ACIT, CHENNAI V. Sree Sella Infrastructure & Projects Ltd., CHENNAI

ITA 1294/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64357 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-09-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 07-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K RAVI
• Keywords: Retrospective amendment
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 1294/MDS/2011 ASSESSMENT YEAR : 2008-09 THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-VI(4), CHENNAI. V. M/S. SREE SELLA INFRASTRUCTURE & PROJECTS LTD., NO.2, GEE GEE EMERALD NO.151, VILLAGE ROAD, NUNGAMBAKKAM, CHENNAI-600 034. (PAN : AAICS5284M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHAJI P. JACOB, ADDL. CIT RESPONDENT BY : SHRI K. RAVI, ADVOCATE DATE OF HEARING : 05.09. 2012 DATE OF PRONOUNCEMENT : 28.09.2012 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- V, CHENNAI DATED 08-04-2011 FOR THE ASSESSMENT YEAR 20 08-09. ITA 1294/MDS/ 2011 2 2. FACTS IN BRIEF ARE THAT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF CONSTRUCTION OF INFRASTRUCTURE P ROJECTS. IT HAD FILED A RETURN OF INCOME FOR THE YEAR UNDER CON SIDERATION ADMITTING TOTAL INCOME AT NIL. THE ASSESSEE IN I TS RETURN OF INCOME HAD CLAIMED DEDUCTION UNDER SECTION 80-IA OF THE INCOME TAX ACT, 1961 ('THE ACT' FOR SHORT) OF AN AM OUNT OF ` 13,05,78,790/- ON THE GROUND THAT THE ASSESSEE HAS DEVELOPED WATER TREATMENT PLANT FOR CHENNAI METRO WATER SUPPL Y & SEWERAGE BOARD (CMWSSB FOR SHORT) AND OTHER SUCH EN TITIES. THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSME NT DISALLOWED THE DEDUCTION CLAIMED U/S 80-IA(4) OF TH E ACT ON THE GROUND THAT THE CONSTRUCTION OF WATER TREATMENT PLANT BY THE ASSESSEE IS A SIMPLE WORKS CONTRACT AND IF AT A LL DEDUCTION U/S 80-IA ARISES IT WOULD BE ONLY AVAILABLE FOR CMW SSB AND NOT TO THE ASSESSEE WHO IS DOING ONLY A SIMPLE WORK S CONTRACT JOB. 3. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(APPEALS). IT WAS SUBMITTED BEFORE THE LEARNED CIT(APPEALS) THAT THE ASSESSEE HAS FULFILLED ALL TH E CONDITIONS AS LAID DOWN U/S 80-IA(4) OF THE ACT AND THE ASSESS ING OFFICER WITHOUT CONSIDERING THE PROVISIONS OF SEC. 80-IA(4) SIMPLY ITA 1294/MDS/ 2011 3 REJECTED THE CLAIM OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT MERELY BECAUSE THE CONSTRUCTION CONTRACT REFER S TO THE ASSESSEE AS A CONTRACTOR OR BECAUSE OF SOME BASIC SPECIFICATIONS ARE LAID DOWN IN THE AGREEMENT, IT D OES NOT DETRACT THE ASSESSEE FROM THE POSITION OF BEING A D EVELOPER NOR WILL IT DEBAR FROM CLAIMING THE DEDUCTION U/S 8 0-IA(4) OF THE ACT. THE LEARNED CIT(APPEALS) AFTER CONSIDERIN G THE