M/s. Jaypee Infratech Ltd., Noida V. ACIT, Noida

ITA 414/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7316 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 19-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 20-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Assessee Lawyers: VINOD GARG
• Keywords: Business income; Depreciation; Principle of natural justice; Rule of consistency; Source of fund; Retrospective amendment; Additional evidence; Cost of acquisition; Corroborative evidences; Capital receipt; Capital expenditure
• Section: 143(3); 32; 54; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH.L.P.SAHU, ACCOUNTANT MEMBER I.T.A .NO.-414/DEL /2015 (ASSESSMENT YEAR-2011-12) M/S JA YPEE INFRATECH LTD., SECTOR-128, NOIDA. PAN-AABCJ9042R (APPELLANT) VS ACIT, CIRCLE-2, NOIDA ( RESPONDENT) A SSESSEE BY SH. ANIL CHOPRA, CA & SH. VINOD GARG, CA R EVENUE BY SULEKHA VERMA, CIT DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 12.01.2015 OF CIT(A) -1, NOIDA PERTAINING TO 2011 12 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED ASSESSING OFFICER [LD. AO] HAS ER RED ON FACTS AND IN LAW IN ASSESSING THE APPELLANT ON A TOTAL INCOME OF RS. 18,55,39,36.310/- AGAINST THE TOTAL INCOME OF RS. N IL AS RETURNED AND THE LEARNED CIT (APPEALS) [LD. CIT(A)] HAS ERRE D IN SUSTAINING THE SAME. 2. THAT THE ASSESSMENT ORDER INVOLVED IS UNLAWFUL AND AGAINST PRINCIPLES OF NATURAL JUSTICE WITHOUT PROVIDING SUF FICIENT AND PROPER LAWFUL OPPORTUNITY TO THE APPELLANT AND LD. CIT(A) HAS ERRED IN RIOT QUASHING THE SAME. 3. THAT THE UNLAWFUL ASSESSMENT AS MADE AND ORDER OF L D. CIT(A) ARE BASED ON ERRONEOUS VIEWS, NON APPRECIATION OF FACTS AND LAW ON SUSPICION AND CONJECTURES CONTRARY TO BINDING CASE LAWS IN THE APPELLANT'S FAVOUR, WITHOUT PROPER CONSIDERATION AN D REBUTTAL OF FILINGS AND SUBMISSIONS ON RECORD. DATE OF HEARING 19.07.2016 DATE OF PRONOUNCEMENT 06.09.2016 I.T.A .NO.-414/DEL/2015 PAGE 2 OF 95 4. THAT THE LD. CIT(A) HAS ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCE AS FILED BY THE APPELLANT ARID RIOT CONSID ERING THE SAME FOR GRANT OF RELIEF PRAYED FOR BY THE APPELLANT. OTHER INCOME 5. THAT THE LD. AO HAS ERRED ON FACTS AND IN LAW I N ASSESSING A SUM OF RS.19,57,55,569/- AS INCOME FROM OTHER SOURCES RATH ER THAN AS BUSINESS INCOME. THE SAID AMOUNT IS ASSESSABLE AS B USINESS INCOME AS AN INTRINSIC PART OF INCOME FROM THE INFRASTRUCT URE FACILITY PROJECT. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE VIEW OF T HE LD. AO. 6. THAT THE LD, AO HAS ERRED ON FACTS AND IN LAW IN NOT ASSESSING THE SAID OTHER INCOME OF RS. 19,92,85,259/- AS BUSINESS INCOME DERIVED FROM THE ELIGIBLE INFRASTRUCTURE FACILITY AND IN NO T ALLOWING DEDUCTION U/S 80IA IN RESPECT OF THE SAME. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE VIEW OF THE LD. AO. 7. THAT THE LD. AO HAS ERRED ON FACTS AND IN LAW IN RIOT NETTING THE INTEREST INCOME ON FDRS OF RS. 14,50,06,637/- IN OT HER INCOME AGAINST THE SUBSTANTIALLY HIGHER AMOUNT OF INTEREST PAID HAVING A NEXUS AND COMMON BUSINESS WITH THE SAID INTEREST EA RNED. THE SAID INTEREST IS DERIVED FROM THE BUSINESS OF THE INFRAS TRUCTURE UNDERTAKING AND IS ELIGIBLE FOR DEDUCTION U/S 80IA. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE VIEW OF THE LD. AO. 8. THAT THE LD. AO HAS ERRED ON FACTS AND IN LAW IN ASSESSING A SUM OF RS. 75.75.63,278/- BEING INCOME FROM FDRS AS INCOME FROM OTHER SOURCES. THE LD. AO HAS ERRED IN NOT NETTING THE IN TEREST INCOME ON FDRS AGAINST THE SUBSTANTIALLY HIGHER INTEREST PAID HAVING NEXUS AND COMMON BUSINESS WITH THE SAID INTEREST EARNED. THE SAID INTEREST HAS BEEN NETTED AGAINST INTEREST PAID UNDE R CAPITAL WORK IN PROGRESS AS PER AS-16. IN ANY CASE, THE SAID INCOME IS ALSO DERIVED FROM INFRASTRUCTURE FACILITY AND ITS LOUSINESS INCO ME ELIGIBLE FOR DEDUCTION U/S 80IA AS AN INTRINSIC PART OF THE BUSI NESS OF THE INFRASTRUCTURE FACILITY. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE VIEW OF THE LD. AO. DISALLWOANCE OF DEDUCTION U/S 80IA 9. THAT THE LD. AO HAS ERRED ON FACTS AND IN LAW IN RIOT ALLOWING DEDUCTION U/S 80IA ON THE ENTIRE BUSINESS INCOME EA RNED BY THE APPELLANT, WHICH HAS BEEN ASSESSED AT RS.17,92,96,9 1,790/- AS THE SAME HAS BEEN DERIVED FROM THE ELIGIBLE INFRASTRUCT URE FACILITY ENTITLED TO 100% DEDUCTION OF INCOME U/S 80IA. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE VIEW OF THE LD. AO. 10. THAT THE LD. AO HAS ERRED IN NOT ALLOWING DEDUC TION AS CLAIMED U/S 80IA. THE APPELLANT IS ELIGIBLE FOR DEDUCTION OF IT S ENTIRE INCOME U/S 80IA IN CONTEXT OF ITS ALTERNATE CLAIMS U/S 80IA(4) (I) EXPLANATION (A) BEING ROAD INCLUDING TOLL ROAD OR ALTERNATELY UNDER EXPLANATION (B) AS A HIGHWAY PROJECT WHERE HOUSING OR OTHER ACTIVITIES ARE AN INTEGRAL PART OF A HIGHWAY PROJECT AS READ WITH SECTION 80IA (6). THE APPELLANT'S CLAIMS IN THIS MATTER ARE WITHOUT PREJU DICE TO EACH OTHER. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE VIEW OF T HE LD. AO. I.T.A .NO.-414/DEL/2015 PAGE 3 OF 95 11.THAT A PROVISION SHOULD BE INTERPRETED IN SUCH A MARINER SO THAT IT SUBSERVES THE PURPOSE FOR WHICH IT IS ENACTED AND D OES NOT FRUSTRATE SUCH PURPOSE. MOREOVER, THE BENEFICIAL PROVISIONS F OR TAX DEDUCTIONS SUCH AS SECTION 80IA TO PROMOTE PRIORITY SECTORS AR E TO BE LIBERALLY CONSTRUED: AND THERE TOO EVEN IF TWO VIEWS ARE REAS ONABLY POSSIBLE THEN THE VIEW FAVOURING THE APPELLANT IS TO BE ADOP TED. AS SUCH ALSO, THE APPELLANT IS CLEARLY ENTITLED TO DEDUCTION U/S 80IA OF INCOME DERIVED FROM INFRASTRUCTURE FACILITY. 12.THAT, INTER ALIA, THE APPELLANT IS ENTITLED TO D EDUCTION U/S 80IA(4) ON THE FACTS AND AW INVOLVED AS A DEVELOPER OF THE INF RASTRUCTURE FACILITY EVEN IF IT IS RIOT OPERATING AND MAINTAINING THE SA ME IN VIEW OF DIRECT DECISIONS IN ITS FAVOUR INCLUDING INTER ALIA REPORT ED IN ACIT V. BHARAT UDYOG LTD. 118 ITD 336 WHICH FOLLOWS THE DECISION O F THE HON'BLE APEX COURT IN K. P VERGHESE V. ITO 131 ITR 597 (SC) AND AS IN TRG INDUSTRIES (P) LTD. V. DCIT (2013) 35 TAXRNANN.COM 253 (AMRITSAR - TRIBUNAL). DISALLOWANCE OF EXPENSES U/S 40(A)(IA) 13.THAT THE LD. AO HAS ERRED ON FACTS ARID IN LAW I N MAKING A DISALLOWANCE U/S 40(A)(IA) FOR IMPUGNED NON DEDUCTI ON FROM INTEREST AND RENT SAID TO BE PAID OF YAMUNA EXPRESSWAY INDUS TRIAL DEVELOPMENT AUTHORITY (YEIDA). THE SAID DISALLOWANC E HAS ERRONEOUSLY BEEN MADE AT A TOTAL AMOUNT OF RS. 56,3 4,34,816/-, WHEREAS THE CORRECT TOTAL AMOUNT IS RS 55,93,52,816 /- AS SEEN FROM HIS ORDER ITSELF. THE LD. AO HAS ERRED IN MAKING THE SAID DISALLOWANC E OF ALLEGED INTEREST AS IT IS NOT DEBITED TO P&L ACCOUNT OR CLA IMED AS EXPENSE BUT DEBITED AS CURRENT ASSET TO PROJECT UNDER DEVEL OPMENT. SIMILARLY, OUT OF LEASE RENT, RS. 2,01,282/- IS DEBITED TO CAP ITAL WORK IN PROGRESS, RS. 2,42,132/- TO PROJECT UNDER DEVELOPME NT AND ONLY RS. 10,149/- HAS BEEN CLAIMED AS EXPENSE. 