Deputy Commissioner of Income-tax, V. M/s. Parwani Builders P Ltd., Pune

ITA 2206/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0472 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 10-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Assessee Lawyers: V S RAWAT
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 2206/PN/2014 %' ( ')( / ASSESSMENT YEAR : 2011-12 DY.CIT, CIRCLE 4, PUNE .. / APPELLANT ' / VS. M/S. PARWANI BUILDERS PVT. LTD., SHOP NO. 211/ 212, 2 ND FLOOR, CITY POINT, 17 BOAT CLUB ROAD, PUNE 411001 .. /RESPONDENT PAN NO.AACCP9869P ASSESSEE BY : SHRI V.S. RAWAT DEPARTMENT BY : SHRI HITENDRA NINAWE / DATE OF HEARING : 08-11-2016 / DATE OF PRONOUNCEMENT : 10-11-2016 * /ORDER PER VIKAS AWASTHY, JM : 1. THE PRESENT APPEAL HAS BEEN FILED BY THE DEPARTMENT A GAINST THE ORDER OF COMMISSIONER OF INCOME TAX APPEALS, PUNE II DATED 30 .09.2014 FOR THE AY 2011 12. THE REVENUE HAS ASSAILED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN ALLOWING DEDUCTION U/ S 80IA(4) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT ). ITA NO. 2206/ PN/2014, A.Y. 2011-12 2 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM THE RECO RDS ARE: THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF DEVELOPING INFRASTRUCTURAL FACILITIES, I.E. CONSTRUCTION OF DAMS, TUNNELS, ROA DS ETC. DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDE R APPEAL, THE ASSESSEE IN ITS RETURN OF INCOME CLAIMED DEDUCTION U/S 80I A(4). THE ASSESSING OFFICER DIS-ALLOWED THE SAME ON THE GROUND THAT ASSESSEE IS NOT A DEVELOPER AND HAD EXECUTED THE WORK ON PROJECT S AS CONTRACTOR OR SUB-CONTRACTOR. THE GOVERNMENT DEPARTMENTS HAD AWAR DED WORKS CONTRACT TO THE ASSESSEE. THE ASSESSING OFFICER ACCORDIN GLY DIS-ALLOWED THE CLAIM OF DEDUCTION RS.46,10,098/- U/S 80IA(4) OF THE ACT. AGGRIEVED BY THE ASSESSMENT ORDER DATED 18.03.2014, THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A). THE CIT(A) BY FOLLOWIN G THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ABG H EAVY INDUSRIES LTD REPORTED AS 322 ITR 323 AND THE SUBSEQUENT DECIS ION OF TRIBUNAL IN THE CASE OF BT PATIL & SONS, BELGAM CONSTRUCTIONS PVT. L TD., VS. ACIT ALLOWED THE CLAIM OF ASSESSEE. NOW THE DEPARTMENT IS IN APPEAL BEFORE THE TRIBUNAL ASSAILI NG THE FINDINGS OF CIT(A). 3. SHRI V.S.RAWAT APPEARING ON BEHALF OF THE ASSESSEE SUBMIT TED AT THE OUTSET THAT THE ISSUE RAISED IN APPEAL IS SQUARELY COVER ED BY THE DECISION OF CO-ORDINATE BENCH IN ASSESSEES OWN CASE FOR THE IMM EDIATELY PRECEDING ASSESSMENT YEAR. THE LD.AR PLACED ON RECORD A COPY OF ORDER OF THE TRIBUNAL IN ITA NO.1819/PN/2013 FOR ASSESSMENT 20 10 11 DECIDED ON 17.09.2014. 4. ON THE OTHER HAND, SHRI HITENDRA NINAWE REPRESENTING T HE DEPARTMENT STRONGLY DEFENDED THE ASSESSMENT ORDER. T HE LD.DR SUBMITTED THAT THE ASSESSEE IS NOT A DEVELOPER, BUT HAS UNDERTAKEN ITA NO. 2206/ PN/2014, A.Y. 2011-12 3 WORKS CONTRACT FROM VARIOUS GOVERNMENT DEPARTMENTS. H OWEVER, THE LD.DR FAIRLY ADMITTED THAT THE ISSUE RAISED BY THE DEPAR TMENT IN APPEAL HAS BEEN CONSIDERED BY THE CO-ORDINATE BENCH OF THE TR IBUNAL IN APPEAL FILED BY THE DEPARTMENT IN THE CASE OF PRESENT ASSESSEE IN ASSESSMENT YEAR 2010 11. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENT ATIVES OF RIVAL SIDES AND HAVE PERUSED ORDERS OF THE AUTHORITIES BELOW. THE DEPARTMENT HAS RAISED FOLLOWING GROUNDS IN APPEAL. 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) ERRED IN . ALLOWING DEDUCTION U/S.80IA(4) OF THE INCOME TAX ACT , 1961. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN HOLDING THAT THE ASSESSEE WAS A DEVELOPER WITHIN THE MEANING OF SUB SEC. (4) OF S ECTION 80IA OF THE ACT AND NOT A CONTRACTOR, AS HAD BEEN HELD BY THE ASSESSING OFF I CER, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD MERELY CA R RIED OUT SOME OF THE WORK CONTRACTS AWARDED TO IT B Y CONTRACTING AUTHORITIES. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FAILING TO APP R ECIATE THAT AS PE R THE AGREEMENT, THE ASSESSEE WAS UNDER THE DIRECT CO N T ROL & SUPERVISION O F THE CONTRACTING AUTHORITY AND THAT IT HAD NO FREEDOM WH ATSOEVER TO DEVELOP, DESIGN OR MODIFY THE WORK PLAN AND WAS BOUND TO ACCEPT ANY MODIFICAT IONS AS WOULD BE ISSUED BY THE CONTRACTING AUTHORI T Y. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN FAILING TO APPR E CIATE THAT IN THE AGREEMENTS ENTERED INTO BY THE ASSESSEE WITH VA RIOUS . AUTHORITIES , THE ASSESSEE HAD BEEN CATEGORICALLY TERMED AS A 'CONTRACTOR WHO HAS ENTER ED INTO A CONTRACT AND WOULD EXECUTE THE WORK IN ACCORDANCE WITH THE C ONT R ACT' AND NOT AS A ' DEVELOPER' . 5. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN FAILING ' TO APPRECIATE THAT EXPLANATION TO SUB SECTION (13) OF SECTION 80IA HAS MADE I T AMPLY DEAR THAT THE DEDUCTION ADMISSIBLE U/S.80IA(4) WOULD NOT BE APPL I CABLE TO A BUSINESS WHICH IS IN THE NATURE OF WO R KS CONTRACT AWARDED BY ANY PERSON INCLUDING THE CENTRA L OR STATE GOVERNMENT AND EXECUTED BY THE UNDERTAKING OR ENTERPRISES REFERRED TO IN SUB S ECTION (1) AND IN THE GI V E N FACTS IF CIRCUMSTANCES OF THE CASE THE ASSESSEE WAS CERTAINLY A CONT R ACTOR AND NOT A DEVELOPER. 6. THE LEARNED COMMISSIONER OF INCOME-TA X ( APPE A LS) ERRED IN NOT A PP RE CIATING THE CONCEPT OF ' DEVELOPING' AND IN EQUATING THE SAME WITH 'CONTRACTING' AND IN HOLDING THAT EXPLANATION TO SUB SECTION (13) OF SECTION 8OI A WOULD APPLY TO A SUB-CONTRACTOR AND NOT TO A CONT RACTOR . 7. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) : ERRED IN NOT APPRECIATING THE FACT THAT THE CONTRACTEE AGENCIES HAD DEDUCTED TAX AT SOURCES U/S.194C FROM THE PAYMENTS MADE TO THE ASSESSEE WHICH SUBSTANTIATES THE CONTRACTOR- CONTRACTEE RELATIONSHIP BETWEEN THE ASSESSEE AND THE DEVELOPING AGENCIES . 8. THE LD. CIT( A) ERRED IN IGNORING THE . CLARIFICATORY AMENDMENT BROUGHT IN THE STATUTE RELATING TO THIS DEDUCTION THROUGH THE INSERTION OF AN EXPLANATION MADE EFFECTIVE ' FROM 0 1/04 / 2000 THAT THIS DEDUCTION IS NOT EXECUTING CONTRACTOR OF ELIGI BLE PROJECTS. 