SUBMISSIONS OF THE ASSESSEE HELD AS UNDER : 6. I HAVE CONSIDERED THE ARGUMENT OF THE LEARNED AUTHORISED REPRESENTATIVE. I HAVE ALSO GONE THROUG H THE ASSESSMENT ORDERS APPEALED AGAINST AND THE VARIOUS CASE LAWS QUOTED BY THE LEARNED AUTHORISED REPRESENTATIVE. IT APPEARS THAT THE ASSESSING OFFICER HAS BEEN CAR RIED AWAY BY TWO CONSIDERATIONS VIZ., THAT THE CMWSSB HAS STATED THAT IT IS THE OWNER OF THE PROJECT AND THE APPELLA NT HAS ONLY CONSTRUCTED THE PROJECT AS PER THE CONSTRUCTION CON TRACT BETWEEN THE APPELLANT AND THE SAID CMWSSB. THE APPE LLANT HAS NOT DISPUTED EITHER OF THE TWO FACTS STATED BY THE ASSESSING OFFICER. THE MOOT QUESTION WHICH ARISES IS, WHETHER UNDER THESE FACTS AND CIRCUMSTANCES THE APPELLANT W OULD BE ELIGIBLE FOR DEDUCTION U/S 80IA. THE PROVISION OF SUB-SECTION (4) OF SECTION 80IA R EADS AS UNDER : (4) THIS SECTION APPLIES TO ITA 1294/MDS/ 2011 4 (I) ANY ENTERPRISE CARRYING ON THE BUSINESS OF (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR )(I II) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRU CTURE FACILITY WHICH FULFILS ALL THE FOLLOWING CONDITIONS , NAMELY :- (A) IT IS OWNED BY A COMPANY REGISTERED IN INDIA O R BY A CONSORTIUM OF SUCH COMPANIES OR BY AN AUTHORITY OR A BOARD OR A CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONS TITUTED UNDER ANY CENTRAL OR STATE ACT; (B) IT HAS ENTERED INTO AN AGREEMENT WITH THE CENT RAL GOVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORI TY OR ANY OTHER STATUTORY BODY FOR (I) DEVELOPING OR (II) OPE RATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAIN TAINING A NEW INFRASTRUCTURE FACILITY; (C) IT HAS STARTED OR STARTS OPERATING AND MAINTA INING THE INFRASTRUCTURE FACILITY ON OR AFTER 1-4-1995: PROVIDED***** EXPLANATION.- FOR THE PURPOSES OF THIS CLAUSE, INFRASTRUCTURE FACILITY MEANS (A) A ROAD INCLUDING TOLL ROAD, A BRIDGE OR A RAIL SYSTEM; (B) TO (D) ****** 7. THE SECTION PROVIDES FOR DEDUCTION UNDISPUTEDLY FOR ANY ENTERPRISE WHICH IS ENGAGED IN ONLY DEVELOPING THE INFRASTRUCTURE FACILITY. ACCORDING TO THE ASSESSIN G OFFICER THE APPELLANT IS NOT A DEVELOPER AND IF AT ALL SOMEBODY HAS TO BE TREATED AS A DEVELOPER IT IS CMWSSB AS PER THE ASSES SING OFFICER. IF THIS CONSTRUCTION IS TO BE ACCEPTED, T HEN THERE WILL NOT BE ANY NECESSITY FOR LEGISLATURE TO HAVE MADE A GREEMENT BETWEEN THE DEVELOPER AND THE LOCAL AUTHORITY ETC., FOR DEVELOPING THE INFRASTRUCTURE FACILITY AS ONE OF TH E CONDITIONS ITA 1294/MDS/ 2011 5 TO BE ELIGIBLE FOR DEDUCTION U/S 80IA(4). THIS CON TENTION OF THE ASSESSING OFFICER DOES NOT THEREFORE APPEAR TO BE C ORRECT. AS RIGHTLY CONTENDED BY THE LEARNED AUTHORISED REPRESE