14.THAT MOREOVER, THE LD. AO HAS ERRED IN MAKING TH E SAID DISALLOWANCE WITHOUT VERIFYING OR HOLDING THAT THE TAX INVOLVED HAS NOT BEEN PAID BY THE PAYEE. AS SUCH TOO, THE SAID D ISALLOWANCE U/S 40(A)(IA) IS LIABLE TO BE DELETED. DISALLOWNACE OF DEPRECIATION 15.THAT THE LD. AO HAS ERRED ON FACTS AND IN LAW IN DISALLOWING DEPRECIATION OF RS. 6,08.09,703/- THE DEPRECIATION IS ON ASSETS OWNED BY THE APPELLANT FOR PURPOSES OF BUSINESS ON WHICH MUCH INCOME HAS BEEN ASSESSED. ALL PROVISIONS OF SECTION 32 AND RELEVANT PROVISIONS OF THE ACT ARE COMPLIED. THE DE PRECIATION IS ADMISSIBLE IN TOTO. THE LD. CIT(A) HAS ERRED IN UPH OLDING THE VIEW OF THE LD.AO. GENERAL 16.THAT THE GROUNDS OF APPEAL, AS HEREIN ARE WITHOU T PREJUDICE TO EACH OTHER. 17.THAT THE ASSESSMENT AS MADE AND THE ORDER OF THE LD.CIT(A) ARE AGAINST LAW AND FACTS OF THE CASE INVOLVED. I.T.A .NO.-414/DEL/2015 PAGE 4 OF 95 18.THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, M ODIFY AND/OR FORGO ANY OF THE GROUNDS OF APPEAL. 2. LD. AR INVITING ATTENTION TO THE GROUNDS RAISED SU BMITTED THAT PRIMARILY THE ASSESSEES MAIN PRAYER IS ADDRESSED VIDE GROUND NOS. 9 TO 12 I.E. NAMELY THAT THE ASSESSEES CLAIM OF DEDUCTION IS COVERED UNDER CLAUSE (A) OF EXPLANATION TO SECTION 80IA(4)(I). ONLY IN THE EVE NTUALITY IF THE SAID PRAYER IS HELD TO BE NOT ALLOWABLE, THEN WITHOUT PREJUDICE T O THE MAIN ARGUMENT THE ASSESSEE WOULD BE SEEKING ADJUDICATION ON THE ALTER NATE PRAYER THAT THE DEDUCTION IS ALLOWABLE UNDER EXPLANATION (B) TO SEC TION 80IA(4) AND THUS BE GOVERNED BY THE PROVISIONS OF SECTION 80IA(6). IN THE EVENTUALITY IT WAS SUBMITTED THAT THE ASSESSEE FAILS IN ITS MAIN PRAYE R AND THE ALLOWABILITY OF THE ASSESSEES CLAIM IS BEING CONSIDERED IN THE ALTERNA TE GROUND THEN THE ASSESSEES PETITION FOR SEEKING ADMISSION OF ADDITIONAL EVIDE NCE WOULD ALSO NEED TO BE ADDRESSED. THE SAID PRAYER IT WAS SUBMITTED IS ADD RESSED BY THE GROUND NO. 4 IN THE PRESENT PROCEEDINGS. 2.1. ADDRESSING THE GROUNDS IT WAS SUBMITTED GROUND NO. 1 MAY BE TREATED AS A GENERAL GROUND AND IT ADDRESSES THE ENTIRE ADD ITION AND MAY NOT REQUIRE ANY SPECIFIC ADJUDICATION INDEPENDENTLY. GROUND NO. 2 IT WAS SUBMITTED ADDRESSES LACK OF OPPORTUNITY AND THE ASSESSEE WOUL D NOT WANT TO PRESS THE SAID GROUND. GROUND NO. 3 IT WAS SUBMITTED MAY BE T AKEN AS AN ARGUMENT ON THE ISSUES AGITATED IN THE SUBSEQUENT GROUNDS. 2.2. BY WAY OF GROUND NO. 5 AND 6 IT WAS SUBMITTED THE ASSESSEE PRAYS THAT THE BUSINESS INCOME BROUGHT TO TAX AS INCOME FROM OTHER SOURCES WOULD BE ON FACTS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA (4). BY GROUND NO. 7 BENEFIT I.T.A .NO.-414/DEL/2015 PAGE 5 OF 95 OF NETTING IS PRAYED FOR. VIDE GROUND NO. 8, FDR S MAINTAINED IN THE COURSE OF THE BUSINESS IT IS BEING ARGUED IS BUSINESS INCOME AND NOT INCOME FROM OTHER SOURCES AS IT IS INCOME DERIVED FROM INFRASTRUCTURE FACILITY. IT WAS HIS SUBMISSION THAT THE ASSESSEE WOULD BE ARGUING THAT THERE IS NEXUS BETWEEN INTEREST INCOME PAID AND EARNED. GROUND NO.13 IT WA S SUBMITTED ADDRESSES THE GRIEVANCE AGAINST THE DISALLOWANCE MADE U/S 40(A)(I A). ON THIS ISSUE DECISION OF THE JURISDICTIONAL HIGH COURT WHICH BEING THE AL LAHABAD HIGH COURT IT WAS SUBMITTED IS IN ASSESSES FAVOUR. ALTERNATELY EVE N OTHERWISE ADDRESSING GROUND NO. 14 IT WAS SUBMITTED RELIANCE IS PLACED O N THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF THE HINDUSTAN COC A-COLA BEVERAGE P. LTD. VS CIT [2007] 293 ITR 226 (SC). BY GROUND NO. 15 IT W AS SUBMITTED THE ASSESSEE PRAYS FOR DELETION OF THE ADDITION MADE BY WAY OF A DISALLOWANCE OF DEPRECIATION ON ASSETS WHICH ARE OWNED BY THE ASSESSEE AND USED FOR THE PURPOSES OF BUSINESS OF THE ASSESSEE. IT WAS SUBMITTED THAT DE PRECIATION ON THE INFRASTRUCTURAL ASSETS HAS NOT BEEN CLAIMED AS THEY HAVE BEEN DULY CAPITALIZED. GROUND NOS. 16 TO 18 IT WAS SUMMED UP ARE GENERAL G ROUNDS. RELIANCE IN SUPPORT OF THE GROUNDS RAISED WAS PLACED ON THE WRI TTEN SUBMISSIONS FILED SEPARATELY FOR THE MAIN ISSUES ADDRESSED IN GROUND NOS.9 TO 12 AND ALSO ANOTHER SEPARATE WRITTEN SUBMISSIONS ON THE REMAINI NG GROUNDS SUPPORTED BY PAPER BOOKS CONSISTING OF CASE LAWS ETC. RELIED UPO N ADDRESSING THE ARGUMENTS ON FACTS AND LAW. 3. ADDRESSING FIRST THE MAIN ISSUE ADDRESSED VIDE GROU ND NOS.9 TO 12, RELIANCE WAS PLACED ON THE SYNOPSIS AND THE WRITTEN SUBMISSIONS FILED. INVITING I.T.A .NO.-414/DEL/2015 PAGE 6 OF 95 ATTENTION TO THE SAME IT WAS SUBMITTED THAT THE ORD ER OF THE ITAT DATED 13.04.2015 IN ASSESSEES OWN CASE IN ITA NO. 3339/D EL/2014 PERTAINING TO 200910 ASSESSMENT YEAR FULLY ADDRESSED THE ISSUES IN THE PRESENT APPEAL. THE ISSUE IT WAS SUBMITTED WAS FULLY COVERED IN ASSESSE ES FAVOUR AS CONSIDERING THE VERY SAME PROVISIONS FOR THE VERY SAME ACTIVITY IN THE INITIAL YEAR ITSELF THE ITAT HAS ALLOWED ASSESSEES CLAIM THUS FOLLOWING THE PRE CEDENT DEDUCTION IS ALLOWABLE TO THE ASSESSEE IN TERMS OF CLAUSE (A) OF EXPLANATION TO SECTION 80IA(4). COPY OF THE SAID ORDER IT WAS SUBMITTED IS ALREADY AVAILABLE ON RECORD. 3.1. THE ABOVE GROUNDS IT WAS SUBMITTED HAVE BEEN RAISE D IN THE CASE OF AN ASSESSEE WHERE THE MATERIAL FACTS CONTINUE TO REMAI N THE SAME. READING FROM THE SYNOPSIS/WRITTEN SUBMISSIONS IT WAS ARGUED THAT THE ASSESSEE COMPANY WHICH IS INCORPORATED UNDER THE COMPANIES ACT, 1956 WAS FORMED AS A SPECIAL PURPOSE VEHICLE (SPV) ON 05/04/2007 FOR DEVELOPING, OPERATING AND MAINTAINING THE TOLL ROAD BETWEEN NOIDA AND AGRA A LONG WITH SERVICE ROAD AND ASSOCIATED STRUCTURES WITH RIGHTS ALLOTTED TO IT TO COLLECT TOLL DURING THE CONCESSION PERIOD (WHICH WAS FIXED AS 36 YEARS) ALO NGWITH RIGHTS FOR SUB LEASE/ DEVELOPMENT OF LAND AS INTEGRAL PART OF THE YAMUNA EXPRESSWAY PROJECT. 3.1.1. IT WAS SUBMITTED THAT TAJ EXPRESSWAY INDUSTRIAL DE VELOPMENT AUTHORITY (TEA) (CONSTITUTED BY GOVERNMENT OF UTTAR PRADESH ( GOUP) VIDE NOTIFICATION NO. 697/77-4-2001-3(N) /2001 DATED 24.04.2001 UNDER U.P . INDUSTRIAL AREA DEVELOPMENT ACT, 1976) INVITED OFFERS FROM INTEREST ED PARTIES OF NATIONAL / INTERNATIONAL STATURE. THE OFFERS WERE INVITED BY T EA ON 14.05.2001 FOR I.T.A .NO.-414/DEL/2015 PAGE 7 OF 95 DEVELOPMENT, OPERATION AND MAINTENANCE OF 6 LANE AC CESS CONTROLLED EXPRESSWAY. 3.1.2. M/S JAIPRAKASH ASSOCIATES LTD. (FORMERLY KNOWN AS J AIPRAKASH INDUSTRIES LTD.) IT WAS SUBMITTED WAS DECLARED THE SUCCESSFUL BIDDER. READING FROM THE SYNOPSIS FILED IT WAS SUBMITTED THAT THESE ARE ADMITTED FACTS AND ARE BEING ADDRESSED SO AS TO DEMONSTRATE THAT THE ASSES SEE SCRUPULOUSLY ADHERING TO THE REQUIREMENTS OF THE AGREEMENT PERFORMED ITS END OF THE BARGAIN AND DELIVERED A WORLD CLASS EXPRESSWAY WHICH IS THE SHO WCASE OF THE DEVELOPMENTAL ACTIVITY OF THE COUNTRY. THE ASSESSEE ON ACCOUNT O F PERFORMING THE TASKS UNDERTAKEN IS ENTITLED FOR CLAIMING THE STATUTORY D EDUCTION U/S 80IA(4) EXPLANATION (A) OF THE ACT. IT WAS SUBMITTED THAT IN THE PERFORMANCE OF THIS HERCULEAN TASK MEETING THE STRINGENT REQUIREMENTS O F QUALITY AND DELIVERABILITY IT WOULD NOT BE OUT OF PLACE TO STATE THAT THE ENGI NEERING DEVELOPMENTAL FEAT IS A TECHNOLOGICAL AND DEVELOPMENTAL ACHIEVEMENT IN ITS OWN RIGHTS WHICH HAS BEEN SUBJECTED TO RIGOROUS AND INTENSE JUDICIAL SCRUTIN Y, MEDIA GLARE ETC. AND HAS FACED VARIOUS INVESTIGATIONS, PUBLIC INTEREST LITIG ATION, ENQUIRY ETC. WHERE GRANT, PURPOSE, AIM AND OBJECT OF EACH AND EVERY ASPECT OF THIS ACTIVITY HAS BEEN REPEATEDLY ENQUIRED INTO AT VARIOUS LEVELS RIGHT UP TO THE LEVEL OF THE APEX COURT. THESE INTENSE LEGAL AND SOCIO-ECONOMIC SCRUTINY IT WAS SUBMITTED IS NOT WITHSTANDING THE ECONOMIC DOWNTURN AND FINANCIAL CR UNCH EXPERIENCED IN THE ECONOMY WORLD OVER WHICH WAS MAGNIFIED IN THE CASE OF THE ASSESSEE DUE TO ITS INTENSE EXPOSURE TO FINANCE INTENSIVE ACTIVITY. IT WAS SUBMITTED BY THE LD.AR THAT HE IS NOT INDULGING IN SELF PRAISE AND IS ONLY ENDEAVOURING TO ADDRESS THE I.T.A .NO.