G.J. Multiclave (india) Private Limited, Hyderabad, Hyderabad V. ITO, Ward-2(2), Hyderabad, Hyderabad

ITA 1540/HYD/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2379 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 15-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: PRATAPKARAN PA UL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B (SMC) BENCH : HYDERABAD [BEFORE SMT ASHA VIJAYARAGHAVAN, JUDICAL MEMBER ] ./I.T.A. NOS. 448 & 1540/HYD/2016 / ASSESSMENT YEARA : 2010-2011 & 2012-2013 M/S. G J MULTICLAVE (INDIA) PRIVATE LTD, NO.7-1-47/1A, DHARAM KARAM ROAD, AMERPET, HYDERABAD 500 016. [PAN AABCG 0954H] VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 2(3) HYDERABAD. ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI. PRATAPKARAN PAUL, C.A. /RESPONDENT BY : SHRI. K.J. RAO. DR /DATE OF HEARING : 11-05-2017 /DATE OF PRONOUNCEMENT : 21-06-2017 / O R D E R THESE ARE APPEALS FILED BY THE ASSESSEE ARISING O UT OF THE ORDERS PASSED BY THE CIT(A)-1, HYDERABAD, DATED 31. 12.2015 AND 28.07.2016 RESPECTIVELY CONFIRMING THE ORDERS OF TH E AO IN RELATION TO ASSESSMENT YEARS 2010-2011 AND 2012-2013. 2. FIRST I TAKE UP ITA NO.448/HYD/2016 FOR THE ASSESSM ENT YEAR 2010-2011 FOR BREVITY. BRIEF FACTS OF THE FACTS ARE THAT THE ASSESSEE IS A PRIVATE LIMITED INCORPORATED UNDER THE COMPANIES ACT,1956 AND IS CARRYING ON THE BUSINESS OF HANDLING AND TREATMENT AND DISPOSAL OF THE BIO-MEDICAL WASTE (HAZARDOUS WASTE). THE ASSESSE E HAD FILED ITA NOS.448 & 1540/HYD/2016 :- 2 - : ITS RETURN OF INCOME FOR THE ASST. YEAR 2010-11, TH ROUGH ELECTRONIC FILING ON 13.10.2010 DECLARING A TOTAL INCOME OF RS .198,20,703/- BEFORE CLAIMING DEDUCTION U/S 80-IA OF THE INCOME T AX ACT, 1961 (IN SHORT THE ACT) AND NIL INCOME AFTER CLAIMIN G DEDUCTION U/S 80-LA ACT UNDER NORMAL PROVISIONS AND MAT INCOME OF RS.1,84,42,117/-, AND THE RETURN WAS PROCESSED U/S 143(1) OF INCOME TAX ACT, 1961. THE ASSESSEE'S CASE WAS SELEC TED FOR SCRUTINY UNDER CASS, AND NOTICE U/S 143(2) OF THE A CT WAS ISSUED AND SERVED ON THE ASSESSE BY THE THEN THE ASSESSING OFFICER AS THERE WAS A CHANGE IN INCUMBENT OFFICER AND HE HAD ISSUED NOTICE U/S 143(2) OF THE ACT. SUBSEQUENTLY THE ASSESSING O FFICER PASSED AN ORDER U/S.143(3) OF THE ACT, BY ASSESSING AN INC OME OF RS.25,68,140/- UNDER THE HEAD INCOME FROM BUSINESS, THUS MAKING AN ADDITION OF RS.25,68,140/- ALLEQEDLV THAT WHILE COMPUTING THE DEDUCTION U/S 80-1A, THE ASSESSING OFFICER HAD NOT ALLOWED THE DEDUCTION FOR KERALA UNIT SITUA TED AT PALAKKAD. 3. THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS SUBMITTED THAT THE ASSESSING OFFICER IGNORED THE E XPLANATION OF THE ASSESSEE AND, PASSED THE ORDER BY STATING THAT APPROVAL ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD IS NOT IN ASSESSE'S NAME. DEDUCTION U/S 80-LA OF THE ACT IS APPLICABLE TO AN ENTERPRISE WHO HAS ENTERED INTO AN AGREEMENT WITH THE ITA NOS.448 & 1540/HYD/2016 :- 3 - : CENTRAL/STATE GOVERNMENT, LOCAL AUTHORITY OR ANY OT HER STATUTORY BODY FOR DEVELOPING INFRASTRUCTURE FACILITY WHICH I NCLUDES SOILED WASTE MANAGEMENT SYSTEM. THE ASSESSEE HAD ENTERED I NTO AN AGREEMENT WITH THE INDIAN MEDICAL ASSOCIATE (LMA) K ERALA STATE BRANCH A SOCIETY REGISTRATION ACT, 12 OF 1955 AS NO . T.1119/10, HAVING ITS HEADQUARTERS AT ANAYARA THIRUVANANTHAPUR AM- (IMAGE), THE MAIN OBJECTIVE OF THE ASSOCIATION IS THE ASSOCI ATION OF PRACTITIONERS OF MODERN MEDICINE REGISTERED UNDER SOCIETIES ACT O N THE LARGER INTEREST OF PUBLIC HEALTH HAS SET UP AND OPERATES C OMPOSITE BIO- MEDICAL WASTE MANAGEMENT SYSTEM TO DISPOSE THE WAST E GENERATED BY AFFILIATED HOSPITALS IN THE STATE OF KERALA AND HAS ORGANIZED A SCHEME KNOWN AS IMAGE (IMA GOES ECO FRIENDLY) AS PER THE S TANDARDS LATE DOWN MY MINISTRY OF ENVIRONMENT AND FORESTS, GOVERN MENT OF INDIA VIDE ENVIRONMENT (PROTECTION) ACT,1986 (29 OF 1986) AND THE BIO- MEDICAL WASTE (MANAGEMENT & HANDLING.) RULES 1998 AND AS AMENDED TO DATE FOR THIS PURPOSE. THE AGREEMENT ,WITH THE A SSESSEE IS COMES UNDER THE CATEGORY OF 'ANY OTHER STATUTORY BODY. 4. HOWEVER, THE LD. ASSESSING OFFICER WHILE COMPUTING DEDUCTION U/S. 80IA OF THE ACT DID NOT ALLOW DEDUCT ION U/S. 80IA OF THE ACT FOR KERALA UNIT SITUATED AT PALLAKAD. ITA NOS.448 & 1540/HYD/2016 :- 4 - : 5. AGGRIEVED, ASSESSEE FILED AN APPEAL BEFORE LD. COM MISSIONER OF INCOME TAX (APPEALS). AS PER LD. COMMISSIONER OF INCOME TAX (APPEALS), THE LD. ASSESSING OFFICER OBSERVED THAT THE ASSESSEE COMPANY HAS SET UP COMMON TREATMENT AND DISPOSAL FA CILITY FOR HANDING BIO-MEDICAL/HAZARDOUS WASTES GENERATED FROM VARIOUS HEALTH CARE ESTABLISHMENTS. THE COMPANY IS HANDLING PROJEC TS AT THREE LOCATION/SITES VIZ., THENMELPAKKAM VILLAGE, CL7ENGA LPATTU TALUK, KANCHEEPURAM DISTRICT, TAMIL NADU, EDUPA//Y VILLAGE , MAHABOOBNAGAR DISTRICT, ANDHRA PRADESH, AND MANTHURUTHY, KANJIKOD E, PALLAKAD DISTRICT, KERA/A. DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, THE DEDUCTION CLAIMED BY THE ASSESSEE-COMPANY U/S.80 LA OF 1. T. ACT, HAS BEEN VERIFIED. VIDE ORDER SHEET NOTING DATED 11 .12.2012 THE, ASSESSEE COMPANY WAS ASKED TO PRODUCE COPIES OF AGR EEMENT ENTERED INTO WITH CENTRAL/STATE GOVERNMENT OR A LOCAL AUTHO RITY OR ANY OTHER STATUTORY BODY FOR DEVELOPING, MAINTAINING AND OPER ATING A NEW INFRASTRUCTURE FACILITY FOR ALLOWING THE CLAIM OF DEDUCTION U/S.80IA OF THE ACT. IN RESPONSE, THE ASSESSEE COMPANY FILED CO PIES OF APPROVALS ISSUED BY THE POLLUTION CONTROL BOARD OF ANDHRA PRA DESH, TAMILNADU AND KERALA GOVERNNMENT(S). ON PERUSAL OF THE SAME, IT IS OBSERVED THAT WITH REGARD TO TAMILNADU AND ANDHRA PRADESH SI TE(S), THE, COMPANY HAS BEEN ACCORDED APPROVAL BY THE