NTATIVE, THE PROVISIONS OF SECTION 80IA(4) CERTAINLY ALLOWS DEDUCTION IN RESPECT OF PROFIT DERIVED FROM DEVELOPMENT OF INFRA STRUCTURE FACILITY IN THE HANDS OF THE PERSON WHO HAS CONSTRU CTED THE INFRASTRUCTURE FACILITY AND THE PROFITS FROM OPERAT ING AND MAINTAINING THE SAID INFRASTRUCTURE FACILITY. THE BIFURCATION BETWEEN DEVELOPMENT ON THE ONE HAND AND OPERATING A ND MAINTAINING ON THE OTHER HAND BY THE LEGISLATURE AN D GRANTING DEDUCTION FOR BOTH SUCH PARTIES REVEALS THE INTENTI ON OF LAW IN PLAIN WORDS AND AS SUCH I HAVE TO NECESSARILY AGREE WITH THE ARGUMENTS OF THE LEARNED AUTHORISED REPRESENTATIVE THAT THE APPELLANT BEING THE DEVELOPER OF THE INFRASTRUCTURE FACILITY IS TO BE HELD ELIGIBLE FOR DEDUCTION U/S 80IA(4). THE OT HER FACTOR VIZ., THAT THE APPELLANT HAS ONLY EXECUTED A WORKS CONTRACT, THE APPELLANT IS JUST A CONTRACTOR WHO SIMPLY EXECUTED THE CONSTRUCTION AND THEREFORE THE APPELLANT IS PRECLUD ED FROM CLAIMING DEDUCTION U/S 80IA(4) DOES NOT ALSO APPEAR TO BE LEGALLY SUSTAINABLE. THE DECISION IN THE CASE OF PA TEL ENGINEERING LTD., CITED BY THE LEARNED AUTHORISED REPRESENTATIVE DIRECTLY SUPPORTS THE PLEA OF THE AP PELLANT. IT HAS BEEN DECIDED THAT THE CONTRACTOR IS ENTITLED TO DEDUCTION IN PARA 47 OF THE SAID DECISION WHICH IS REPRODUCED BE LOW : THERE HAS ALSO BEEN THE CONTENTION OF THE REVENUE T HAT THE ASSESSEE IS A CONTRACTOR, EXECUTING CIVIL CONTR ACT AND SO IT CANNOT BE THE DEVELOPER AS SUCH. HOWEVER, WE ARE U NABLE TO AGREE WITH THIS CONTENTION OF THE REVENUE. A PERSO N, WHO ITA 1294/MDS/ 2011 6 ENTERS INTO A CONTRACT WITH ANOTHER PERSON WILL BE A CONTRACTOR NO DOUBT; AND THE ASSESSEE HAVING ENTERED INTO AN A GREEMENT WITH THE GOVERNMENT OF MAHARASHTRA AND ALSO WITH AP SEB FOR DEVELOPMENT OF THE INFRASTRUCTURE PROJECTS, IS OBVI OUSLY A CONTRACTOR BUT THAT DOES NOT DEROGATE THE ASSESSEE FROM BEING A DEVELOPER AS WELL. THE TERM CONTRACTOR IS NOT ESSENTIALLY CONTRADICTORY TO THE TERM DEVELOPER. ON THE OTHE R HAND, RATHER SECTION 80-IA(4) ITSELF PROVIDES THAT ASSESS EE SHOULD DEVELOP THE INFRASTRUCTURE FACILITY AS PER AGREEMEN T WITH THE CENTRAL GOVERNMENT, STATE GOVERNMENT OR A LOCAL AUT HORITY. SO, ENTERING INTO A LAWFUL AGREEMENT AND THEREBY BE COMING A CONTRACTOR SHOULD, IN NO WAY, BE A BAR TO THE ONE B EING A DEVELOPER. THE ASSESSEE, PRESENTLY UNDER CONSIDERA TION BEFORE US, HAS DEVELOPMENT OF INFRASTRUCTURE FACILI TY AS PER AGREEMENT WITH MAHARASHTRA STATE GOVERNMENT/APSEB. THEREFORE, MERELY BECAUSE, THE AGREEMENT FOR DEVELO PMENT 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 D EVELOPER; NOR WILL IT DEBAR THE ASSESSEE FROM CLAIMING DEDUCT ION UNDER SECTION 