-414/DEL/2015 PAGE 8 OF 95 REALITIES THAT DESPITE ALL THESE UNPLANNED ECONOMIC HURDLES; LITIGATION /AND ENQUIRIES FACED FROM ALL CORNERS HAS DELIVERED A WO RLD CLASS TOLL-ROAD DESPITE ALL ODDS STILL ADHERING TO THE QUALITY OF WORK AGREED U PON BY FULFILLING THE REQUIREMENTS OF THE LEGISLATIVE PROMISE WHICH HAS B EEN HELD OUT TO THE ASSESSEE IN TERMS OF CLAUSE (A) OF EXPLANATION TO SECTION 80 IA(4) AND EVEN AFTER FACING THE BRUNT OF THE ORDER OF THE TAX AUTHORITIES U/S 263 T HE ASSESSEE FINDS ITS CONFIDENCE SHAKEN WHEN DESPITE THE FACT THAT THIS I S NOT THE INITIAL YEAR THE TAX AUTHORITIES STILL WANT TO DEPART FROM THE ACCEPTED POSITION. 3.1.3. REVERTING TO THE FACTS OF THE CASE IT WAS SUBMITT ED THAT THE STATE GOVERNMENT, IN EXERCISE OF THE POWER AS VESTED UNDE R SECTION 3 OF THE SAID ACT, CONSTITUTED, JUST PRIOR TO LAUNCHING OF THE PROJECT , AN IMPLEMENTING AUTHORITY, NAMELY, 'TAJ EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTH ORITY' (IN SHORT TEA). THE LENGTH OF THE EXPRESSWAY CONNECTING NOIDA WITH AGRA WAS ABOUT 160 KMS AND IT WAS TO PASS THROUGH A VIRGIN AREA ALONG THE YAMU NA RIVER. THE INTEGRATED LAND AND TOLL ROAD DEVELOPMENTAL ACTIVITY IT WAS S UBMITTED WAS VISUALIZED AND CONTEMPLATED WOULD BRING THE BENEFITS OF GROWTH AND DEVELOPMENT BY THIS INFRASTRUCTURAL FACILITY TO THIS AREA ALONG TH E YAMUNA RIVER. FOR THE SAID PURPOSES IT WAS GRANTED RIGHTS FOR LAND DEVELO PMENT OF 25 MILLION SQ. MTRS OF LAND ON 90 YEARS LEASE ALONG THE PROPOSED 1 00 METERS WIDE EXPRESSWAY FOR CREATING COMMERCIAL, AMUSEMENT, INDU STRIAL, INSTITUTIONAL AND RESIDENTIAL DEVELOPMENT TO THE SPV COMPANY. TEA ACCORDINGLY IT WAS SUBMITTED PROVIDED THE 'LAND FOR DEVELOPMENT' ALONG THE EXPRESSWAY AT FIVE OR MORE LOCATIONS OF WHICH ONE LOCATION WAS IN NOIDA OR GREATER NOIDA I.T.A .NO.-414/DEL/2015 PAGE 9 OF 95 WITH AN AREA OF 5 MILLION SQ. MTRS. THE AFORESAID L AND FOR DEVELOPMENT IT WAS SUBMITTED WAS IN ADDITION TO THE LAND FOR CONST RUCTION OF EXPRESSWAY AND WAS AN INTRINSIC PART OF THE INFRASTRUCTURE FAC ILITY PROJECT. 3.1.4. AN ASSIGNMENT AGREEMENT IT WAS SUBMITTED WAS EXECUT ED AMONGST JAL, JIL AND TEA FOR ASSIGNMENT OF THE CONCESSION AGREEM ENT IN THE NAME OF JAYPEE INFRATECH LIMITED (JIL). 3.1.5. THE MAIN OBJECTS OF JAYPEE INFRATECH LIMITED IT WAS SUBMITTED WERE TO IMPLEMENT ALL THE OBJECTS OF THE CONCESSION AGREEME NT DATED 7/2/2003 BETWEEN JAIPRAKASH INDUSTRIES LTD. (NOW JAIPRAKASH ASSOCIATES LTD.) AND TAJ EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHORITY (TEA). ELABORATING THE PROJECT DETAILS IT WAS SUBMITTED THAT THE CONCEPT OF THE PR OJECT TAJ EXPRESSWAY WAS AN OUTCOME OF THE POLICY DECISION OF THE GOVERNMENT OF U.P. UNDER THE STATUTE CALLED U.P. INDUSTRIAL AREA DEVELOPMENT ACT, 1976 ( UP. ACT NO OF 1976). THESE FACTS HAVE BEEN FULLY EXAMINED AND CONSIDERED BY THE INQUIRY COMMISSION HEADED BY SHRI. SIDHESHWAR NARAYAN, JUST ICE (RETIRED) HIGH COURT PATNA AND CALCUTTA, ARID TEA, M/S JAL INCORPO RATED A SPECIAL PURPOSE VEHICLE (SPV) VIZ. JAYPEE INFRATECH LIMITED (AS JIL) FOR DEVELOPMENT, OPERATION AND MAINTENANCE OF 6 LANE AC CESS CONTROLLED EXPRESSWAY. 3.1.6. IT WAS SUBMITTED THAT CONSIDERATION FOR THE INFRAST RUCTURE FACILITY WAS PRIMARILY LAND FOR DEVELOPMENT AS IT WAS DECI DED THAT CONCESSIONAIRE (JIL) WAS ENTITLED TO COLLECT AND RE TAIN THE FEE AND TOLL FROM THE USERS OF THE EXPRESSWAY FOR CONCESSION PERIOD OF 36 YEARS AND A LSO I.T.A .NO.-414/DEL/2015 PAGE 10 OF 95 RETAIN THE AMOUNTS FROM RIGHTS TO FURTHER LEASE OUT THE DEVELOPED/UNDEVELOPED LAND (AT FIVE OR MORE LOCATIONS WITH AN AREA OF 5 M ILLION SQ. MTRS. PER LAND PARCEL) TO SUBLEASES/END-USER. IT WAS AGREED THAT T HE TOLL FEE TO BE CHARGED FROM THE CUSTOMERS WAS NOT TO EXCEED THE FEE AS MAY HAVE BEEN NOTIFIED BY GOUP (GOVERNMENT OF STATE OF UP). 'LAND FOR DEVELOPMENT' ACCORDINGLY IT WAS SUBMITTED IS A CONCESSION LIKE THE TOLL FEE SINCE T HE TOLL FEE ALONE IT WAS WELL UNDERSTOOD WOULD NOT HAVE BEEN ABLE TO ENSURE POSITIVE RETURN ON EQUITY ON THE PROJECT. 3.1.7. ELABORATING THE POINT MADE EARLIER THAT THE ISSUE HAS ALREADY BEEN SUBJECTED TO INTENSE JUDICIAL SCRUTINY BY WAY OF LI TIGATION IN A PIL THRUST UPON THE ASSESSEE WHERE AGAIN REFERRING TO ADMITTED FACT S ON RECORD IT WAS SUBMITTED A PUBLIC INTEREST LITIGATION WAS FILED ALLEGING THA T LAND HAS BEEN TRANSFERRED FOR INADEQUATE CONSIDERATION ETC. OF ACQUISITION OF LAND AND DESPITE THE VARIOUS KINDS OF ALLEGATIONS MADE AGAIN ST THE ASSESSEE AND THE STATE ETC. AMONGST OTHERS THE PROJECT WAS CLEARED B Y THE INQUIRY COMMISSION REPORT AND IN THE PIL ALSO THE ISSUE WAS DECIDED IN ASSESS EES FAVOUR AND IN FAVOUR OF THE STATE GOVERNMENT OF U. P. THE APEX CO URT IT WAS SUBMITTED IN THE SAID CASE OF NAND KISHORE GUPTA & ORS V. STATE OF UP & OTHERS HELD THAT THE EXPRESSWAY IS A WORK OF IMMENSE PUBLIC IMPORTANCE A ND THE CREATION OF LAND PARCELS WOULD GIVE IMPETUS TO THE INDUSTRIAL DEVELO PMENT OF THE STATE CREATING MORE JOBS AND HELPING THE ECONOMY AND THEREBY HELPI NG THE GENERAL PUBLIC. 3.1.8. THE INQUIRY COMMISSION IT WAS SUBMITTED WAS APPOINTED BY THE GOVERNOR OF UP BY A NOTIFICATION NO. 1889/77-4-2004 -10N/2004, LUCKNOW I.T.A .NO.-414/DEL/2015 PAGE 11 OF 95 DATED JUNE 22, 2004 TO ASCERTAIN THE FACTS AND ADDRESS THE POSITION OF TRANSPARENCY OF THE PROJECT. RELYING ON THE FINDING S OF THE COMMISSION OF INQUIRY EXTRACTED IN THE SYNOPSIS FILED AT PAGE 9 I T WAS SUBMITTED THAT THE COMMISSION OF INQUIRY UNDER THE CHAIRMANSHIP OF SHR I SIDHESHWAR NARAYAN, JUSTICE (RETIRED) HIGH COURT PATNA AND CALCUTTA IN UNAMBIGUOUS TERMS CONCLUDED THAT 'CONSIDERING THE CAPITAL COST, GESTATION PERIOD AND THE UNCERTAINTIES INVOLVED IN THE REVENUE FROM TOLL COL LECTION, INFLATION ETC, IT WAS NECESSARY TO STRENGTHEN THE ECONOMIC VIABILITY OF THE PROJECT BY SOME MECHANISM AND, ACCORDINGLY, IT WAS DECIDED TO PROVI DE 2500 HECTARES OF LAND FOR DEVELOPMENT TO THE SUCCESSFUL BIDDER ALONG THE EXPRESSWAY'. IT WAS SUBMITTED THAT THE COMMISSION FURTHER HELD THAT : 'THE TAJ EXPRESSWAY PROJECT BEING A LAND MARK EVENT IN THE INDUSTRIAL D EVELOPMENT OF STATE OF U.P. IS OF IMMENSE PUBLIC UTILITY AND ALSO IN THE NATIONAL INTEREST'. 3.1.9. TECHNO ECONOMIC FEASIBILITY REPORT (TEFR) IT WAS SU BMITTED AS SUBMITTED BY THE ASSESSEE TO YEA FURTHER ADDRESSES THE FACT THAT THE TOLL FEE HAS A 'NEGATIVE' NET PRESENT VALUE (NPV) OF THE TOL L FEE DURING THE ENTIRE CONCESSION PERIOD. 3.2. IN THE SAID BACKGROUND IT WAS SUBMITTED THAT CONSI DERING THE VERY SAME FACTS AND THE VERY SAME ACTIVITY THE ASSESSING OFFI CER IN 200910 ASSESSMENT YEAR BY AN ORDER DT. 30.12.2011 PASSED U/S 143 (3) ALLOWED DEDUCTION CLAIMED U/S 80IA. THE SAID YEAR IT WAS SUBMITTED W AS THE INITIAL YEAR. IN THE NEXT ASSESSMENT YEAR, IT WAS SUBMITTED A DIFFERENT ASSESSING OFFICER IN 2010 11 ASSESSMENT YEAR AGAIN ASSESSED THE INCOME OF THE ASSESSEE BY AN ORDER I.T.A .NO.-414/DEL/2015 PAGE 12 OF 95 PASSED U/S 143 (3) AND ALLOWED THE DEDUCTION CLAIME D U/S 80IA. THUS WHERE IN THE TWO IMMEDIATELY PRECEDING ASSESSMENT YEAR, T HE REVENUE HAS ACCEPTED THE CLAIM OF DEDUCTION BY ORDERS PASSED BY TWO DIFFERENT ASSESSING OFFICERS THAT THE ASSESSEES ACTIVITY COM ES UNDER THE UMBRELLA AVAILABLE UNDER SECTION 80IA(4) EXPLANATION (A) THU S THE OCCASION TO VARY THE STAND IN THE YEAR UNDER CONSIDERATION IT WAS SU BMITTED DOES NOT ARISE. ADDRESSING THE FACTUAL HISTORY IT WAS SUBMITTED THA T FOR THE FIRST TIME IN 2009- 10 ASSESSMENT YEAR THE ORDER DATED 30.12.2011 U/S 143(3) WAS SET ASIDE BY THE CIT, NOIDA BY AN ORDER U/S 263 DATED 30.03.2014 HOLDING THAT THERE HAS BEEN NON-APPLICATION OF MIND BY THE AO AS THE ORDER WAS HELD TO BE BASED ON ERRONEOUS VIEWS AND NON-APPRECIATION OF FACTS. THE SAID ORDER IT WAS SUBMITTED HAS BEEN QUASHED BY THE ITAT. RELYING UP ON THE ORDER DATED 13.04.2015 IN ITA NO. 3339/DEL/2014 IT WAS SUBMITTED THAT THE ITAT EXAMINED THESE ISSUES IN DETAIL AND BY A DETAILED O RDER CAME TO THE CONCLUSION THAT THE BENEFIT GRANTED BY THE LEGISLATURE VIDE CL AUSE (A) OF EXPLANATION TO SECTION 801A(4) OF THE ACT CANNOT BE DENIED TO THE ASSESSEE. RELYING ON THE SAID ORDER IT WAS SUBMITTED THAT VARIOUS DECISIONS OF TH E DIFFERENT COURTS HAD BEEN TAKEN INTO CONSIDERATION BY THE ITAT AND THE ARGUME NTS ON THE PRINCIPLES OF STATUTORY INTERPRETATION WHICH WOULD APPLY HAVE ALL BEEN CONSIDERED AND DISCUSSED AT LENGTH IN THE SAID ORDER IN ORDER TO A RRIVE AT A CONCLUSION TO QUASH THE ORDER U/S 263. 3.3. ACCORDINGLY ON THE BASIS OF THESE FACTS AVAILABLE ON RECORD IT WAS HIS SUBMISSION THAT THE ISSUE IS A FULLY COVERED ISSUE AS FAR AS THE ASSESSEE IS I.T.A .NO.-414/DEL/2015 PAGE 13 OF 95 CONCERNED WHICH IS WHY ATTENTION RIGHT AT THE OUTSE T HAS BEEN INVITED TO GROUND NOS. 9 TO 12 AS THE ASSESSEE IS CONFIDENT TH AT THE ASSESSEE NEED NOT ARGUE THE GROUNDS RELATABLE TO THE ALTERNATE PRAYER ADDRESSING SECTION 80IA(6) AND CONSEQUENTLY TO SEEK ADMISSION OF ADDITIONAL EV IDENCE WHICH HAS BEEN DENIED BY THE CIT(A). 3.4. IT WAS HIS SUBMISSION THAT THE ACTIVITY OF THE ASS ESSEE REVOLVES AROUND A TOLL ROAD AND IT IS THE INITIAL YEAR WHICH HAS TO BE SEEN IN REGARD TO THE DEDUCTION AVAILABLE UNDER SECTION 80IA. THE DEPARTMENTAL ARGUMENT THAT THE DEDUCTION WAS TO BE DENIED TO THE ASSESSEE BECA USE THE TOLL REVENUES HAD NOT BEEN GENERATED IT WAS ARGUED IS INCORRECT. HAD THIS BEEN THE INTENTION OF THE LEGISLATURE THEN THE SPECIFIC WORD S DEVELOPING OR MAINTAINING AND OPERATING OR DEVELOPING, OPERATING AND MAINTAIN ING WOULD NOT HAVE BEEN NECESSITATED AND ONLY THE WORD OPERATING WOULD HAVE BEEN USED. IT WAS HIS SUBMISSION THAT THE SPECIFIC SCHEME AND ACTIVITY HA S BEEN LOOKED INTO BY THE JUDICIAL INQUIRY COMMISSION CONSTITUTED UNDER THE C HAIRMANSHIP OF RETIRED JUSTICE SH. SIDHESHWAR NARAYAN AND IT WAS ALSO A SU BJECT MATTER OF LITIGATION BY A PIL FILED BEFORE THE HONBLE APEX COURT AND IN THE SAID DECISION OF NAND KISHORE GUPTA AND OTHERS VS STATE OF UP AND OTHERS. CONSIDERING THE SPECIFIC TERMS AND CONDITIONS OF THE INTEGRATED PROJECT. 3.5. IT WAS HIS SUBMISSION THAT THE LEGISLATURE HAS MAD E A DISTINCTION BETWEEN A HIGHWAY AND A TOLL ROAD AND THE MODAL ITIES FOR BOTH WOULD DIFFER WHEREAS IN A HIGHWAY THE PAYMENT FOR CONSTRUCTION M AY COME IN INSTALLMENTS. IN A TOLL ROAD ON THE OTHER HAND THE REVENUES WOULD ONLY BE GENERATED WHEN IT I.T.A .NO.-414/DEL/2015 PAGE 14 OF 95 IS OPERATIONAL AND FULLY CONSTRUCTED. IT WAS HIS SUBMISSION THAT THE AMOUNTS OF FUNDS REQUIRED TO CONSTRUCT THE QUALITY OF TOLL ROAD CONTEMPLATED AND VISUALIZED WAS ADMITTEDLY MONUMENTAL AND ACCORDINGL Y INSTEAD OF MAKING CASH AVAILABLE TO THE ASSESSEE COMPANY I.E. THE COM PANY WHICH WAS FORMED AS A SPECIAL PURPOSE VEHICLE (AS SPV)FOR D EVELOPING OPERATING AND MAINTAINING THE SIX LANE TOLL ROAD BETWEEN NOID A AND AGRA ALONG WITH SERVICE ROADS AND ASSOCIATED STRUCTURES WAS GRANTED 5 PARCELS OF LAND THEREBY ALLOWING THE ASSESSEE TO DEVELOP AND UTILISE THE PR OFITS SO GENERATED FROM THE DEVELOPMENT OF THESE LANDS FOR UTILISING IN THE CON STRUCTION OF THE TAJ EXPRESSWAY. IT WAS HIS SUBMISSION THAT IT IS NOBODY S CASE THAT THE EXPRESSWAY HAS NOT BEEN BUILT. THE EXPRESSWAY HAS BEEN BUILT M EETING THE HIGH STANDARDS REQUIRED. IT WAS HIS SUBMISSION THAT LAND FOR DEVELOPMENT WAS THE CONCESSION AS ADMITTEDLY THE TOLL-FEE ALONE COULD N OT BE VISUALIZED AS BEING CAPABLE TO ENSURE POSITIVE RETURN ON EQUITY O N THE PROJECT. ATTENTION WAS INVITED TO SECTION 80IA SUBSECTION (1) AND (2)T HEREOF. INVITING ATTENTION TO THE PROVISO TO SUBSECTION (2) OF SECTION 80IA IT WA S SUBMITTED THAT 80IA(2) IS SUBSERVIENT TO 80IA(4) AND IS TO BE SEEN IN THE CON TEXT OF SECTION 80IA(4). REFERRING TO THE SAID SUB-SECTION IT WAS SUBMITTED THAT THE STATUTE CONTEMPLATED THE SITUATIONS REALISTICALLY AND MADE THE DEDUCTION AVAILABLE TO ANY ENTERPRISE CARRYING ON THE BUSINESS OF DEVELOPI NG; OR OPERATING AND MAINTAINING; OR DEVELOPING, OPERATING AND MAINTAIN ING ANY INFRASTRUCTURE FACILITY. RELYING ON ISWAR SINGH BINDRA 1968 AIR 1450 (SC) IT WAS SUBMITTED THAT THE WORD AND HAD TO BE READ AS OR. REFER RING TO THE WRITTEN I.T.A .NO.-414/DEL/2015 PAGE 15 OF 95 SUBMISSIONS PLACED ON RECORD IT WAS SUBMITTED THAT THE HONBLE COURT HELD IN THE CONTEXT OF INTERPRETATION OF STATUTE THAT IN CE RTAIN CASES THE WORD AND HAD TO BE READ AS OR. THE HONBLE APEX COURT QUOTED FROM STROUDS JUDICIAL DICTIONARY, 3 RD ED TO STATE THAT SOMETIME AND BY FORCE OF CONTENTS, READS AS OR. THEY ALSO QUOTED MAXWELL ON INTERPRETATION OF STATUE, 11 TH ED TO HOLD THAT TO CARRY OUT THE INTENTION OF THE LEGISLATURE, IT IS O CCASIONALLY FOUND NECESSARY TO READ OR OR AND ONE FOR THE OTHER. THIS VIEW OF THE APEX COURT IT WAS SUBMITTED HAS BEEN ONCE AGAIN REITERATED BY THE HONBLE SUPRE ME COURT IN A RECENT DECISION IN THE CASE OF SPENTEX INDUSTRIES LTD. V. COMMISSIONER OF CENTRAL EXCISE, 920150 62 TAXMANN.COM 101 (SC). 3.5.1. THE CIT, ORISSA VS GANGANAM CHAPOLIA [1976] 103 ITR 613 (ORI) F BENCH DECISION WAS ALSO RELIED UPON SO AS TO SUBMIT THAT IT HAS BEEN HELD BY THE COURT THAT THE WORD AND SHOULD BE CONSTRUED AS OR WHERE THE CONTEXT SO REQUIRES. 3.5.2. ACCORDINGLY IT WAS SUBMITTED THAT THE WORDS DEVELO PS AND BEGINS TO OPERATE. IN SECTION 80IA(2) IN THE CONTEXT OF SECTION 80IA(4) THE WORD AND IN 80IA(2) HAS TO BE READ AS AND/OR IN THE CONTEXT OF 80IA(4) IN THE ALTERNATIVE TO BE OR TO BE READ AS OR SO AS TO AVOID UNWORKABLE, UNREASONABLE OR ABSURD INTERPRETATION WHICH IS NOT RECONCILABLE WITH THE REST OF THE STATUTE/SECTION 80IA(4). IT WAS SUBMITTED THAT ONLY WHEN AND IN 80IA(2) IS READ AS OR THAT THE PROVISIONS OF S ECTION 80IA(4)(I) AND 80IA(2) WOULD BE IN HARMONY, WORKABLE AND BE IN ACC ORDANCE WITH THE TEXT, CONTEXT AND OBJECT OF THE PROVISIONS. ACCORDINGLY IT WAS HIS I.T.A .NO.-414/DEL/2015 PAGE 16 OF 95 SUBMISSION THAT THE LEGISLATURE DOES NOT USE SUPERF LUOUS WORDS AND BY CONTEMPLATING BOTH SITUATIONS THAT IS DEVELOPS OR O PERATES THE ASSESSEE IS ENTITLED TO THE DEDUCTION. THE MERE FACT THAT THE ASSESSEE IS DEVELOPING ITSELF ENTITLES THE ASSESSEE TO THE DEDUCTION AND THE REVE NUE IS NOT CORRECT IN ITS INSISTENCE UPON THE ARGUMENT THAT THE DEDUCTION IS AVAILABLE ONLY IF THE TOLL FEE IS COLLECTED AND BECAUSE THE TOLL-FEE IS NOT COLLE CTED IN THE YEAR UNDER CONSIDERATION THE BENEFIT OF THE DEDUCTION IS NOT A VAILABLE. IT WAS ALSO HIS SUBMISSION THAT IF THE ARGUMENT OF THE REVENUE WAS TO BE ACCEPTED THEN THERE WAS NO OCCASION FOR THE LEGISLATURE TO INCLUDE THE WORD DEVELOPS. 3.5.3. THE SAID REASONING IT WAS SUBMITTED WAS NOT BASED O NLY ON THE ARGUMENTS ADVANCED IN THE PRESENT PROCEEDINGS BUT I S ALSO BASED ON THE FINDING ARRIVED AT BY THE ITAT IN THE INITIAL YEAR ITSELF I.E. 200910 ASSESSMENT YEAR WHICH IS WHY THE ASSESSEE HAS TAKEN THE POSITI ON THAT THE ISSUE IS COVERED IN ITS FAVOUR. 3.6. INVITING FURTHER ATTENTION TO SUB-SECTION SECTION (4) OF SECTION 80IA AND EXPLANATION (A) AND (B) THEREUNDER IT WAS HIS SUBMI SSION THAT INFRASTRUCTURE FACILITY HAS BEEN DEFINED AS A ROAD INCLUDING TOLL ROAD, A BRIDGE OR A RAIL SYSTEM ETC UNDER CLAUSE (A) ; AND IN EXPLANATION (B) IT HAS BEEN DEFINED AS A HIGHWAY PROJECT INCLUDING HOUSING OR OTHER ACTIVITI ES AN INTEGRAL PART OF THE HIGHWAY PROJECT. IN THE FACTS OF THE PRESENT CASE IT WAS HIS SUBMI SSION THAT RIGHT FROM THE JUDGEMENT OF THE APEX COURT IN THE P IL LAUNCHED AGAINST THE ASSESSEE UP TO THE ITAT IT HAS BEEN HELD AT ALL FO RUMS THAT THE ASSESSEE IS ENGAGED IN AN INTEGRATED TOLL PROJECT. REFERRING TO THE FACTS IT WAS SUBMITTED I.T.A .NO.-414/DEL/2015 PAGE 17 OF 95 THAT THE OVERALL DEVELOPMENT IN THE AREA IS DIRECTL Y RESPONSIBLE DUE TO THE DIRECT ACTIVITIES OF THE ASSESSEE AND ASSESSEE ALONE AND T HIS IS AN ADMITTED FACT ON RECORD. ACCORDINGLY THE REVENUE CANNOT BE ALLOWED TO DEFEAT THE PROVISIONS BY MISREADING AND MISAPPLYING THE PROVISIONS TO THE FACTS OF THE ASSESSEE WHO ACTING ON THE PROMISE HELD OUT BY THE LEGISLATURE T O THE ASSESSEE UNDERTOOK THIS HERCULEAN ACTIVITY TO DEVELOP IN THE BARREN UN DEVELOPED LAND AN EXPRESSWAY COMPETING WITH THE HIGHEST STANDARDS IN THE WORLD. THE TAX AUTHORITIES IT WAS SUBMITTED IN THESE CIRCUMSTANCES ARE NOT JUSTIFIED IN ATTEMPTING TO WITHDRAW THE LEGISLATIVE BENEFIT AVAI LABLE TO THE ASSESSEE ON ITS WHIMS AND MISREADING THE PROVISIONS AND DISCARD ING PRECEDENT AVAILABLE. IT WAS HIS SUBMISSION THAT WITHOUT ANY EXAGGERATI ON AND WITH NO DESIRE TO SEEK SYMPATHY HE WOULD ONLY LIKE TO ADDRE SS THE BARE FACTS WHICH ARE COMMON KNOWLEDGE THAT IN THIS TASK WHICH THE ASSESS EE HAS UNDERTAKEN AND IS CARRYING ON, THE ASSESSEE HAS FACED NOT ONLY VARIOU S LITIGATIONS AND THE DEPARTMENTAL ACTIONS AND VARIOUS UNSAVOURY CRITICI SMS BUT HAS ALSO HIT DOLDRUMS ON ACCOUNT OF THE PECULIAR ECONOMIC CYCLE OF THE DOWNTURN IN THE OVERALL WORLD ECONOMIC CYCLE IN THE INDUSTRY HAS FA CED VARIOUS OTHER SITUATIONS WHICH THE ASSESSEE WHEN IT UNDERTOOK THE TASK NEVER VISUALIZED WOULD BE VISITED UPON IT. IT WAS SUBMITTED THAT THE ASSESSE E NOT WILLING TO HIDE BEHIND EXCUSES AND CHANGED REALITIES HAS FULL ON TACKLED T HE IMPEDIMENTS AND TAKEN THEM IN ITS STRIDE TO ENSURE THAT ITS WORK ETHICS I S NOT COMPROMISED AND HAS DONE AND CONTINUES TO FOLLOW THROUGH. HOWEVER IN T HESE FACTS TO STILL BE SUBJECTED TO THE CONCERTED DEPARTMENTAL ACTIONS TO MISREAD THE PROVISIONS OF I.T.A .NO.-414/DEL/2015 PAGE 18 OF 95 THE ACT AND THAT TOO NOT IN THE FIRST YEAR BUT IN T HE SUBSEQUENT YEARS IT WAS SUBMITTED SHAKES THE CONFIDENCE OF THE ASSESSEE AS IT IS AN ACT OF HITTING BELOW THE BELT. THE ISSUE IT WAS SUBMITTED HAS ALREADY BE EN EXAMINED BY THE ITAT AND THE ORDER QUASHING THE REVISIONAL PROCEEDINGS W AS HEAVILY RELIED UPON; RELIANCE WAS ALSO PLACED UPON THE TWO CONSECUTIVE A SSESSMENT ORDERS U/S 143(3) PASSED BY TWO SEPARATE ASSESSING OFFICER; IT WAS SUBMITTED THAT THE SAID AUTHORITIES HAVE ALREADY CONSIDERED THE RELEVANT PR OVISIONS MOREOVER WHERE ALL THESE ISSUES HAVE BEEN AGAIN DISCUSSED AT LENGTH AN D ARGUED BY BOTH THE SIDES BEFORE THE ITAT. IT WAS SUBMITTED THAT WHEN THESE FACTS ARE COUPLED WITH THE VARIOUS DECISIONS WHICH HAVE BEEN CONSIDERED BY THE ITAT AND WOULD BE REFERRED TO AGAIN HEREIN ALSO WHICH HAVE ALSO BEEN CONSIDERED BY THE ITAT, IT WAS HIS SUBMISSION THAT THE CLAIM OF THE ASSESSEE H AS TO BE ALLOWED. HEAVY RELIANCE WAS PLACED UPON THE SAID DECISION ON THE B ASIS OF WHICH IT WAS ARGUED THAT THE ISSUE IS COVERED IN ASSESSEES FAVOUR. HO WEVER, THE LD AR WAS REQUIRED TO SPECIFICALLY ADDRESS THE IMPUGNED ORDER AND SPECIFICALLY POINT OUT THE INFIRMITIES WHICH ARE BEING CHALLENGED IN THE P RESENT PROCEEDINGS. 3.7. IN RESPONSE TO THE SAME, IT WAS HIS SUBMISSION THAT THE CIT(A) IN APPEAL HAS LARGELY REPEATED WHAT THE ASSESSING OFFICER HAS OBSERVED. IT WAS ALSO HIS SUBMISSION THAT THE LD. CIT(A) DID NOT HAVE THE BE NEFIT OF THE ORDER OF THE ITAT AS REFERENCE TO THE SPECIFIC DATES OF THE RESPECTIV E ORDERS IT WAS SUBMITTED WOULD SHOW THAT THE ORDER OF THE ITAT CAME SUBSEQUE NTLY. 3.7.1. REFERRING TO THE IMPUGNED ORDER IT WAS HIS SUBMISS ION THAT AFTER REPRODUCING THE FACTS AS FOUND BY THE ASSESSING OFF ICER, THE SUBMISSIONS OF THE I.T.A .NO.-414/DEL/2015 PAGE 19 OF 95 ASSESSEE HAVE BEEN REPRODUCED VERBATIM BY THE CIT(A ) AND THEREAFTER FROM PAGES 60 ONWARDS, THE CIT(A) HAS COME TO THE CONCLU SION WHEREIN AFTER REPRODUCING THE SPECIFIC SECTION, HE HAS REFERRED T O THE FACT THAT THE ASSESSEE HAS ADMITTED THAT TOLL ROAD WAS INAUGURATED ON 09.0 8.2012 AN EVENT OCCURRING IN 2013-14 AY. ACCORDINGLY WITHOUT ADDRESSING THE DECISIONS RELIED UPON AND THE ARGUMENTS ON THE PROVISIONS OF THE ACT ADVA NCED BY THE ASSESSEE IT WAS SUBMITTED THE CIT(A) HE HAS PROCEEDED TO DEN Y THE RELIEF CLAIMED SOLELY RELYING ON THIS FACT AND MISREADING THE WORD S USED BY THE STATUTE, IT WAS SUBMITTED THAT THE CIT(A) HAS CONCURRED WITH THE AS SESSING OFFICER TO HOLD THAT THE EXEMPTION CLAIMED CAN BE ALLOWED ONLY BY INVOKI NG THE PROVISIONS OF SECTION 80IA(6) WITHOUT ADDRESSING THE ARGUMENTS AD VANCED. 3.7.2. IT WAS SUBMITTED THAT THEREAFTER REFERRING TO THE SAID FACT, A DISCUSSION ON HOW THE AO HAS PROCEEDED AND WITHOUT CARING TO A DDRESS THE FACTS, ARGUMENTS AND DECISIONS RELIED UPON ON BEHALF OF TH E ASSESSEE WHICH THOUGH HAVE BEEN REPRODUCED BY HIM HE HAS PROCEEDED TO DI SMISS THE ASSESSEES CLAIM AND ALSO DISMISSED THE PRAYER FOR MOVING ADDI TIONAL EVIDENCE RELYING ON SECTION 119 SUBSECTION (C) OF THE INCOME TAX ACT 19 61 IGNORING THE FACT THAT RULE 46A OF THE INCOME TAX RULES PERMIT AND CONTEMP LATE SITUATIONS WHERE ASSESSEE CAN IN CERTAIN SITUATION PETITION FOR FRES H EVIDENCE. THE NEED FOR FILING FRESH EVIDENCES IT WAS SUBMITTED AROSE AS BY WAY OF ABUNDANT CAUTION THE ASSESSEE WITHOUT PREJUDICE TO THE MAIN CLAIM RAISED THE ALTERNATE GROUND FOR WHICH FRESH EVIDENCE WAS NECESSARY. HOWEVER, THE C IT(A) DISMISSED THE MAIN I.T.A .NO.-414/DEL/2015 PAGE 20 OF 95 GROUND ALONGWITH THE ALTERNATE WITHOUT PREJUDICE GR OUND RAISED BY WAY OF ABUNDANT CAUTION HOLDING AS UNDER:- TAKING ALL THE ABOVE INTO CONSIDERATION AND KEEPI NG IN VIEW THE FACTS OF THE CASE AND THE RELEVANT PROVISIONS OF THE LAW, I AM CONVINCED THAT APPELLANTS CLAIM FOR DEDUCTION U/S 80IA IN RESPECT OF VARIOUS HEADS OF INCOME DECLARED IN THE RETURN OF INCOME ARE NOT COV ERED BY THE PROVISIONS CONTAINED IN SECTIONS 80IA(4) AS WELL AS 80IA(6). ACCORDINGLY, AOS ACTION IN REJECTING THE CLAIM FOR SUCH DEDUCTI ON IS UPHELD. 3.8. ADDRESSING THE REMAINING GROUNDS, ATTENTION WAS IN VITED TO THE SEPARATE WRITTEN SUBMISSIONS ADDRESSING GROUNDS NOS. 5, 6 AN D 7. REFERRING TO THE FACTS AND THE DECISIONS RELIED UPON AS SET OUT AT P AGES 2 TO 4 OF THE SUBMISSIONS IN PARA IS 1.1 TO 1.7 THE LD. AR SUBMIT TED THAT THE FOLLOWING INCOME OF RS.19,92,85,259/- HAS BEEN TREATED AS OT HER INCOME NOT ENTITLED FOR DEDUCTION U/S 80IA BY THE TAX AUTHORITIES:- 1. INTEREST RS.14,50,06,637 2. PROFIT ON ACCOUNT OF CURRENCY RS.35,29,690 FLUCTUATIONS 3. OTHER INCOME RS.5,07,48,932 TOTAL RS.19,92,85,259 3.8.1. IT WAS SUBMITTED BY THE LD.AR THAT THE TAX AUTHORIT IES HAVE IGNORED THE FACT THAT THE ASSESSEE IS FORMED AS A SINGLE OBJECT COMPANY. THE INCOME FROM SALE / DEVELOPMENT OF LAND AND THE OTHER INCOM E IN ITS P&L ACCOUNT IS AN INTEGRAL PART OF THE BUSINESS INCOME OF THE INFRASTRUCTURE FACILITY AND BEING BUSINESS INCOME IT IS ELIGIBLE FOR DEDUCT ION UNDER SECTION 80IA. IT WAS SUBMITTED THAT ADMITTEDLY THE ASSESSEE IS CA RRYING ON INFRASTRUCTURE DEVELOPMENT. IN THE FACTS OF THE CASE, INTEREST IN COME ON FACTS IT WAS SUBMITTED HAS BOTH BEEN PAID AND RECEIVED AND IS RE LATED ONLY TO THE INFRASTRUCTURE DEVELOPMENT BUSINESS AND HAS A NEXUS WITH THE BUSINESS. THE I.T.A .NO.-414/DEL/2015 PAGE 21 OF 95 SOURCE OF FDR IT WAS SUBMITTED IS THE REAL ESTATE D EVELOPMENT AS PART OF THE ASSESSEE'S INFRASTRUCTURE FACILITY AND THE SAME ARE PART OF OVERALL FINANCIAL ASSETS USED FOR FINANCIAL FACILITIES FOR THE INFRAS TRUCTURE FACILITY. HENCE, INTEREST INCOME EARNED ON THE SAID FDR IT WAS SUBMITTED IS I NCOME DERIVED FROM INFRASTRUCTURE FACILITY BUSINESS. ACCORDINGLY AS TH ERE IS CLEAR NEXUS THE INTEREST PAID HAS TO BE NETTED OFF FROM THE INTEREST EARNED AS BOTH HAVE BEEN USED FOR THE COMMON BUSINESS AND COMMON OBJECTIVE. FOR NETTI NG THE ASSESSEE RELIES ON CIT V. EASTERN TAR P. LTD.301 ITR 427 (JHAR); CIT V . PAWAN KUMAR JAIN 298 ITR 443 (DEL); CIT V NECTAR LIFE SCIENCES LTD, 203 TAXMANN 318 (DEL); CIT V. SHAHI EXPORT HOUSE 195 TAXMAN 163 (DEL); CIT VS LOK HOLDINGS 308 ITR 356 (BOM); AND ACG ASSOCIATED CAPSULES (P) LTD. V. CIT 343 ITR 89 (SC). 3.8.2. THE FDRS IT WAS SUBMITTED WERE PART OF TOTAL CURRE NT ASSETS WHICH WERE SOURCED FROM REAL ESTATE BUSINESS AND NCDS AS PART OF WORKING CAPITAL. IT WAS SUBMITTED THAT THEY WERE CHARGED AS CURRENT ASSET T O BANKS FOR FINANCING FACILITY AND THE INCOME WAS USED FOR THE BUSINESS OF INCOME FROM THE INTEGRATED INFRASTRUCTURE FACILITY AND ITS BUSINESS . IT WAS SUBMITTED THAT NO SUCH DISALLOWANCE WAS MADE IN 2009-10 AND 2010-11 A Y AND EVEN IN 2009-10 AY AFTER GIVING THE APPEAL EFFECT TO THE OR DER OF THE ITAT, NO SUCH DISALLOWANCE WAS MADE BY THE AO AND THE AMOUNT HAS BEEN FULLY ALLOWED AS BUSINESS INCOME BY THE AO AS DEDUCTION U /S 80IA. 3.8.3. ADDRESSING FOREIGN CURRENCY FLUCTUATION, IT WAS SUB MITTED THAT THE SAME IS IN THE COURSE OF BUSINESS OF THE INFRASTRUCTURE FACILITY RELATING TO AMOUNTS RECEIVED FROM BUSINESS CONSTITUENTS AND SHOULD BE A SSESSED AS BUSINESS I.T.A .NO.-414/DEL/2015 PAGE 22 OF 95 INCOME. RELIANCE WAS PLACED ON VARIOUS DECISIONS O F COURTS INCLUDING CIT VS RACHA UDYOG 230 CTR 72 (BOM) WHEREIN IT BEEN HELD CONSIDERING THE DECISION OF THE APEX COURT IN CIT VS LIBERTY INDIA THAT GAIN S FROM EXCHANGE RATE FLUCTUATION ARE TO BE INCLUDED IN TOTAL TURNOVER OF ASSESSEE FOR COMPUTING DEDUCTION U/S 80HHC. IN THE FACTS OF THE PRESENT CASE ALSO IT WAS SUBMITTED THE INCOME HAS RESULTED IN THE COURSE OF THE BUSINE SS OF INFRASTRUCTURE FACILITY AND AS SUCH THE INCOME IS DERIVED FROM THE BUSINESS OF ELIGIBLE UNDERTAKING AND IS EXEMPT U/S 80IA. RELIANCE WAS ALSO PLACED ON CIT V. AMBER EXPORTS (INDIA), 326 ITR 455 (BOM); REFER RAGHUNATH EXPORTS (P.) LTD, V. CIT 11 TAXMANN.COM 273 (CALCUTTA). 3.8.4. THE MISC. INCOME IT WAS SUBMITTED INCLUDED INCOME FROM SALE OF SCRAP/EARTH MATERIAL AND EARNEST MONEY FORFEITED AN D FORMS A PART OF THE MAIN BUSINESS INCOME OF THE ASSESSEE. 3.8.5. RELYING ON THE WRITTEN SUBMISSIONS IT WAS SUBMITTED THAT GROUND NO. 8 SPECIFICALLY ADDRESSES THE INTEREST INCOME ON THE B ASIS OF WHICH IT WAS SUBMITTED THAT THE SAID INCOME IS DERIVED FROM INFR ASTRUCTURE FACILITY AND WAS BUSINESS INCOME AND NOT INCOME FROM OTHER SOURCES. THE ASSESSEE IT WAS SUBMITTED IS A SPV CONSTITUTED TO CARRY ON THE BUSI NESS OF ELIGIBLE UNDERTAKING I.E. INFRASTRUCTURE FACILITY AND THE FDRS AND INTER EST THEREON IS AN INTRINSIC PART OF THE SAID BUSINESS. 3.8.6. THE PRESENT CASE IT WAS SUBMITTED IS NOT A CASE WHE RE BUSINESS HAS NOT COMMENCED. THERE IS NEXUS BETWEEN INTEREST INCOME P AID AND EARNED. VARIOUS BANKS/FINANCIAL INSTITUTIONS HAVE SANCTIONED LOANS FOR THE INFRASTRUCTURE I.T.A .NO.-414/DEL/2015 PAGE 23 OF 95 FACILITY WHICH WERE KEPT IN BANK TEMPORARILY AND IN TEREST IS EARNED THEREON. SIMILARLY, THE PROCEEDS FROM INITIAL PUBLIC OFFER ( IPO) WERE KEPT IN BANK TEMPORARILY AND INTEREST IS EARNED THEREON. THE SAM E SOURCE OF FUNDS (FDRS) IT WAS SUBMITTED IS USED FOR DEVELOPMENT OF INFRASTRUC TURE FACILITY. THE ASSESSEE HAS ALSO CHARGED THE FDRS TO BANKS FOR OBTAINING FI NANCE FOR THE INFRASTRUCTURE FACILITIES. MAKING OF FDRS FOR WORKING CAPITAL MANA GEMENT WAS IN THE COURSE OF THE BUSINESS. IT WAS SUBMITTED THAT THE CAPITALIZAT ION IN THE TWO RESPECTIVE PARTS OF EXPRESSWAY AND PROJECT UNDER DEVELOPMENT I S BASED ON THE RELATED FUNDS AS PER CA CERTIFICATE AT PB PAGE 68. THE AS SESSEE IT WAS SUBMITTED HAS ADJUSTED THE SAID INTEREST INCOME AGAINST THE INTER EST EXPENSES PAID ON TERM LOANS/NCDS AND OTHERS. THE EXPRESSWAY INFRASTRUCTUR E FACILITY IT WAS SUBMITTED WAS BEING DEVELOPED IN THE YEAR WAS CAPIT AL WORK-IN-PROGRESS AND A QUALIFYING ASSET PRIOR TO COMPLETION UNDER AS-16. T HE SAID INTEREST EARNED IT WAS SUBMITTED WAS TO BE NETTED AGAINST INTEREST PAI D AND THE BALANCE INTEREST PAID ON FUNDS FOR SUCH CAPITAL WORK-IN-PROGRESS IS CAPITALIZED AS PER AS-16. THUS, BOTH AS PER AS-16 AND CORRECT TREATMENT IN TA X, THE SAID INTEREST WOULD BE NETTED AND BALANCE INTEREST PAID CAPITALIZED. 3.8.7. RELIANCE WAS ALSO PLACED ON 236 ITR 315 (SC) IN TH E CASE OF CIT V. BOKARO STEEL LTD., 247 ITR 268 (SC); CIT V. KARNATA KA POWER CORPORATION, 315 ITR 255 (SC); INDIAN OIL PANIPAT POWER CONSORTIUM L TD. V. ITO. HON'BLE HIGH COURT IN PR. CIT VS. FACOR POWER LIMITED, 66 TAXMAN N.COM 178 (DELHI) SO AS TO SUBMIT THAT INTEREST ON FDRS PLACED WITH BANK AS MA RGIN MONEY FOR PROCUREMENT OF VARIOUS CAPITAL GOODS FOR SETTING UP OF POWER PROJECTS WAS NOT I.T.A .NO.-414/DEL/2015 PAGE 24 OF 95 ASSESSABLE AS INCOME FROM OTHER SOURCES. THE MONE Y PLACED IN FIXED DEPOSITS IT WAS SUBMITTED WAS INEXTRICABLY LINKED WITH SETTI NG UP OF POWER PLANTS AND WAS A CAPITAL RECEIPT NOT LIABLE TO BE TAXED. AS SU CH, THERE WAS NO INTEREST ON FDRS WHICH CAN BE ASSESSED AS INCOME FROM OTHER SOU RCES. THIS ARGUMENT IT WAS SUBMITTED WOULD ADDRESS RS, 70.84 CRORES RELATI NG OUT OF THE TOTAL FDR INTEREST OF RS. 75.75 CRORES. BALANCE 4.91 CRORES I T WAS SUBMITTED WAS INTEREST ON FDRS, THE SOURCE OF FUNDS OF WHICH WERE USED FOR PROJECT UNDER DEVELOPMENT, BEING REAL ESTATE DEVELOPMENT FORMING PART OF CURRENT ASSET/INFRASTRUCTURE FACILITY. HERE TOO NETTING OF INTEREST WAS TO BE ALLOWED AND THE SAID AMOUNT CANNOT BE TAXED AS INCOME FROM OTHE R SOURCES. IT WAS SUBMITTED THAT THE ASSESSEE HAS ADJUSTED THE INTERE ST AGAINST EXPRESSWAY CAPITAL WORK-IN-PROGRESS I.E. PROJECT UNDER DEVELOP MENT BEING REAL ESTATE DEVELOPMENT PART OF INFRASTRUCTURE FACILITY. 3.8.8. WITHOUT PREJUDICE TO THE ABOVE ARGUMENT IT WAS SUBM ITTED THAT IT WAS ALL PART OF A SINGLE OBJECT BUSINESS OF THE INFRASTRUCT URE FACILITY IN THE COURSE OF BUSINESS AS SUCH IT WOULD BE ASSESSABLE AS BUSINESS INCOME EVEN IF NOT ALLOWED TO BE NETTED AGAINST THE SAID CAPITALIZATION, IT WO ULD BE BUSINESS INCOME AND NOT INCOME FROM OTHER SOURCES AND THE ENTIRE BUSINE SS INCOME IS ELIGIBLE FOR DEDUCTION U/S 80IA. IT WAS RE-ITERATED THAT THIS WA S NOT A CASE WHERE BUSINESS HAS NOT COMMENCED. 3.9. ADDRESSING THE NEXT ISSUE ADDRESSED VIDE GROUND NOS . 13 AND 14 RELYING UPON THE WRITTEN SUBMISSIONS AGAIN PLACED ON RECOR D IT WAS SUBMITTED THAT THE CONCESSION AGREEMENT GRANTED TO THE ASSESSEE AN EXCLUSIVE LICENSE AND I.T.A .NO.-414/DEL/2015 PAGE 25 OF 95 AUTHORITY TO OPERATE AND MAINTAIN THE EXPRESSWAY FO R A PERIOD OF 36 YEARS FROM THE DATE OF COMMISSIONING AND, DURING THIS PERIOD, TO COLLECT APPROPRIATE FEES FROM THE USERS OF THE EXPRESSWAY AND RIGHTS FOR THE DEVELOPMENT OF 25 MILLION SQUARE METERS OF LAND ALONG THE EXPRESSWAY. THIS PA RT OF THE CONCESSION AGREEMENT IT WAS SUBMITTED WAS IMPLEMENTED BY YAMUN A EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHORITY I.E. YEIDA BY TRAN SFERRING TO THE ASSESSEE COMPANY SPECIFIC PARCELS OF LAND, WITHIN THE AGREED 25 MILLION SQUARE METERS LIMIT, UNDER A SET OF LONG-TERM LEASE DEEDS. THE S AID LEASE DEEDS OR TRANSFER DEEDS TRANSFER SUBSTANTIALLY ALL RISK AND REWARD IN CIDENTAL TO OWNERSHIP TO THE ASSESSEE WHO BECAME IN SUBSTANCE THE OWNER. SUCH LE ASE AS PER AS 19 AND AS 17 IT WAS SUBMITTED WAS A FINANCE LEASE OR CAPITAL LEASE AND NOT OPERATING LEASE. RELIANCE WAS PLACED ON THE JUDGEMENT OF THE APEX COURT IN SRI SHANTI SHARMA & OTHERS V. SMT VED PRABHA & OTHERS (1987) 4 SCC 193 AND 1987 AIR 2028 WHEREIN IT HAS BEEN HELD THAT THE OWNERSHIP OF LAND IS RECOGNIZED ON LEASEHOLD BASIS. IT WAS ARGUED THE ALLEGED NON-DED UCTION OF TDS ON WHAT IS STATED TO BE RENT AND INTEREST IS ERRONEOUS. TH E SO-CALLED RENT IS LEASE EXPENSE WHICH IS PART OF THE CAPITAL COST OF ACQUIS ITION OF LEASEHOLD LAND AND CAPITALIZED AS SUCH. THE SO-CALLED INTEREST IS ON LY EDC ENHANCEMENT OVER TIME TO COVER FOR INFLATION. 3.9.1. ADDRESSING THE FACTS IT WAS SUBMITTED THAT NO AMOUN T OF THE SO- CALLED RENT OR INTEREST IS PAYABLE AS PER ASSE SSEE'S BOOKS AS AT END OF THE YEAR AS IT HAS ALL BEEN ENTIRELY PAID. THUS IT WAS SUBMITTED THAT THERE BEING NO AMOUNT PAYABLE SECTION 40(A)(IA) IS NOT AP PLICABLE. RELIANCE WAS I.T.A .NO.-414/DEL/2015 PAGE 26 OF 95 PLACED ON THE DECISION OF THE JURISDICTIONAL HIGH C OURT IN THE CASE OF CIT V. VECTOR SHIPPING SERVICES (P) LTD. REPORTED IN (2013 ) 38 TAXMANN.COM 77 (ALLA). IT WAS SUBMITTED THAT THE SLP AGAINST THE SAID DECI SION HAD BEEN DISMISSED BY THE APEX COURT IN CC NO. 8068/2014. RELIANCE WAS AL SO PLACED UPON MERILYN SHIPPING & TRANSPORTERS VS ACIT (VISHAKHAPATNAM SB) 20 TAXMANN.COM 244. IT WAS SUBMITTED THAT THE DISALLOWANCE HAD BEEN MA DE U/S 40(A)(IA) READ WITH SECTION 1941 AND SECTION 194A FOR ALLEGED NON DEDUC TION OF TDS. IT WAS SUBMITTED THAT THERE IS NO RENT OR INTEREST WITHIN THE MEANING OF SECTION 1941 AND SECTION 194A IN THIS CASE. 3.9.2. IT WAS ALSO SUBMITTED THAT APART FROM THE ABOVE ARG UMENTS EVEN OTHERWISE ON FACTS NOTWITHSTANDING THE ABOVE ARGUME NT ADDITION BY WAY OF A DISALLOWANCE WAS NOT MAINTAINABLE AS THE ASSESSEE H AS NOT CLAIMED THESE AMOUNTS AS AN EXPENSE AND HAS CAPITALISED (INTEREST OF RS 55,88,99,253/- THESE TO PROJECT UNDER DEVELOPMENT AND OUT OF LEASE RENT RS. 2,01,282/- IS DEBITED TO CWIP; RS.2,42,132/- TO PROJECT UNDER DEV ELOPMENT AND ONLY RS. 10,149/- HAS BEEN CLAIMED AS EXPENSE). 3.9.3. ADDRESSING THE RENT COMPONENT THE ASSESSEE ALSO IT WAS SUBMITTED RELIANCE IS PLACED ON KRISHAK BHARATI COOPERATIVE L TD V. ACIT (2012) (DELHI HIGH COURT) WHEREIN IT HAS BEEN HELD THAT LEASE PRE MIUM PAID IN LONG-TERM LEASES OF LAND IS CAPITAL EXPENDITURE AND NOT ALLOW ABLE AS ADVANCE PAYMENT OF RENT. SECTION 1941 OF THE ACT IT WAS SUBMITTED REF ERS TO RENT FOR THE USE OF ANY LAND. THE SAID SECTION IT WAS SUBMITTED WOULD COVER OPERATING LEASES WHEREIN RENT IS CHARGED FOR THE USE OF LAND AND SUBSTANTIAL LY ALL OF THE RISKS AND I.T.A .NO.-414/DEL/2015 PAGE 27 OF 95 REWARDS INCIDENTAL TO OWNERSHIP ARE RETAINED BY THE LESSOR. UNDER A LONG-TERM LEASE OF THE FINANCE OR CAPITAL LEASE TYPE, WHAT IS GRANTED TO THE LESSEE IT WAS SUBMITTED IS NOT JUST THE RIGHT OF USE BUT A MUCH L ARGER BUNDLE OF RIGHTS OF OWNERSHIP. SUCH LONG-TERM LEASES OF LAND IT WAS SU BMITTED WOULD BE OUTSIDE THE PURVIEW OF S.1941. HENCE, THE LEASE RENT PAYME NTS BY THE COMPANY IT WAS SUBMITTED WOULD NOT BE LIABLE FOR DEDUCTION OF TAX AT SOURCE UNDER S. 1941. RELIANCE WAS PLACED ON THE DECISION OF THE APEX COU RT IN THE CASE OF PODAR CEMENT PVT LTD 226 ITR 625 (SC) FOR THE PROPOSITION THAT INCOME TAX PROVISIONS DO NOT OPERATE BY DE JURE OWNERSHIP BUT DE FACTO OW NERSHIP. 3.9.4. ADDRESSING THE INTEREST COMPONENT IT WAS SUBMITTED THAT UNDER THE TERMS OF THE CONCESSION AGREEMENT AS WELL THE LEASE AGREEMENT, THE LESSOR (YEIDA) HAS UNDERTAKEN TO CARRY OUT SOME EXTERNAL D EVELOPMENTS. FOR THE SAID DEVELOPMENT IT WAS SUBMITTED YEIDA WAS ENTITLED TO CHARGE THE EXTERNAL DEVELOPMENT CHARGES (EDC) FROM THE LESSEE (I.E. THE COMPANY). THE EXTERNAL DEVELOPMENT WAS CARRIED OUT BY YEIDA IN PLANNED PHA SES OVER A PERIOD OF TIME. THE CHARGES FOR THE SAME WERE ALSO COLLECTED BY THE M ACCORDINGLY OVER A PERIOD OF TIME IN A PHASED MANNER. THE PER SQUARE METER RA TE AT WHICH EDC WAS PAYABLE BY THE LESSEE COMPANY WAS DETERMINED IN THE FIRST INSTANCE WITH REFERENCE TO A BASE YEAR OR ZERO YEAR, WHICH IN THI S CASE WAS THE YEAR 2010. SINCE THE ACTUAL EXTERNAL DEVELOPMENT AS WELL AS TH E PAYMENTS IN RESPECT OF THE SAME BECOME DUE IN PHASES AND WERE TO BE SPREAD OVE R A NUMBER OF YEARS, YEIDA PROVIDED FOR AN ADDITIONAL PAYMENT, OVER AND ABOVE THE RATE FIXED WITH REFERENCE TO THE BASE YEAR, BY WAY OF INFLATION OR COMPENSATION FOR THE I.T.A .NO.