TAMILNADU / ANDHRA PRADESH POLLUTION CONTROL BOARD TO OPERATE A FACILI TY FOR COLLECTION, ITA NOS.448 & 1540/HYD/2016 :- 5 - : RECEPTION, STORAGE, TRANSPORT AND DISPOSAL OF BIOME DICAL WASTE. WITH - REGARD TO THE KERALA SITE, THE ASSESSEE COMPANY HAS FILED AN APPROVAL ISSUED BY THE POLLUTION CONTROL BOARD OF KERALA, WH ICH IS NOT IN THE NAME OF THE ASSESSEE COMPANY. ACCORDINGLY, THE ASSE SSEE COMPANY VIDE ORDER SHEET NOTING DATED 8.01.2013 WAS INFORMED BY LD. ASSESSING OFFICER THAT SINCE THE APPROVAL ISSUED B Y THE KERALA STATE POLLUTION CONTROL BOARD S NOT IN ITS NAME, THE ASSESSEE IS NOT ELIGIBLE FOR CLAIM U/S.80IA ON THE PROFITS DERIVED FROM KERALA U NIT. THE LD. ASSESSING OFFICER FURTHER HELD THAT THE ASSESSEE H AS NO EXPLANATION TO OFFER IN THIS REGARD. THE LD. ASSESSING OFFICER CONCLUDED THAT S ECTION 80LA IS APPLICABLE TO AN ENTERPRISE WHO HAS ENTERED INTO AN AGREEMENT WITH THE CENTRAL/STATE GOVERNMENT, LOCAL AUTHORITY OR ANY OTHER STATUTORY BODY FOR DEVELOPING INFRASTRUCTURE FACILI TY WHICH INCLUDES SOLID WASTE MANAGEMENT SYSTEM. IN THIS CASE, THE AS SESSEE HAS NOT ENTERED INTO AN AGREEMENT DOES NOT HAVE APPROVAL FR OM KERALA STATE POLLUTION CONTROL TO OPERATE A FACILITY FOR COLLECT ION, RECEPTION, STORAGE, TRANSPORT AND DISPOSAL OF BIOMEDICAL WASTE. IN VIEW OF THE ABOVE, THE EXEMPTION CLAIMED U/S. 80IA OF THE INCOME TAX AC T, 1961, IS NOT ALLOWED IN RESPECT OF PROFITS DERIVED FROM KERALA U NIT TO THE TUNE OF RS.24,00,133/-. 6. ON THE OTHER HAND, LD. AUTHORISED REPRESENTATIVE SU BMITTED BEFORE LD. COMMISSIONER OF INCOME TAX (APPEALS) AS UNDER:- ITA NOS.448 & 1540/HYD/2016 :- 6 - : T HE ASSESSING OFFICER ERRED IN DISALLOWING THE DEDUCTION U/S 80-IA OF THE ACT FOR THE ASSESSMENT YEAR 2010-11 FOR THE KERALA PALKKAD UNIT. UNDER SECTION 80-IA OF THE INCOME TAX ACT,1961, DEDUCTIONS IN RESPECT OF PROFITS AND GAINS FROM INDUSTRIAL UNDERTAKINGS OR ENTERPRISES ENGAGED IN INFRASTRUCTURE DEVELOPMENTS, ETC., WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE INCLUDES ANY PROFITS AND GAINS DERIVED BY AN UNDERTAKING OR AN ENTERPRISES FROM ANY BUSINESS REFERRED TO IN SUB- SECTION (4) (SUCH BUSINESS, BEING HEREINAFTER REFERRED TO AS THE ELIGIBLE BUSINESS), THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, BE ALLOWED, IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, A DEDUCTION OF AN AMOUNT EQUAL TO HUNDRED PER CENT OF PROFITS AND GAINS DERIVED FROM SUCH BUSINESS FOR TEN CONSECUTIVE ASSESSMENT YEARS. UNDER SECTION 80-LA OF THE INCOME TAX ACT,1961, SUB-SECTION (3) APPLIES TO [AN UNDERTAKING REFERRED TO IN [CLAUSE(II) OR] CLAUSE(I V) OF SUB-SECTION (4)] WHICH FULFILS ALL THE FOLLOWING CONDITIONS, NAMELY, IT IS NOT FORMED BY SPLITTING U P, OR THE RECONSTRUCTION, OF A BUSINESS ALREADY IN EXISTENCE, PROVIDED THAT THIS CONDITION SHALL NOT APPLY IN RESPECT