80-IA(4). DISCUSSED/CONSIDERED AS ABOVE, W E HOLD THAT THE ASSESSEE HAVING CARRIED OUT THE WORK OF CO NSTRUCTING THE ABOVE MENTIONED TWO PROJECTS,.IS APPROPRIATELY A DEVELOPER OF THE SAID INFRASTRUCTURE FACILITIES, AN D IN TURN IS ENTITLED, AND ENTITLED JUSTIFIABLY, TO CLAIM DEDUCT ION UNDER SECTION 80-IA(4). THIS DECISION OF THE HONBLE ITAT MUMBAI HAS ALSO BEEN FOLLOWED IN THE CASE OF PATEL ENGINEERING LTD. VS. DCIT 94 ITD. THEREFORE I HOLD THAT THE APPELLANT IS ENTITLED FOR THE DEDUCTION U/ 80IA(4) AS CLAIMED. I DIRECT THE ASSESSING OFFI CER TO RECOMPUTE THE INCOME ALLOWING SUCH DEDUCTION. 4. ON BEING AGGRIEVED, THE REVENUE HAS CARRIED THE MATTER BEFORE US. THE LEARNED DR HAS SUBMITTED THAT THE A SSESSEE IS A WORKS CONTRACTOR. HE IS NOT ELIGIBLE FOR DEDUCTI ON UNDER ITA 1294/MDS/ 2011 7 SECTION 80-IA(4) OF THE ACT. FURTHER HE RELIED ON THE DECISION OF THE MUMBAI I BENCH OF THE TRIBUNAL IN THE CASE OF THE INDIAN HUME PIPE CO. LTD. V. DCIT (2011-TIOL-518-IT AT- MUM). 5. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE AS SESSEE HAS SUBMITTED THAT THIS CASE IS COVERED BY THE DECI SION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. ABG HEAVY INDUSTRIES LIMITED (322 ITR 323) (BOM). 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORD S AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ISSUE INVOLVED IN THIS APPEAL IS WHETHER THE ASSESSEE IS ELIGIBLE FOR THE DEDUCTION UNDER SECTION 80-IA(4) OF THE ACT OR NOT. ACCORDING TO THE ASSESSING OFFICER THE ASSESSEE COMPANY HAD CONS TRUCTED WATER TREATMENT PLANT FOR CMWSSB AND SOME PRIVATE EN TITIES AND AS PER THE CONSTRUCTION CONTRACT THE ASSESSEE HAD S IMPLY EXECUTED WORKS CONTRACT ON JOB WORK BASIS FOR CMWSS B AND THEREFORE WAS DENIED THE DEDUCTION U/S 80-IA(4) OF THE ACT. IN APPEAL THE LEARNED CIT(APPEALS) SIMPLY FOLLOWING TH E ORDER OF THE TRIBUNAL IN THE CASE OF PATEL ENGINEERING LTD. (94 ITD 141) ALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 80- IA(4) OF THE ACT. IN THE ASSESSMENT ORDER, THE ASS ESSING OFFICER ITA 1294/MDS/ 2011 8 HAS CATEGORICALLY GIVEN THE FINDING THAT THE ASSESS EE IS A WORKS CONTRACTOR AND HE HAS CONSTRUCTED THE WATER TREATME NT PLANT FOR CMWSSB ON JOB WORK BASIS. THIS FACT WAS NOT DISPUTE D BEFORE US. IT IS CLEAR FROM THE FACTS AVAILABLE ON RECORD THAT THE ASSESSEE HAS EXECUTED THE WORKS CONTRACT, I.E. WATE R TREATMENT PLANT FOR CMWSSB AND HAS CLAIMED DEDUCTION UNDER SECTION 80- IA(4) OF THE ACT. THE ASSESSEE IS UNABLE TO ESTABL ISH AS TO HOW IT HAD MADE INVESTMENT IN THE PROJECT. APART FROM THA T THE ASSESSEE IS NOT ABLE TO PROVE THAT IT HAS NOT EXECU TED THE WORK CONTRACT BY PRODUCING RELEVANT MATERIAL TO CONTRADI CT THE FINDING GIVEN BY THE ASSESSING OFFICER. WE, THEREFORE, HO LD THAT THE ASSESSEE IS A WORKS CONTRACTOR. 