9. THE LD. CIT(A} BY IGNORING THE .OPERATIONS OF NE WLY INSERTED EXPLANATION ERRED IN ACKNOWLEDGING THE SUPREMACY OF THE LEGISLATIVE POWE RS OF THE PARLIAMENT, OVER THE MANDATE ITA NO. 2206/ PN/2014, A.Y. 2011-12 4 OF JUDICIARY, EVEN WHEN THE LEGISLATION IN QUESTION HAS NOT BEEN DECLARED AS CONSTITUTIONALLY ULTRA VIRES. 10. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AME ND ANY OR ALL THE GROUNDS OF APPEAL. 6. WE FIND THAT IDENTICAL GROUNDS WERE RAISED BY THE DEPAR TMENT IN ASSESSMENT YEAR 2010 11 IMPUGNING THE ORDER OF CIT(A) IN ALLOWING ASSESSEES CLAIM OF DEDUCTION U/S 80IA(4). THE TRIBUNAL RE JECTED THE APPEAL OF DEPARTMENT BY HOLDING AS UNDER: 3. WE HAVE HEARD THE PARTIES. THE LD. COUNSEL SUB MITS THAT IDENTICAL ISSUE HAS COME FOR THE CONSIDERATION BEFORE THE TRIBUNAL IN THE A.YRS. 2008-09 AND 2009-10 IN ASSESSEES OWN CASE AND THE ISSUE HAS BEEN DECIDED IN FAVOUR OF TH E ASSESSEE. THE LD. COUNSEL FILED THE TRIBUNAL ORDER IN ASSESSEES OWN CASE IN ITA NOS.37 4 AND 1846/PN/2012 ORDER DATED 18- 06-2014 WHICH IS PLACED ON RECORD. WE FIND THAT TH E ISSUE OF DEDUCTION U/S.80IA(4) STANDS FULLY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECI SION OF THIS TRIBUNAL IN ASSESSEES OWN CASE IN A.YRS. 2008-09 AND 2009-10 (ITA NO.374 AND 1846/PN/2012 ORDER DATED 18-06- 2014). THE OPERATIVE PART OF THE DECISION CONFIRMIN G THE ORDER OF THE LD. CIT(A) IN THOSE A.YS IS AS UNDER : 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS RELIED ON BY BOTH THE SIDES. WE FIND THAT THE A.O. IN THE INSTANT CASE H AS DENIED THE BENEFIT OF DEDUCTION U/S. 80IA(4) ON THE GROUND THAT THE ASSESSEE WAS A CONTR ACTOR OR SUB-CONTRACTOR EXECUTING THE WORKS CONTRACT AWARDED BY THE GOVT. AGENCIES/ST ATUTORY AGENCIES AND THAT THE ASSESSEE IS NOT A DEVELOPER OF THE INFRASTRUCTURE F ACILITIES. IT IS ONLY THE GOVT. AGENCIES OR THE STATUTORY AGENCIES WHO WERE ACTUALLY DEVELOP ING THE INFRASTRUCTURE PROJECTS. RELYING ON THE RETROSPECTIVE AMENDMENT IN SEC. 80IA OF THE I.T. ACT WHICH CLARIFIES THAT THE DEDUCTION CANNOT BE ALLOWED IN RELATION TO THE BUSINESS IN THE NATURE OF WORKS CONTRACT, THE A.O. DISALLOWED THE CLAIM U/S. 80IA(4). WHILE DOING SO HE ALSO RELIED ON THE DECISION OF THE MUMBAI BENCH OF THE T RIBUNAL IN THE CASE OF M/S. B.T. PATIL & SONS BELGAUM CO. PVT. LTD. (SUPRA). WE FIN D THAT THE CIT(A) RELYING ON THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF ABG HEAVY INDUSTRIES LTD. (SUPRA) ALLOWED THE CLAIM OF DEDUCTION MADE BY THE ASSESSEE. WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. PRATIBHA CONSTR UCTION & ENGINEERING (I) P. LTD. VS. ACIT VIDE ITA NO. 118/PN/2008 AND OTHER CONNECTED A PPEALS FOR A.YS. 2003-04 TO 2006-07 ORDER DATED 27-09-2011 WHILE DECIDING AN ID ENTICAL ISSUE HAS OBSERVED AS UNDER: 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AS ALSO THE AUTHORITIES CITED AT BAR. THE CRUX OF THE CONTROVERSY REVOLVES AROUND SECTION 80IA(4)(I) WHICH READS AS UNDER: 801A(4)(I): ANY ENTERPRISE CARRYING ON THE BUSINES S OF (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRUCTURE FACILITY WHICH FULFILS ALL THE FOLLOWING 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; ITA NO. 2206/ PN/2014, A.Y. 2011-12 5 (B) IT HAS ENTERED INTO AN AGREEMENT WITH THE CENTRAL G OVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORITY OR ANY OTHER STATUTORY BODY FO R (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAINTAINING NEW INFRASTRUCTURE FACILITY; (C) IT HAS STARTED OR STARTS OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR AFTER THE 1 ST DAY OF APRIL, 1995: PROVIDED THAT WHERE AN INFRASTRUCTURE FACILITY IS T RANSFERRED ON OR AFTER THE 1 ST DAY OF APRIL, 1999 BY AN ENTERPRISE WHICH DEVELOPED SUCH I NFRASTRUCTURE FACILITY (HEREAFTER REFERRED TO IN THIS SECTION AS THE TRANSFEROR ENTER PRISE) TO ANOTHER ENTERPRISE (HEREAFTER IN THIS SECTION REFERRED TO AS THE TRANS FEREE ENTERPRISE) FOR THE PURPOSE OF OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILI TY ON ITS BEHALF IN ACCORDANCE WITH THE AGREEMENT WITH THE CENTRAL GOVERNMENT, STATE G OVERNMENT, LOCAL AUTHORITY OR STATUTORY BODY, THE PROVISIONS OF THIS SECTION SHAL L APPLY TO THE TRANSFEREE ENTERPRISE AS IF IT WERE THE ENTERPRISE TO WHICH THIS CLAUSE A PPLIES AND THE DEDUCTION FROM PROFITS AND GAINS WOULD BE AVAILABLE TO SUCH TRANSFEREE ENT ERPRISE FOR THE UNEXPIRED PERIOD DURING WHICH THE TRANSFEROR ENTERPRISE WOULD HAVE B EEN ENTITLED TO THE DEDUCTION, IF THE TRANSFER HAD NOT TAKEN PLACE. THE CLAIM OF THE REVENUE IS THAT THE ASSESSEE HAS A CTED ONLY AS A CONTRACTOR WHO HAS BEEN AWARDED A WORK BY A GOVERNMENT AGENCY AND, THE REFORE, IT CANNOT BE SEEN AS CARRYING ON THE BUSINESS OF DEVELOPING AS ENVISAG ED UNDER SECTION 80IA(4) OF THE ACT. IN SUPPORT, THE CLAIM OF THE REVENUE IS THAT T HE ASSESSEE IS NEITHER OPERATING AND MAINTAINING INFRASTRUCTURE FACILITY AND NOR HAS THE RIGHT TO UNDERTAKE THE OPERATION AND MAINTENANCE AND, THEREFORE, IT DOES NOT QUALIFY FOR THE DEDUCTION. THE ARGUMENT IS FURTHER SUPPORTED BY SUB-CLAUSE (C) OF SECTION 8 0IA(4)(I) WHICH ENVISAGES THAT THE ASSESSEE IS TO START OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR AFTER 1.4.1995. 7. TO OUR MIND, THE CONTROVERSY RAISED BY THE REVEN UE HAS BEEN SQUARELY ADDRESSED BY THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF ABG HEAVY ENGG. LTD. (SUPRA) AND THE FOLLOWING PORTION OF THE JUDGMENT IS WORTHY OF NOTICE: 22 THE SUBMISSION WHICH WAS URGED ON BEHALF OF THE REVENUE IS THAT UNDER CLAUSE (III) OF SUB-SECTION (4) OF SECTION 80IA, ONE OF TH E CONDITIONS IMPOSED WAS THAT THE ENTERPRISE MUST START OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR AFTER 1 ST APRIL, 1995. THE SAME REQUIREMENT IS EMBODIED IN S UB-CLAUSE (1)OF SUB-CLAUSE (4) OF THE AMENDED PROVISIONS. IT WAS URGED THAT SI NCE THE ASSESSEE WAS NOT OPERATING AND MAINTAINING THE FACILITY, HE DID NOT FULFILL TH E CONDITION. THE SUBMISSION IS FALLACIOUS BOTH IN FACT AND IN LAW. THAT THE ASSESSEE WAS MAINTAINING THE FACILITY IS N OT IN DISPUTE. THE FACILITY WAS COMMENCED AFTER 1 ST APRIL, 