OF AN UNDERTAKING WHICH IS FORMED AS A RESULT OF THE RE-ESTABLISHMENT, RECONSTRUCTION OR REVIVAL BY THE ASSESSEE OF THE BUSINESS OF ANY SUCH UNDERTAKING AS IS REFERRED TO IN SECTION 33B, IN THE CIRCUMSTANCES AND WITHIN THE PERIOD SPECIFIED IN THAT SECTION. IT IS NOT FORMED BY THE TRANSFER TO A NEW BUSINESS OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE; UNDER SECTION 80- LA OF THE INCOME TAX ACT,1961, SUB-SECTION (4) APPLIES TO ANY ENTERPRISES CARRYING ON THE BUSINESS [OF (I) DEVELOPING OR (II) OPERATING AND MAINTAININ G OR (III) DEVELOPING, OPERATING AND MAINTAINING] ANY INFRASTRUCTURE FACILITY WHICH FULFILS ALL THE FOLLO WING CONDITIONS, NAMELY: A). IT IS OWNED BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM OF SUCH COMPANIES [OR BY AN AUTHORITY OR A BOARD OR A CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONSTITUTED UNDER ANY CENTRAL OR STATE ACT B). IT HAS ENTERED INTO AN AGREEMENT WITH THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT OR A LOCAL ITA NOS.448 & 1540/HYD/2016 :- 7 - : AUTHORITY OR ANY OTHER STATUTORY BODY FOR (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (II I) DEVELOPING, OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY; C). IT HAS STARTED OR STAR TS OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILI TY ON OR AFTER THE 1ST DAY OF APRIL,1995: [EXPLANATION - FOR THE PURPOSES OF THIS CLAUSE, 'INFRASTRUCTURE FACILITY' MEANS: (A). A ROAD INCLUDING TOLL ROAD, A BRIDGE OR A RAIL SYSTEM; (B). A HIGHWAY PROJECT INCLUDING HOUSING OR OTHER ACTIVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT; (C). A WATER SUPPLY PROJECT, WATER TREATMENT SYSTEM, IRRIGATION PROJECT, WATER TREATMENT SYSTEM, IRRIGATION PROJECT, SANITATION AND SEWERAGE SYSTEM OR SOLID WASTE MANAGEMENT SYSTEM;] THE ASSESSE MADE AN AGREEMENT ON 1ST NOVEMBER,200B WITH THE INDIAN MEDICAL ASSOCIATE (IMA) KERALA STATE BRANCH A SOCIE TY REGISTRATION ACT, 12 OF 1955 AS NO. T.1119/10 HAVING ITS HEADQUARTERS AT ANAYARA THIRUVANANTHAPURAM (IMAGE) THE MAIN OBJECTIVE OF THE ASSOCIATION IS TH E ASSOCIATION OF PRACTITIONERS OF MODERN MEDICINE REGISTERED UNDER SOCIETIES ACT ON THE LARGER INTEREST OF PUBLIC HEALTH HAS SET UP AND OPERATES COMPOSITE BIO- MEDICAL WASTE MANAGEMENT SYSTEM TO DISPOSE THE WASTE GENERATED BY AFFILIATED HOSPITALS IN THE STATE OF KERALA AND HAS ORGANIZED A SCHEME KNOWN AS IMAGE (IMA) GOES ECO FRIENDLY) AS PER THE STANDARDS LAID DOWN BY MINISTRY OF ENVIRONMENT AND FORESTS, GOVERNMENT OF INDIA VIDE ENVIRONMENT (PROTECTION) ACT,1986 (29 OF 1986) AND THE BIO-MEDICAL WASTE (MANAGEMENT & HANDLING) RULES 1998 AND AS AMENDED TO DATE FOR THIS PURPOSE. THE AGREEMENT WITH THE ASSESSEE IS COMES UNDER THE CATEGORY OF 'ANY OTHER STATUTORY BODY'. T HE COMPANY HAS BEEN ACCORDED APPROVAL BY THE TAMILNADU AND ANDHRA PRADESH KERALA