7. NOW THE ONLY ISSUE BEFORE US FOR CONSIDERATION I S WHETHER THE WORKS CONTRACTOR IS ELIGIBLE FOR DEDUCTION UNDE R SECTION 80- IA(4) OF THE ACT OR NOT. IT IS PERTINENT TO MENTIO N HERE THAT THE FINANCE (NO.2) ACT, 2009 ADDED AN EXPLANATION TO SU B-SECTION (13) OF SECTION 80-IA WITH RETROSPECTIVE EFFECT FRO M 1-04-2000, WHICH READS AS UNDER : EXPLANATION.- FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY IN RELATION TO A BUSINESS REFERRED TO IN SUB-SECTION (4) ITA 1294/MDS/ 2011 9 WHICH IS IN THE NATURE OF A WORKS CONTRACT AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STATE GOVERNMENT) AND EXECUTED BY THE UNDERTAKING OR ENTERPRISE REFERRED TO IN SUB-SECTION (1). 8. AS PER THE ABOVE EXPLANATION TO SUB-SECTION (13) , WORKS CONTRACTOR IS NOT ELIGIBLE FOR DEDUCTION U/S 80-IA( 4) OF THE ACT. THE VERY SAME EXPLANATION WAS CONSIDERED BY THE TRI BUNAL, I BENCH MUMBAI IN ITA NO. 5172/MUM/2008 IN THE CASE OF THE INDIAN HUME PIPE CO. LTD. V. DCIT FOR THE ASSESSMEN T YEAR 2004-05 (SUPRA) AND VIDE ORDER DATED 29-07-2010 HAS HELD AS UNDER : ++ THE LAW STANDS NOW IN THE LIGHT OF RETROSPECTIV E INSERTION OF EXPLANATION BELOW TO SECTION 80IA(13), THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 80IA (4). THIS EXPLANATION, INTRODUCED BY FINANCE ACT, 2009 WITH RETROSPECTIVE EFFECT FROM 1 ST APRIL, 2000, PROVIDES THAT (F) OR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT NOTHING CONTAINED IN THIS SECT ION (I.E. 80-IA) SHALL APPLY IN RELATION TO A BUSINESS REFERRED TO IN SUB-SECTION (4) WHICH IS IN THE NATU RE OF A WORKS CONTRACT AWARDED BY ANY PERSON (INCLUDIN G THE CENTRAL OR STATE GOVERNMENT) AND EXECUTED BY THE UNDERTAKING OR ENTERPRISE REFERRED TO IN SUB- ITA 1294/MDS/ 2011 10 SECTION (1). SUCH BEING THE LEGAL POSITION, AND T HE ASSESSEE HAVING MERELY EXECUTED THE WORKS CONTRACT FOR INFRASTRUCTURE DEVELOPMENT AS AWARDED TO HIM, WE ARE OF THE CONSIDERED VIEW THAT AUTHORITIES BELO W RIGHTLY DECLINED THE DEDUCTION U/S 80IA TO THE ASSESSEE. WE APPROVE THE CONCLUSIONS ARRIVED AT BY THE CIT(A) AND DECLINE TO INTERFERE IN THE MATTER; 9. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CA SE AND ALSO FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF T HIS TRIBUNAL IN THE CASE OF THE INDIAN HUME PIPE CO. LTD. (SUPRA), THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IA(4 ) OF THE ACT. 10. THE LEARNED CIT(APPEALS) SIMPLY FOLLOWED THE DE CISION OF THE TRIBUNAL IN THE CASE OF PATEL ENGINEERING LTD. V. DCIT (94 ITD 141), WHICH HAS BEEN FOLLOWED