1995. THEREFORE, THE REQUIREMENT WAS MET IN FACT. MOREOVER, AS A MATTER OF LAW, WHAT THE CONDITION ES SENTIALLY MEANS IS THAT THE INFRASTRUCTURE FACILITY SHOULD HAVE BEEN OPERATIONA L AFTER 1 ST APRIL, 1995. AFTER SECTION 80-IA WAS AMENDED BY THE FINANCE ACT, 2001, THE SEC TION APPLIES TO AN ENTERPRISE CARRYING ON THE BUSINESS OF (1) DEVELOPING; OR (II) OPERATING AND MAINTAINING; OR (III) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRU CTURE FACILITY WHICH FULFILLS CERTAIN CONDITIONS. THOSE CONDITIONS ARE (1) OWNERS HIP OF THE ENTERPRISES BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUMS; (I I) AN AGREEMENT WITH THE CENTRAL OR STATE GOVERNMENT, LOCAL AUTHORITY OR STATUTORY B ODY; AND (III) THE START OF OPERATION AND MAINTENANCE OF THE INFRASTRUCTURE FAC ILITY SHOULD COMMENCE AFTER 1 ST APRIL, 1995. THE REQUIREMENT THAT OPERATION AND MAINTENANCE OF T HE INFRASTRUCTURE FACILITY SHOULD COMMENCE AFTER 1 ST APRIL, 1995 HAS TO BE HARMONIOUSLY CONSTRUED WITH THE MAIN PROVISION UNDER WHICH DEDUCTION IS AVAILAB LE TO AN ASSESSEE WHO DEVELOPS OR OPERATES AND MAINTAINS, OR DEVELOPS, OPERATES AND M AINTAINS AN INFRASTRUCTURE FACILITY. ITA NO. 2206/ PN/2014, A.Y. 2011-12 6 A HARMONIOUS READING OF THE PROVISIONS IN ITS ENTIR ETY WOULD LEAD TO THE CONCLUSION THAT THE DEDUCTION IS AVAILABLE TO AN ENTERPRISE WH ICH (I) DEVELOPS; OR OPERATES AND MAINTAINS; OR (III) DEVELOPS, MAINTAINS AND OPERATE S THAT INFRASTRUCTURE FACILITY. HOWEVER, THE COMMENCEMENT OF THE OPERATION AND MAIN TENANCE OF THE INFRASTRUCTURE FACILITY SHOULD BE AFTER 1 ST APRIL, 1995. IN THE PRESENT CASE THE ASSESSEE CLEA RLY FULFILLED THIS CONDITION. BEFORE THE AMENDMENT THAT WAS BROUGHT ABOUT BY PARL IAMENT BY FINANCE ACT, 2001 WE HAVE ALREADY NOTED THAT THE CONSISTENT LINE OF C IRCULAR OF THE BOARD POSTULATED THE SAME POSITION. THE AMENDMENT MADE BY PARLIAMENT TO S. 80IA(4) OF THE ACT, SET THE MATTER BEYOND ANY CONTROVERSY BY STIPULATING THAT T HE THREE CONDITIONS FOR DEVELOPMENT, OPERATION AND MAINTENANCE WERE NOT INT ENDED TO BE CUMULATIVE IN NATURE. (UNDERLINED FOR EMPHASIS BY US) 8. NOTABLY, EVEN IN THE CASE BEFORE THE HIGH COURT, THE ASSESSEE ACTED AS A CONTRACTOR FOR GOVERNMENT AGENCY AND WAS HELD ELIGI BLE FOR THE PURPOSES OF CLAIM OF DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. AS PER THE LEGAL POSITION OPINED BY THE HONBLE HIGH COURT, IT IS EVIDENT THAT AN ASSESSEE WHO ONLY DEVELOPS INFRASTRUCTURE FACILITY (EVEN AS A CONTRACTOR) BUT DOES NOT HAVE A N OCCASION TO OPERATE AND MAINTAIN IS ALSO ELIGIBLE FOR CLAIM OF DEDUCTION UNDER SECTI ON 80IA(4) OF THE ACT AND THE HONBLE HIGH COURT HAS EXPLAINED THAT QUA SUCH A PERSON THE CONDITION STATED IN SUB-CLAUSE (C) OF SECTION 80IA(4)(I) HAS TO BE READ HARMONIOUSLY W ITH THE MAIN PROVISION UNDER WHICH DEDUCTION IS AVAILABLE TO AN ASSESSEE, WHO DE VELOPS; OR OPERATES AND MAINTAINS; OR DEVELOPS, MAINTAINS AND OPERATES AN INFRASTRUCTU RE FACILITY. IN OTHER WORDS, AS OPINED BY THE HONBLE HIGH COURT, A DEVELOPER WHO O NLY DEVELOPS (I.E. CONSTRUCTS) AN INFRASTRUCTURE FACILITY AND IS NOT ENVISAGED TO OPE RATE AND MAINTAIN SUCH FACILITY, CANNOT BE EXPECTED TO FULFIL THE CONDITION IN CLAUS E (C) OF SECTION 80IA(4) SINCE IT WOULD BE AN IMPOSSIBILITY. THEREFORE, IN VIEW OF TH E CONSTRUCTION PLACED BY THE HONBLE BOMBAY HIGH COURT ON THE REQUIREMENTS OF CLAUSE (C) OF SECTION 80IA(4)(I), REQUIRING IT TO BE HARMONIOUSLY READ WITH THE MAIN CLAUSE OF SECTION 80IA(4)(I), WE FIND THAT THE OBJECTION RAISED BY THE REVENUE IN THE PRESENT CASE IS DEVOID OF MERITS. THE REASONING ENUNCIATED BY THE HONBLE BOMBAY HIGH COURT AS EXTR ACTED ABOVE FULLY ANSWERS THE CONTROVERSY RAISED BY THE REVENUE IN THE PRESENT CA SE AND, THEREFORE, WE FIND THAT THE ASSESSEE HAS TO SUCCEED IN THIS APPEAL IN THE PRESE NT CASE. ACCORDINGLY, THE GROUND OF APPEAL RAISED BEFORE US AND WHICH IS COMMON IN ALL THE YEARS IS ADJUDICATED IN FAVOUR OF THE ASSESSEE. 9. RESULTANTLY, THE CAPTIONED APPEALS OF THE ASSESS EE ARE ALLOWED. 8. RESPECTFULLY FOLLOWING THE DECISION OF THE JURIS DICTIONAL HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES LTD. (SUPRA) WHICH HAS BEEN FO LLOWED BY THE CO-ORDINATE BENCH OF TRIBUNAL IN THE CASE OF M/S. PRATIBHA CONSTRUCTI ON & ENGINEERING (I) P. LTD. (SUPRA) WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) ALL OWING THE CLAIM OF DEDUCTION/S. 80IA(4)(I) MADE BY THE ASSESSEE. 9. SO FAR AS THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF YOJAKA MARINE (P) LTD. VS. ACIT REPORTED IN 35 TAXMANN.COM 408 (KARNATAKA) RELIED ON BY THE LD. DEPARTMENTAL REPRESENTATIVE IS CONCERNED TH E SAME IN OUR OPINION IS NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE IN VIEW OF THE DECISION OF THE JURISDICTIONAL HIGH COURT CITED (SUPRA) WHICH IS BINDING ON US. I N THIS VIEW OF THE MATTER WE UPHOLD THE ORDER OF THE CIT(A) AND THE GROUNDS RAISED BY T HE REVENUE ARE DISMISSED. 4. AS THE FACTS ARE IDENTICAL IN THIS YEAR ALSO, HE NCE, THERE IS NO REASON TO TAKE A DIFFERENT VIEW. WE THEREFORE FOLLOWING THE ORDER OF THIS TRI BUNAL IN ASSESSEES OWN CASE DISMISS THE GROUNDS TAKEN BY THE REVENUE. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ITA NO. 2206/ PN/2014, A.Y. 2011-12 7 6.1 SINCE, THERE HAS BEEN NO CHANGE IN FACTS AND CIRCUMS TANCES IN THE ASSESSMENT YEAR UNDER APPEAL, WE FIND NO REASON TO TAKE A DIFFERE NT VIEW. THEREFORE, FOLLOWING THE ORDER OF CO-ORDINATE BENCH IN ASSE SSEES OWN CASE FOR ASSESSMENT YEAR 201011, WE DISMISS THIS APPEAL OF THE DEPARTMENT AND UPHOLD THE FINDINGS OF CIT(A). 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 10 TH DAY OF NOVEMBER, 2016. SD/- SD/- ( / R.K. PANDA) ( #'' $ / VIKAS AWASTHY) + ACCOUNTANT MEMBER % + JUDICIAL MEMBER / PUNE; / DATED : 10 TH NOVEMBER, 2016 S S G G R R *,-%./#0#). / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ! ) ( / THE CIT(A)-II, PUNE. 4. ! / THE CIT-II, PUNE 5. $%& ''() , () , * *+, , / DR, ITAT, B BENCH, PUNE. 6. &-. /0 / GUARD FILE. 1 / BY ORDER, //TRUE COPY// '2 (, / SR PRIVATE SECRETARY, () , / ITAT, PUNE