POLLUTION CONTROL BOARD TO OPERATE A FACILITY FOR COLLECTION, RECEPTION, STORAGE, TRANSPORT AND DISPOSAL OF THE B IO- MEDICAL WASTE. THE COMPANY HAD GOT APPROVAL FOR KERALA UNIT THROUGH IMAGE. IMAGE HAS OPTED THE ASSESSEE TO CONTINUE TO OPERATE AND MAINTAIN ITS BI O- MEDICAL WASTE COMMON TREATMENT FACILITIES SITUATED AT PALAKKAD. THE IMAGE WAS FORMED WITH AN OBJECT TO OBTAIN A CONTRACT FROM KERALA STATE POLLUTION ITA NOS.448 & 1540/HYD/2016 :- 8 - : CONTROL BOARD, BUT IN TEE: THE WORK WAS EXECUTED BY THE ASSESSEE, THEREFORE DEDUCTION HAD TO BE ALLOWED TO THOSE ENTERPRISE, WHICH WAS ENGAGED IN BUSINESS OF DEVELOPING, MAINTAINING AND OPERATING ANY INFRASTRUCTURE FACILITY. THEREFORE THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION ON PROFIT EARNED FROM THE AFORESAID ACTIVITY. THE IMAGE HAD NOT CLAIM ANY DEDUCTION U/S 80-IA OF THE ACT. THE DEDUCTION U/S. 80IA OF THE ACT WAS TO BE ALLOWED TO THOSE ENTERPRISE WHICH WERE CARRYING ON THE BUSINESS OF DEVELOPING, MAINTAINING AND OPERATING ANY INFRASTRUCTURE FACILITY. THEREFORE, IN ALL PRACTICA L PURPOSE, THE CONTRACT WAS AWARDED TO THE ASSESSEE THROUGH IMAGE. AS PER THE PROVISIONS OF SECTION 80- IA( 4), THE BENEFIT OF DEDUCTION UNDER THIS SECTION IS TO BE GIVEN ONLY TO THE ENTERPRISE WHICH CARRIED ON THE CLASSIFIED BUSINESS. THEREFORE, IN THE LIGHT OF THIS LEGAL PROPOSITION. THE LD. COUNSEL FOR ASSESSEE ARG UED THAT THE ASSESSEE IS ENTITLED FOR THE DEDUCTIONS U /S 80-IA(4) ON THE PROFIT EARNED FROM THE EXECUTION OF THE WORK AND THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE ,THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN DISALLOWING THE DEDUCTION U/S 80- LA OF THE INCOME TAX ACT 1961,FOR THE KERALA PALKKAD UNIT. THE LD. COUNSEL PLEADED TH AT THE ASSESSING OFFICER IGNORED THE EXPLANATION OF TH E APPELLANT AND PASSED THE ORDER WITHOUT ANY BASIS BY DISALLOWING THE DEDUCTION. 7. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON PER USAL OF THE OBSERVATIONS OF THE LD. ASSESSING OFFICER AND C ONTENTION OF LD. AUTHORISED REPRESENTATIVE STATED THAT ASSESSEE HAS NOT FULFILLED THE CONDITIONS LAID DOWN FOR CLAIMING DEDUCTION U/S.80I A( 4), AS THE ASSESSEE HAS NOT ENTERED INTO AN AGREEMENT AND DOES NOT HAVE APPROVAL FROM KERALA POLLUTION CONTROL BOARD TO OPE RATE A FACILITY FOR COLLECTION, RECEPTION, STORAGE, TRANSPORT AND DISPO SAL OF THE BIO-MEDICAL ITA NOS.448 & 1540/HYD/2016 :- 9 - : WASTE. SECTION 80LA IS APPLICABLE TO AN ENTERPRISE WHICH HAS ENTERED INTO AN AGREEMENT WITH THE CENTRAL OR STATE GOVERNM ENT, LOCAL AUTHORITY OR ANY OTHER STATUTORY BODY FOR DEVELOPIN G INFRASTRUCTURE FACILITY WHICH INCLUDES SOLID WASTE MANAGEMENT SYST EM. IN THE ABSENCE OF SUCH APPROVAL, THE DEDUCTION CLAIMED U/S .80IA IS NOT ALLOWED IN RESPECT OF PROFIT OF 24,00,133/- DERIVE D FROM THE KERALA UNIT. HENCE, THE LD. COMMISSIONER OF INCOME TAX (AP PEALS) DISMISSED THE GROUNDS OF THE ASSESSEE. 8. NOW BEFORE ME, LD. AUTHORISED REPRESENTATIVE SUBMIT TED THAT THE THE COMMISSIONER OF INCOME TAX (APPEALS) E RRED IN DENYING THE DEDUCTION U/S. 80-IA OF THE INCOME TAX ACT 1961 AS CLAIMED BY THE ASSESSEE BY UPHOLDING THE DECISION OF ASSESSIN G OFFICER IN THIS PARTICULAR ISSUE. THE COMMISSIONER OF INCOME TAX (A PPEALS) FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAS SATISFIE D ALL THE CONDITIONS STIPULATED IN SUB-SECTION (4) OF SECTION 80-IA AND IS ELIGIBLE TO CLAIM THE DEDUCTION U/S.80-IA. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THE FACT THAT THE ASSESSE E COMPANY HAD GOT APPROVAL FROM KERALA POLLUTION CONTROL BOARD TO OPERATE FACILITY FOR COLLECTION, RECEPTION, STORAGE, TRANSPORT AND DISPO SAL OF THE BIOMEDICAL WASTE THROUGH IMAGE, A SCHEME ORGANIZED BY INDIAN M EDICAL ASSOCIATE WITH WHICH THE ASSESSEE HAS ENTERED INTO AGREEMENT VIDE AGREEMENT DATED 01-11-2008. THE COMMISSIONER OF INC OME TAX ITA NOS.448 & 1540/HYD/2016 :- 10 - : (APPEALS) HAS NOT UNDERSTOOD THE SIGNIFICANCE OF WO RD 'OR' IN SECTION 80-IA(4)(I) FROM WHICH THE INTENT OF LEGISLATURE WO ULD BE EVIDENT THAT THE DEDUCTION IS AVAILABLE LA ANY ENTERPRISE CARRYING ON BUSINESS OF (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRUCTURE FACILI TY . THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPR ECIATE THE FACT THAT THE ENTERPRISE WHICH IS DEVELOPING OR CONSTRUC TING THE INFRASTRUCTURE FACILITY IS TO BE OWNED BY A COMPANY REGISTERED IN INDIA OR CONSORTIUM OF SUCH COMPANIES. THE COMMISSIONER O F INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THE FACT THAT T HE SCHEME IMAGE WAS FORMED ONLY WITH AN OBJECT TO OBTAIN A CONTRACT FROM KERALA STATE POLLUTION CONTROL BOARD BUT THE ACTUAL WORK WAS EXE CUTED BY ASSESSEE AND THEREFORE THE ASSESSEE COMPANY AUTOMATICALLY B ECOMES ELIGIBLE FOR CLAIMING DEDUCTION UNDER SECTION 80 IA. THE COM MISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THE FACT THAT THE IMAGE DID NOT CLAIM ANY DEDUCTION UNDER SECTION 80IA. THE CO MMISSIONER OF INCOME TAX (APPEALS) HAS NOT CONSIDERED THE SUBMISS ION MADE BY THE ASSESSEE WITH RESPECT TO PALAKKAD KERALA UNIT AND M ECHANICALLY DENIED DEDUCTION UNDER SECTION 801A. LD. COUNSEL FOR THE ASSESSEE FILED A PAPER BOOK BEFORE ME, AND CONTENDED THAT THE ADDI TIONAL EVIDENCE FILED IN THE PAPER BOOK COULD EXPLAIN THE ASSESSEE S CASE AND THUS ELIGIBLE FOR DEDUCTION U/S. 80-IA OF THE ACT. PAPER S 1 TO 62 OF THE ITA NOS.448 & 1540/HYD/2016 :- 11 - : PAPER BOOK CONTAIN THE FOLLOWING THE DOCUMENTS ARE ILLUSTRATED HEREUNDER:- SL.NO PARTICULARS PAGE N OS 1 COPY OF CONSENT TO OPERATE, ISSUED BY KERALA STATE POLLUTION CONTROL BOARD ON 10/03/2016 UNDER FILE NO.PCB/HO/PLKD/ICO/62/08 TO IMAGE 1 - 6 2 COPY OF AUTHORISAT ION ISSUED BY KERALA STATE POLLUTION CONTROL BOARD UNDER FILE NO.PCB/HO/PLKD/15396/2009 TO IMAGE 7 - 14 3 COPY OF AGREEMENT BETWEEN THE INDIAN MEDICAL ASSOCIATION (IMA) AND G.] MULTICLAVE (INDIA) PVT.LTD ENTERED INTO ON 20 TH APRIL, 2003 15 - 21 4 COPY OF AGREEMENT BETWEEN THE INDIAN MEDICAL ASSOCIATION (IMA) AND G.J MULTICLAVE (INDIA) PVT.LTD ENTERED INTO ON 1 ST NOVEMBER, 2008 22 - 27 5 COPY OF AGREEMENT BETWEEN THE INDIAN MEDICAL ASSOCIATION (IMA) AND G.J MULTICLAVE (INDIA) PVT.LTD ENTERED INTO ON 1 ST NOVEMBER, 2012 28 - 32 6 LIST OF VEHICLES USED FOR BIO MEDICAL WASTE COLLECTION AND COPIES OF CERTIFICATES OF REGISTRATION OF VEHICLES USED FOR OPERATION 33 - 53 7 COPY OF PAN CARD OF IMAGE 54 8 DETAILS ABOUT IMAGE & LIST OF OFFICE BEARERS OF IMAGE 55 - 58 9 PAPER PRESENTATION ON BIO MEDICAL WASTE MANAGEMENT IN KERALA PUBLISHED IN CLEAN INDIA JOURNAL 59 - 62 FURTHER, ASSESSEE ALSO FILED THE CASE LAWS ON SIMIL AR ISSUES WHICH ARE AS UNDER:- ITA NOS.448 & 1540/HYD/2016 :- 12 - : SL.NO PARTICULARS PAGE NOS. 1 HYDERABAD MENZIES AIR CARGO P. LTD VS. DCIT, IN ITA NO.421, 422 & 423/HYD/2015 1 - 9 2 OCEAN SPARKLE LTD VS. DCIT (2006) 99 TTJ HYD 582 10 - 30 3 DCIT VS. SUSHEE INFRA PRIVATE LIMITED IN ITA NO.1828/HYD/2014 31 - 46 4 RAMKY INFRASTRUCTURE LTD VS. DCIT IN ITA NO.472/HYD/2009 47 - 65 5 ACIT VS. R.R. CONSTRUCTIONS IN ITANO.2061/MDS/2010 66 - 76 AND PRAYED FOR ALLOWING THE APPEAL. 9. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE STRONG LY SUPPORTED THE ORDERS OF THE LD. ASSESSING OFFICER AND LD. COMMISSIONER OF INCOME TAX (APPEALS). 10. I HAVE PERUSED THE ORDERS AND HEARD THE RIVAL CONTE NTIONS. IN MY OPINION IT IS APPROPRIATE TO REMIT THE ENTIRE ISSUE BACK TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE ISSUE AFRESH AFTER CONSIDERING THE CONTRACT DOCUMENTS AS A WHOLE AND A LL OTHER EVIDENCE ITA NOS.448 & 1540/HYD/2016 :- 13 - : THAT MAY BE SUBMITTED BY THE ASSESSEE TO DEMONSTRAT E THE FACTS THAT ACTUAL WORK WAS EXECUTED BY THE ASSESSEE AND IMAGE DID NOT CLAIM ANY DEDUCTION U/S. 80IA OF THE ACT. I SET ASIDE T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND DIRECT THE LD. ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH AFTER CONSIDERI NG THE RATIO LAID DOWN IN THE LIST OF CASES AT PARA 6 HEREIN ABOVE. NEED LESS TO MENTION THAT LD. ASSESSING OFFICER SHALL AFFORD REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSE. 11. IDENTICAL ISSUE IS ALSO INVOLVED IN ITA NO.1540/HYD /2016 FOR THE ASSESSMENT YEAR 2012-2013 IS ALSO ALLOWED FOR S TATISTICAL PURPOSE. 12. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 21 ST DAY OF JUNE, 2017, AT HYDERABAD. SD/- (ASHA VIJAYARAGHAVAN) / JUDICIAL MEMBER HYDERABAD / DATED: 21 ST JUNE, 2017 KV ! / COPY TO: 1 . / APPELLANT 3. ' ( ) / CIT(A) 5. / DR 2. / RESPONDENT 4. ' / CIT 6. / GF