IN THE CASE OF AC IT V. BHARAT UDYOG LTD. (24 SOT 412) ALSO, AND ALLOWED THE APPEA L OF THE ASSESSEE IGNORING THE EXPLANATION INSERTED TO SUB-S ECTION (13) OF SECTION 80-IA BY THE FINANCE (NO.2) ACT, 2009. HOW EVER, WE FIND THAT THE ORDER OF THE TRIBUNAL IN THE CASE OF PATEL ENGINEERING LTD. V. DCIT (SUPRA) RELIED ON BY THE LEARNED CIT(A PPEALS) NO MORE HOLDS THE FIELD AS AN EXPLANATION HAS BEEN INS ERTED TO SUB- SECTION (13) OF SECTION 80-IA BY THE FINANCE (NO.2) ACT, 2009, REPRODUCED ABOVE. FURTHER, NO MATERIAL HAS BEEN BR OUGHT TO OUR ITA 1294/MDS/ 2011 11 NOTICE THAT THE ORDER OF THE MUMBAI BENCH OF THE TR IBUNAL IN THE CASE OF THE INDIAN HUME PIPE CO. LTD. (SUPRA) HAS B EEN REVERSED OR MODIFIED BY THE HONBLE HIGH COURT. TH EREFORE, IN VIEW OF THE SPECIFIC PROVISIONS OF THE ACT, I.E. TH E EXPLANATION ADDED TO SUB-SECTION (13) OF SEC. 80-IA BY THE FINA NCE (NO.2) ACT, 2009, AND ALSO THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF THE INDIAN HUME PIPE CO. LT D. (SUPRA), WE REVERSE THE ORDER PASSED BY THE LEARNED CIT(APPE ALS) AND RESTORE THE ORDER PASSED BY THE ASSESSING OFFICER. 11. INSOFAR AS THE CASE LAW RELIED ON BY THE LEARNE D COUNSEL FOR THE ASSESSEE IN THE CASE OF ABG HEAVY INDUSTRIES LIM ITED (SUPRA) IS CONCERNED, THE HONBLE BOMBAY HIGH COURT HAS NOT AT ALL CONSIDERED THE ISSUE, WHETHER WORKS CONTRACTOR IS E LIGIBLE FOR THE DEDUCTION UNDER SECTION 80-IA(4) OR NOT. THE ONLY ISSUE BEFORE THE HONBLE BOMBAY HIGH COURT WAS WHETHER THE ASSES SEE HAS TO DEVELOP THE ENTIRE PORT IN ORDER TO QUALIFY FOR DED UCTION UNDER SECTION 80-IA. THEREFORE, THE HONBLE BOMBAY HIGH C OURT NEVER DISCUSSED ANYTHING WITH REGARD TO THE WORKS CONTRAC TOR OR SUCH CONTRACTOR IS ELIGIBLE FOR THE DEDUCTION UNDER SECT ION 80-IA(4) OF THE ACT. THE CASE BEFORE THE HONBLE BOMBAY HIGH C OURT WAS THAT OF AN ASSESSEE WHO WAS A DEVELOPER AND THE ONL Y DISPUTE ITA 1294/MDS/ 2011 12 WAS WHETHER THE ASSESSEE WAS TO DEVELOP THE ENTIRE PORT OR NOT. IN THOSE CIRCUMSTANCES THE HONBLE BOMBAY HIGH COUR T HAS HELD THAT IT IS NOT NECESSARY FOR AN ASSESSEE TO DEVELOP THE ENTIRE PORT IN ORDER TO QUALIFY FOR DEDUCTION UNDER SECTION 80 -IA. THEREFORE THIS DECISION HAS NO APPLICATION TO THE FACTS OF TH E PRESENT CASE. 12. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND THE STATUTORY PROVISIONS, THE APPEAL FILED BY T HE REVENUE HAS TO BE ALLOWED AND WE DO SO. 13. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE 28 TH OF SEPTEMBER, 2012, AT CHENNAI. SD/- SD/- (ABRAHAM P. GEORGE) ( V.DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 28 TH SEPTEMBER, 2012. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE