO A PERSON WHO EXECUTES WORK CONTRACT. THE APPEALS FOR A.YS 2003-04 & 2004 -05 WERE DECIDED BY THE CIT(A) ON 22.3.2006 AND 12.04.2006_RESPAETIVELY. A T THAT TIME THIS EXPLANATION WAS NOT ON THE STATUTE. FURTHER THE ORD ER OF THE I HON'BLE ITAT DT.20.3.2009 FOR THESE TWO ASSESSMENT YEARS HAVE NO T CONSIDERED THIS EXPLANATION WHILE DECIDING THE REVENUE'S APPEAL. SE CONDLY, IN THE RECENT DECISION DT.4.11.2009, THE HON'BLE ITAT, MUMBAI LAR GER BENCH HAS IN THE CASE OF B.T. PATIL & SONS VS. ACIT DECIDED THAT THE DEDUCTION U/S 80IA(4) IS NOT AVAILABLE TO CONTRACTORS. IT CAN BE SEEN THAT T HE HON'BLE ITAT HAS CLEARLY DIFFERENTIATED BETWEEN DEVELOPER AND CONTRACTOR AND HAS STATED THAT THE DEVELOPER DESIGNS AND CONCEIVES NEW PROJECTS WHILE THE CONTRACTOR EXECUTES THE SAME. SINCE THE APPELLANT IS ONLY EXECUTING THE PROJECT IT IS ONLY A ITA NO. 1259/AHD/2011 ENVIRO CONTROL ASSOCIATES (I) PVT LTD VS. DCIT AY : 2008-09 3 CONTRACTOR. SINCE THIS DECISION IS GIVEN BY A LARGE R BENCH, THEREFORE, THE DECISION OF THE HON'BLE ITAT, AHMEDABAD IN ITS OWN CASE FOR A.Y.2003-04 & 2004-05 RELIED UPON BY THE APPELLANT IS DISTINGUISH ABLE. IN VIEW OF THE ABOVE DISCUSSION, THE DECISION OF TH E HON'BLE ITAT, AHMEDABAD RELIED UPON BY THE APPELLANT IN ITS OWN C ASE FOR A.YS. 2003-04 & 2004-05 IS DISTINGUISHABLE BECAUSE AS STATED ABOVE THE EXPLANATION INSERTED BY THE FINANCE ACT, 2009 W.E.F 1.4.2000 HAS NOT BEE N CONSIDERED BY THE HON'BLE ITAT AND ALSO BECAUSE IN THE CASE OF B.T. P ATIL & SONS (SUPRA) A LARGER BENCH OF THE HON'BLE ITAT HAS REVERSED THE D ECISION OF PATEL ENGINEERING AND HAS CLEARLY DEFINED THAT A DEVELOPE R IS ONE WHO DESIGNS AND CONCEIVES NEW PROJECTS WHEREAS THE CONTRACTOR MEREL Y EXECUTES THE SAME. WE FIND THAT THE APPELLANT'S CASE FOR CLAIMING DEDU CTION U/S.80IA TO THE TUNE OF RS. 8,52,50,413/- FAILS BECAUSE OF THE FOLLOWING REASONS AMONG OTHERS (AS DISCUSSED ABOVE ): I. THE APPELLANT DOES NOT OWN THE FACILITY. II. THE APPELLANT IS NOT A DEVELOPER WITHIN THE MEANING OF SEC.80IA(4). III. THE APPELLANT IS ALSO HIT BY THE PROVISIONS OF SEC.80IA(2). IV. THE APPELLANT IS ENGAGED ONLY IN WORKS CONTRAC T AND IS THUS HIT BY NEWLY INSERTED EXPLANATION BY FINANCE ACT, 2009 WHICH DEN IES BENEFIT TO PERSONS ENGAGED IN WORKS CONTRACT. V. THE APPELLANT HAS NOT BROUGHT PRIVATE CAPITAL I N THE DEVELOPMENT OF INFRASTRUCTURE FACILITY WHICH IS THE PURPOSE OF GRA NTING BENEFIT U/S.80IA. V. THE DECISION IN THE CASE OF M/S. B.T. PATIL HA S TAKEN AWAY THE BASIS ON WHICH ITAT, AHMEDABAD DECIDED THE MATTER IN FAVOUR OF APPELLANT FOR A.Y.2003-04 & 2004-05. THUS, THE CLAIM OF THE APPELLANT FOR GRANT OF BENEF IT U/S.80IA IS WITHOUT ANY BASIS AND THE DISALLOWANCE MADE BY THE A.O. IS UPHE LD. THUS, THIS GROUND OF APPEAL IS DISMISSED. ' 7. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. 8. THE COUNSEL FOR THE ASSESSEE VEHEMENTLY STATED T HAT THE REASONS GIVEN BY THE CIT(A) HAS BEEN ALREADY TAKEN CARE OF BY THE TRIBUNAL IN SUBSEQUENT YEARS, I.E. AY 2005-06 IN ITA NO.2369/AHD/2011, AY 2006-07 IN ITA ITA NO. 1259/AHD/2011 ENVIRO CONTROL ASSOCIATES (I) PVT LTD VS. DCIT AY : 2008-09 4 NO.2589/AHD/2009, AY 2007-08 IN ITA NO.783/AHD/2010 AND AY 2009-10 IN ITA NO.2083/AHD/2012. IT IS THE SAY OF THE COUN SEL THAT THE TRIBUNAL IN ASSESSEES OWN CASE IN PRECEDING AS WELL AS SUBSEQU ENT ASSESSMENT YEARS HAS ALLOWED THE CLAIM OF DEDUCTION AND THEREFORE, THE S AME SHOULD BE ALLOWED FOR THE YEAR UNDER CONSIDERATION ALSO. 9. PER CONTRA, THE DR STRONGLY SUPPORTED THE FINDIN GS OF THE REVENUE AUTHORITIES. 10. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE D ECISIONS OF THE CO- ORDINATE BENCH (SUPRA). WE FIND FORCE IN THE CONTE NTION OF THE LD. COUNSEL. WE FIND THAT THE CO-ORDINATE BENCH, AFTER CONSIDERI NG ALL THE ISSUES RAISED BY THE REVENUE, BY A CONSOLIDATED ORDER FOR AYS 200 5-06 TO 2007-08 AND 2009-10 VIDE ORDER DATED 30.04.2013 HAS HELD AS UND ER:- 6. WE HAVE HEARD BOTH THE SIDES AT LENGTH IN THE L IGHT OF THE ORDERS OF THE AUTHORITIES BELOW AND THE CASE-LAW CITED. WE HAVE E XAMINED THE FACTS OF THE CASE AND THEREUPON CAME TO KNOW ABOUT THE WORK OF T HE ASSESSEE AS DISCUSSED BY THE AO THAT THE ASSESSEE HAS DEVELOPED AN INFRAS TRUCTURE PROJECT AS PER THE TERMS AND CONDITIONS LAID DOWN BY AN AGREEMENT ENTE RED INTO WITH SURAT MUNICIPAL CORPORATION. THE FACTS HAVE REVEALED, AS DISCUSSED BY LD.CIT(A), THAT SURAT MUNICIPAL CORPORATION HAS INFORMED THAT THE ASSESSEE HAS MADE AN OFFER NOT ONLY FOR THE DEVELOPMENT OF THE SAID I NFRASTRUCTURE FACILITY BUT ALSO FOR THE OPERATION AND MAINTENANCE FOR 60 MLD C APACITY SEWERAGE TREATMENT PLANT AT SURAT FOR FIVE YEARS FOR AN AMOU NT OF RS.1,32,00,000/- WHICH WAS ACCEPTED BY THE STANDING COMMITTEE VIDE R ESOLUTION DESCRIBED THEREIN. IN THAT CONTRACT, ALL RISKS WERE BELONGED TO THE ASSESSEE AND THE ASSESSEE WAS REQUIRED TO HAVE A INSURANCE POLICY TO COVER ALL THIRD PARTY RISKS. WHAT WE HAVE NOTED THAT OTHERWISE THE ASSESS EE QUALIFIES U/S.80IA(4) BECAUSE AS PER THE DEFINITION PRESCRIBED IN EXPLANA TION TO SECTION 80IA(4) A SEWERAGE SYSTEM IS WITHIN THE DEFINITION OF INFR ASTRUCTURE FACILITY. NOW, HEREINBELOW WE SHALL DEAL, AS ALSO CONSIDER, T HE POINT-WISE OBJECTION OF THE REVENUE DEPARTMENT AND EXAMINE WHETHER THOSE OB JECTIONS HAVE RIGHTLY BEEN RAISED IN THE CASE OF THE ASSESSEE. ITA NO. 1259/AHD/2011 ENVIRO CONTROL ASSOCIATES (I) PVT LTD VS. DCIT AY : 2008-09 5 (A) THE OBJECTION OF THE REVENUE DEPARTMENT IS THAT THE ASSESSEE HAS BEEN TERMED AS CONTRACTOR AS PER THE TERMS OF THE AGRE EMENT WITH SMC. THIS VERY OBJECTION HAS BEEN DEALT WITH BY ITAT D BENCH AHMEDABAD IN THE CASE OF EN-VISION ENVIRO ENGINEERS PVT.LTD. VS. DCIT (IN ITA NO.2902/AHD/08 & OTHERS FOR AY 2005-06) ORDER DATED 30/04/2012, WHEREIN WE HAVE OPINED, QUOTE WE HAVE EXAMINED BOT H THE AGREEMENTS. UNDISPUTEDLY, THE ASSESSEE HAS BEEN REFERRED AS A CONTRACTOR IN THE AGREEMENT DATED 15/07/2004. HOWEVER, IT WAS NOT SO IN THE AGREEMENT DATED 14/11/2002 EXECUTED WITH SURAT MUNICIPAL CORP ORATION. BE THAT AS IT WAS, MERELY MENTIONING THE ASSESSEE AS CONTR ACTOR THE EXACT NATURE OF THE EXECUTION OF THE WORK DO NOT ALTER. R ATHER, THIS CONTROVERSY HAS BEEN RESOLVED BY RESPECTED COORDINATE BENCH IN THE CASE OF PATEL ENGINEERING LTD. 94 ITD 411(MUM.)CITED-SUPRA. WE AR E CONVINCED WITH THE ARGUMENT OF THE LD.AR THAT A CONTRACTOR CAN ALS O BE A DEVELOPER. IN THIS CONTEXT, OUR ATTENTION HAS BEEN DRAWN ON A LAT EST DECISION OF HONBLE GUJARAT HIGH COURT PRONOUNCED IN THE CASE OF CIT VS . RADHE DEVELOPERS (2012)341 ITR 403 (GUJ.), WHEREIN THE ISSUE WAS IN RESPECT OF CLAIM OF DEDUCTION U/S.80IB(10) OF IT ACT AND THE ASSESSEE H APPENED TO BE DEVELOPER-CUM-BUILDING CONTRACTOR. THE HONBLE CO URT HAS HELD THAT THE SAID DEVELOPER HAD TO MAKE THE CONSTRUCTION AND TO ENGAGE LABOUR ON CONTRACT, THEREFORE THE TERM DEVELOPER HAS TO BE UNDERSTOOD IN COMMON PARLANCE AS WELL AS IN LEGAL SENSE. THE HONBLE COU RT HAS TAKEN THE HELP OF WEBSTERS- ENCYCLOPEDIA AND OTHER DICTIONARIES AN D THEREUPON OPINED THAT THE TERM DEVELOPER CARRIES A MUCH WIDER CONN OTATION. AS FAR AS THE AGREEMENT WITH SURAT MUNICIPAL CORPORATION IS C ONCERNED, THE ASSESSEE HAS BEEN REFERRED AS PARTY OF THE FIRST P ART, HENCE NO SEROUS OBJECTION HAS BEEN RAISED BY THE REVENUE. ON ACCOUN T OF THESE REASONS AND FOLLOWING THE VIEW EXPRESSED BY THE HONBLE COU RT AS ALSO CONSIDERING THE NATURE OF THE WORK EXECUTED BY THIS ASSESSEE, WE ARE NOT INCLINED TO AGREE WITH THE AO THAT THE ASSESSEE HAS ACTED MERELY AS A CONTRACTOR, RATHER, WE HEREBY HOLD THAT THE ASSES SEE HAS ACTED AS A DEVELOPER. HERE-IN-BELOW ARE FEW OTHER REASONS HE REBY ASSIGNED BY US. UNQUOTE. THE PRESENT ASSESSEE ALSO FALLS IN TH E SAME CATEGORY, THEREFORE WE HEREBY HOLD THAT FACTUALLY THE ASSESSE E HAS UNDERTAKEN THE PROJECT NOT MERELY AS A CONTRACTOR BUT ALSO AS A DE VELOPER. (B) THE REVENUE HAS RAISED AN OBJECTION THAT AFTER THE INTRODUCTION OF EXPLANATION BY FINANCE ACT (2) OF 2009 WITH RETROSP ECTIVE EFFECT FROM 1.4.2000, THE ASSESSEE IS NOT ENTITLED FOR THE DEDU CTION BEING THE NATURE OF WORK WAS A WORKS-CONTRACT. EVEN THIS QUESTION HAS BEEN DULY ANSWERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL IN THE CASE OF EN- VISION ENVIRO ENGINEERS PVT.LTD. (SUPRA), WHEREIN P ARAGRAPH NO.7.3. IT WAS HELD, QUOTE 7.3. WE HAVE ALSO EXAMINED THE OTH ER AGREEMENT DATED 14/11/2002 WHICH IN ITS NOMENCLATURE SAYS AGREEMEN T FOR TREATMENT OF BIO MEDIAL WASTE ON BOOT (BUILD, OWN, OPERATOR, TRA NSFER) BASIS ITA NO. 1259/AHD/2011 ENVIRO CONTROL ASSOCIATES (I) PVT LTD VS. DCIT AY : 2008-09 6 BETWEEN SURAT MUNICIPAL CORPORATION AND EN-VISION E NVIRO ENGINEERS PVT.LTD. FOR THE REMOVAL AND DISPOSAL OF REFUSE, R UBBISH AND GARBAGE OF VARIOUS HOSPITALS, CLINICS, NURSING HOMES IN SURAT, IT WAS REQUIRED BY THE MUNICIPAL CORPORATION TO HANDLE AND MANAGE THE SAME , HENCE, INVITED BOOT TENDER. THE ASSESSEE HAS OFFERED AND ON A TOKE N RENT OF RE.1/- PER SQUARE METER PER ANNUM, THE SAID AGREEMENT WAS ENTE RED INTO FOR SEVEN YEARS. THE ASSESSEE IS TO MAKE THE CONSTRUCTION ON THE LAND AS PER THE APPROVED PLANS. THE ASSESSEE HAS TO INSTALL NECESSA RY EQUIPMENT AND MACHINERY. ONE OF THE CLAUSES IS VERY CLEAR THAT E N-VISION SHALL BEAR ALL THE EXPENSES FOR PUTTING UP THE SAID PLAN. THE ASS ESSEE IS ENTITLED TO CHARGE FOR TREATMENT OF WASTE PER KG. AS FIXED BY M UNICIPAL CORPORATION FROM TIME TO TIME. ONE OF THE CLAUSES, THUS IS CLEA R THAT THE RATE SHALL BE AS PER THE QUOTATIONS AGREED UPON. ON TERMINATION O F AGREEMENT, THE PROJECT IS TO BE TAKEN OVER. AT THIS JUNCTURE, LD.A R HAS ALSO MENTIONED THE CHANGE IN THE STATUTE THROUGH WHICH ONE OF THE CONDITION OF TRANSFER OF THE INFRASTRUCTURE BACK TO THE GOVERNMENT HAS BE EN WAIVED OF. UNQUOTE. THE TOTALITY OF THE FACTS AND CIRCUMSTANCE S OF THE CASE AS ALSO THE MATERIAL PLACED BEFORE US, WE HEREBY HOLD THAT THE SAID EXPLANATION IS NOT APPLICABLE ON THE ASSESSEE BECAUSE THE PROJECT ASSIGNED TO THE ASSESSEE BY SURAT MUNICIPAL CORPORATION WAS NOT MERELY IN TH E NATURE OF WORKS-CONTRACT BUT MUCH MORE THAT I.E. TO DEVELOP THE INFRASTRUCTURE AND TO OPERATE THE SAME. (C) AN ANOTHER OBJECTION OF THE REVENUE DEPARTMENT IS THAT THE SAID INFRASTRUCTURE FACILITY IS NOT OWNED BY THE COMPANY . WE WANT TO CLARIFY THAT A VIEW HAS ALREADY BEEN TAKEN IN THIS REGARD A ND IT WAS HELD AFTER ANALYZING THE LANGUAGE OF SECTION 80IA(4) THAT THE ENTERPRISE CARRYING ON THE BUSINESS OF DEVELOPMENT AND MAINTENANCE OF A NY INFRASTRUCTURE FACILITY IS TO BE OWNED BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM OF SUCH COMPANIES. THUS, THIS SECTION SA YS THAT AN ENTERPRISE IS TO BE OWNED BY THE ASSESSEE COMPANY W HICH IS IN THE BUSINESS OF DEVELOPMENT, MAINTENANCE AND OPERATION OF INFRASTRUCTURE FACILITY. IT IS NOT THE INTENTION OF THIS SECTION T HAT THE INFRASTRUCTURE FACILITY IS TO BE OWNED BY THE ASSESSEE-COMPANY. OT HERWISE ALSO, AN INFRASTRUCTURE FACILITY MOSTLY/GENERALLY BELONGS TO THE GOVERNMENT, HENCE THERE IS NO QUESTION OF AN INFRASTRUCTURE FAC ILITY TO BE OWNED BY A PRIVATE PERSON. (D) THE DECISION OF PATEL ENGINEERING LTD.(84 TTJ 6 46) HAS BEEN DISCUSSED BY THE REVENUE AUTHORITIES AND WE ARE ALSO OF THE OPIN ION THAT THE RATIO LAID DOWN IN THE SAID DECISION IS TO BE APPLIED ON THE F ACTS OF THE PRESENT CASE TO ALLOW THE CLAIM OF DEDUCTION U/S.80IA(4) OF IT A CT. (E) THERE IS A DISCUSSION OF B.T.PATIL & SONS BELGA UM CONSTRUCTION (P.) LTD. VS. ASST.CIT (2010) 35 SOT 171 (MUM.) (LB), BUT THE LATEST POSITION IS ITA NO. 1259/AHD/2011 ENVIRO CONTROL ASSOCIATES (I) PVT LTD VS. DCIT AY : 2008-09 7 THAT THE ITAT B BENCH PUNE PASSING THE CONSEQUENT IAL ORDER HAS HELD AS PER AN ORDER PRONOUNCED ON 28.2.2013 THAT IN THE LIGHT OF A LATEST DECISION OF HONBLE BOMBAY HIGH COURT PRONOUNCED IN THE CASE OF ABG HEAVY INDUSTRIES LTD. 322 ITR 323 IS TO BE FOLLOWED AND THEREFORE IT WAS HELD THAT THE LAW AS INTERPRETED BY THE LARGER BENC H IS NO LONGER A GOOD LAW. THE OUTCOME OF THE JUDGEMENT IS THAT, QUOTE14 . IN THIS BACKGROUND, THE ASSESSEE COULD CERTAINLY CLAIM THE DEDUCTIONS UNDER THE PROVISION OF SECTION 80IA. ONE HAS TO SEE THE SUBST ANCE AND NOT THE FORM ESSENTIALLY, THOUGH IT WAS A JOINT VENTURE, IT WAS CONVERTED INTO ASSESSEES VENTURE. THE OTHER VENTURER WITHDREW AND THE ENTIRE WORK WAS EXECUTED BY THE ASSESSEE THOUGH IN THE NAME OF JOINT VENTURE. THE JOINT VENTURE IS NOTHING BUT THE VENTURE OF THE ASS ESSEE COMPANY AND THE OTHER PERSON NOT BEING A PARTY AFTER WITHDRAWING TH E QUESTION OF JOINT VENTURE DOES NOT ARISE. THE VENTURE WAS FULLY CARRI ED OUT BY THE ASSESSEE AND IT WAS ENTIRELY EXECUTED BY THE ASSESSEE COMPAN Y. TAKING THE SUBSTANCE OF THE TRANSACTION, THE ASSESSEE ARE ENTI TLED TO ALL THE PROFITS IN RESPECT OF THE CONTRACT EXECUTED BY THEM, HENCE THE ASSESSEE WOULD CERTAINLY BE ENTITLED TO DEDUCTION UNDER THE PROVIS IONS OF 80IA AS THEY HAVE FULFILLED ALL THE OTHER CONDITIONS. THIS VIEW GET STRENGTH FROM DECISION IN THE CASE OF ITAT, INDORE BENCH, IN CASE OF AYUSH AJAY CONSTRUCTIONS LTD. (SUPRA). THUS, WHILE GIVING EFFE CT TO THE OPINION OF THIRD MEMBER U/S.255(4) OF THE ACT, WE TAKE VIEW IN CONFORMITY WITH ORDER OF JURISDICTIONAL HIGH COURT IN CASE OF ABG H EAVY INDUSTRIES LTD. (SUPRA) AVAILABLE AT THIS TIME THOUGH CONTRARY TO T HE OPINION EXPRESSED BY THE THIRD MEMBER. SO IN VIEW OF ABOVE DISCUSSION , FOLLOWING THE RATIO OF JURISDICTIONAL HIGH COURT IN CASE OF ABG HEAVY I NDUSTRIES LTD. (SUPRA), THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEDUCTION U/S.80IA(4) OF THE ACT TO THE ASSESSEE WITH REGARD TO THE PROJE CTS IN QUESTION FOR BOTH THE YEARS. THE MATTER IS DISPOSED OFF ACCORDINGLY. UNQUOTE. 7. FINALLY, THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES 322 ITR 323(MUM.) IS DIRECTLY APPL ICABLE ON THE ASSESSEE, WHEREIN IT WAS OPINED THAT THE SAID ASSESSEE ENTERE D INTO A CONTRACT FOR SUPPLY, INSTALLATION, TESTING, COMMISSIONING AND MA INTENANCE OF CONTAINER HANDLING CRANES AT JNPT FOR A TERM OF 10 YEARS WHER EAFTER THE SAME WOULD VEST IN THE LETTER, IS ENTITLED FOR DEDUCTION U/S.8 0IA(4). THIS DECISION OF THE HONBLE COURT IS DIRECTLY APPLICABLE ON THE FACTS O F THE CASE. 8. IN THE LIGHT OF THE OVERALL DISCUSSION AND SP ECIALLY CONSIDERING THE FACT THAT IN ASSESSEES OWN CASE FOR AYS 2003-04 & 2004- 05 VIDE AN ORDER DATED 20/03/2009(SUPRA), THE RESPECTED COORDINATE BENCH H AS ALREADY GRANTED THE DEDUCTION CLAIMED BY THE ASSESSEE, THEREFORE FOR TH E YEARS UNDER CONSIDERATION THE ASSESSEE IS ENTITLED FOR THE DEDUCTION U/S.80IA (4) OF THE IT ACT AS PER LAW. ITA NO. 1259/AHD/2011 ENVIRO CONTROL ASSOCIATES (I) PVT LTD VS. DCIT AY : 2008-09 8 11. RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDIN ATE BENCH (SUPRA), WE SET ASIDE THE FINDINGS OF THE CIT(A) AND DIRECT THE AO TO ALLOW THE ASSESSEE THE DEDUCTION OF RS.8,52,50,413/- U/S 80IA(4) OF TH E ACT. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 16 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SD/- (S.S. GODARA) JUDICIAL MEMBER (N.K. BILLAIYA) ACCOUNTANT MEMBER AHMEDABAD; DATED 16/11/2016 BIJU T., SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! # / CONCERNED CIT 4. # ( ) / THE CIT(A ) 5. & ! , ! , / D R, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) # $, / ITAT, AHMEDABAD