-414/DEL/2015 PAGE 28 OF 95 ESCALATION IN THE COST OF DEVELOPMENT. THIS COMPONE NT OF EDC WHICH WAS CHARGED, IN REALITY AND SUBSTANCE, TO NEUTRALIZE TH E ESCALATION-COST OF EXTERNAL DEVELOPMENT, AND WAS ADDED TO THE COST FIXED WITH R EFERENCE TO THE BASE YEAR, WAS LOOSELY REFERRED TO BY YEIDA AS 'INTEREST. I T WAS SUBMITTED THAT ON CONSIDERATION OF FACTS IT WOULD BE CLEAR THAT THE E SCALATION-COST OF EXTERNAL DEVELOPMENT, WHICH HAS BEEN LOOSELY GIVEN THE NOMEN CLATURE OF INTEREST BY YEIDA, DOES NOT ACTUALLY CONSTITUTE INTEREST WITH IN THE MEANING OF SECTION 2(28A) OF THE ACT. IT WAS SUBMITTED THAT IT WAS CER TAINLY NOT IN RESPECT OF ANY MONEYS BORROWED BY THE COMPANY. IT WAS ALSO NOT IN RESPECT OF ANY DEBT INCURRED BECAUSE, AT THE TIME THE LAND WAS DEMISED TO THE ASSESSEE COMPANY UNDER THE LEASE, NO EXTERNAL DEVELOPMENT-ASSETS EXI ST IN THE BOOKS OF YEIDA, AND NO SERVICES BY WAY OF EXTERNAL DEVELOPMENT WERE MADE AVAILABLE TO COMPANY (THE LESSEE). ACCORDINGLY, NO DEBT BY WAY OF ANY COST OF EXTERNAL DEVELOPMENT COULD BE SAID TO HAVE BEEN INCURRED BY THE COMPANY AT THE TIME OF EXECUTION OF THE LEASE DEED, AS NO EXTERNAL DEVELOP MENT HAD ACTUALLY BEEN PROVIDED BY YEIDA AT THAT POINT OF TIME. IT WAS ARG UED THAT WHERE THERE WAS NO DEBT, THERE COULD BE NO DEFERMENT OF ITS PAYMENT, A ND NO QUESTION OF INCURRING ANY INTEREST. THE PAYMENTS BY THE COMPANY UNDER THE NOMENCLATURE OF SO- CALLED INTEREST AS A PART OF THE EDC CHARGES IT WAS SUBMITTED COULD NOT BE HELD AS PAYMENTS OF INTEREST WITHIN THE MEANING AND SCOP E OF SECTION 194A READ WITH SECTION 2(28A) OF THE ACT. HENCE, THE SUBJECT PAYMENTS ARE NOT LIABLE FOR DEDUCTION OF TAX AT SOURCE UNDER SECTION 194A. I.T.A .NO.-414/DEL/2015 PAGE 29 OF 95 3.9.5. IT WAS ALSO SUBMITTED THAT INTEREST AS DEFINED IN 2 (28A) OF THE ACT MEANS INTEREST PAYABLE ON MONEY BORROWED OR DEBT INCURRED - THERE IS NO MONEY BORROWED OR DEBT INCURRED IN THIS CASE AND ACCORDIN GLY THERE WAS NO INTEREST OR RELATED TDS LIABILITY. RELIANCE WAS PLACED ON 335 I TR 94 (DEL). RELYING UPON GHAZIABAD DEVELOPMENT AUTHORITY V. DR N. K.GUPTA 25 8 ITR 337 (NCDRC); CIT V. HP. HOUSING BOARD 340 ITR 388 (HP); DELHI DEVEL OPMENT AUTHORITY V. ITO 53 ITD 19 (DEL- ITAT), IT WAS ARGUED THAT IT HAS BE EN HELD THAT PAYMENTS UNDER THE NOMENCLATURE OF 'INTEREST' DO NOT CONSTIT UTE INTEREST WITHIN THE MEANING OF SECTION 194A READ WITH SECTION 2(28A). 3.9.6. IT WAS ALSO SUBMITTED THAT IT IS AN ABSOLUTE PREMIS E OF INCOME-TAX JURISPRUDENCE THAT TAX CANNOT BE RECOVERED ON THE S AME INCOME TWICE. IT IS ON THIS PREMISE THAT THE HON'BLE SUPREME COURT IN HIND USTAN COCA COLA BEVERAGE P. LTD. V. COMMISSIONER OF INCOME-TAX (2007) 293 IT R 226 (S.C.) AND SEVERAL HIGH COURTS IN VARIOUS OTHER CASES HAVE UNIFORMLY R ULED THAT ONCE TAX ON ANY INCOME HAS BEEN PAID BY THE PAYEE THE DEPARTMENT CA NNOT COLLECT TAX ON THE SAME INCOME FROM THE PAYER U/S 201 OF THE ACT. RELI ANCE WAS PLACED CIT V. ANSAL LANDMARK TOWNSHIP (P) LTD. (2015) 61 TAXMANN. COM 45 (DEL.) TO RELY ON THE LAW DECLARED WHEREIN THE HONBLE APEX COURT HAS HELD THAT SECOND PROVISO TO SEC. 40(A)(IA) WAS DECLARATORY AND CURATIVE IN NATURE AND IT WAS TO BE GIVEN RETROSPECTIVE EFFECT FROM 1.4.2005. IT WAS SUBMIT TED THAT THE LD. CIT (APPEALS) HAS DECIDED THE APPEAL IN FAVOUR OF APPELLANT IN TD S MATTER REGARDING NON- DEDUCTION OF TDS ON INTEREST ON ACCOUNT OF DEFERMEN T OF PAYMENT OF EDC IN TDS APPEAL FOR THIS YEAR. IT WAS SUBMITTED THAT EXC EPT FOR MINOR AMOUNT OF RS. I.T.A .NO.-414/DEL/2015 PAGE 30 OF 95 10149/- THE REMAINING HAS BEEN CAPITALIZED THUS NO 40(A)(IA) DISALLOWANCE IS CALLED FOR. 3.9.7. IT WAS SUBMITTED THAT IT HAS BEEN CONSISTENTLY ARG UED THAT THESE ITEMS ARE NOT COVERED BY 194A OR 1941. IT WAS SUBMITTED THAT IF THE DISALLOWANCE IS SUSTAINED THEN IT WOULD LEAD TO INCREASE IN TAXABLE BUSINESS INCOME. SINCE THE ENTIRE BUSINESS INCOME IS DEDUCTIBLE U/S 80-IA ACCO RDINGLY WITHOUT PREJUDICE TO THE ARGUMENT THAT NO DISALLOWANCE IS C ALLED FOR IN THE ALTERNATIVE THIS ADDITION WOULD LEAD TO ENHANCED DE DUCTION U/S 80-IA WHICH HAS ERRONEOUSLY NOT BEEN CONSIDERED BY THE LD . AO. 3.10. ADDRESSING THE NEXT ISSUE PERTAINING TO DISALLOWAN CE ON DEPRECIATION MADE BY THE AO AND SUSTAINED BY THE CIT(A) IT WAS S UBMITTED THAT THE TAX AUTHORITIES HAD PROCEEDED ON THE BASIS OF THE REASO NING THAT THERE WAS NO RECEIPT FROM TOLL ROAD CONSTRUCTION WHICH WAS IN PR OGRESS DURING THE YEAR. IT WAS SUBMITTED THAT THE COMPLETE PROFIT DECLARED BY THE ASSESSEE IS FROM SALE OF PLOTS/BUILT UP PROPERTIES AND HENCE IT HAS BEEN CON CLUDED THAT NO DEPRECIATION WAS TO BE ALLOWED. THE INCOME FROM SALE OF PLOT/BUI LT UP PROPERTIES IT WAS SUBMITTED WAS AN INTRINSIC PART OF THE INFRASTRUCTU RE PROJECT AND FACILITY. EVEN OTHERWISE IT WAS ARGUED THE INCOME IS ASSESSED AS B USINESS INCOME AND DEPRECIATION IS ADMISSIBLE AGAINST THE BUSINESS INC OME INVOLVED. THE DEPRECIATION IT WAS SUBMITTED WAS CLAIMED ON ASSETS OWNED BY THE ASSESSEE AND USED FOR THE PURPOSES OF THE BUSINESS AND ALL PROVISIONS OF SECTION 32 AND RELEVANT PROVISIONS OF THE ACT HAVE BEEN COMPLIED WITH. IT WAS SUBMITTED THAT ADMITTEDLY EXPRESSWAY WAS UNDER CONSTRUCTION AS I.T.A .NO.-414/DEL/2015 PAGE 31 OF 95 CAPITAL WORK IN PROGRESS, DEPRECIATION ON ASSETS HA VING DIRECT NEXUS WITH THE SAME HAVE IN ANY CASE NOT BEEN CLAIMED AS DEDUC TION BUT CAPITALIZED AS PART OF CAPITAL WORK IN PROGRESS. 3.10.1. WITHOUT PREJUDICE TO THE MAIN ARGUMENT IT WAS SUBMI TTED THAT THE ASSESSEE WOULD LIKE TO SUBMIT THAT ALTHOUGH THERE I S NO JUSTIFICATION FOR THE DISALLOWANCE HOWEVER IF THE SAID PRAYER IS REJECTED AND THEN IN ANY CASE IT WOULD LEAD TO ENHANCEMENT OF BUSINESS INCOME AND HI GHER CORRESPONDING DEDUCTION U/S 80-IA WAS ALLOWABLE. 3.11. ACCORDINGLY RELYING UPON THESE WRITTEN SUBMISSIONS , FACTS, EVIDENCES AND CASE LAW AS CONSIDERED BY THE ITAT AND ADDRESSED IN THE WRITTEN SUBMISSIONS IT WAS HIS CONTENTION THAT THE ISSUES ARE COVERED IN F AVOUR OF THE ASSESSEE. 4. THE LD. CIT DR REFERRING TO THE FACTS OF THE CASE SUBMITTED THAT IN THE FACTS OF THE CASE THE ASSESSEE IS NOT CLEAR WHETHER ITS CASE IS COVERED U NDER SECTION 80IA(4) OR 80IA(6). ADDRESSING THE RELEVANT PROVISION IT WAS HER SUBMISSION THAT THE ARGUMENTS OF THE ASSESSEE ARE B ASED ON INCORRECT FACTS AND INCORRECT APPRECIATION OF THE DECISION OF THE I TAT. THE TAX AUTHORITIES IT WAS SUBMITTED HAVE CONSISTENTLY EXAMINED THE FACTS AND REJECTED THE PRIMARY CLAIM HOLDING THAT IT IS AGAINST THE PROVIS IONS. THE ASSESSEE THEREAFTER IT WAS SUBMITTED BEFORE THE CIT(A) PUT F ORTH THE ALTERNATIVE PRAYER AND A SPEAKING ORDER HAS BEEN PASSED BY THE CIT(A) AFTER DUE CONSIDERATION OF ALL FACTS AND LAW APPLICABLE THERE ON. ACCORDINGLY, THE ARGUMENTS MADE BY THE ASSESSEE ON FACTS AND LAW, IT WAS SUBMITTED ARE ENTIRELY MISCONCEIVED. IT WAS SUBMITTED THAT WHEN THE PROVISION OF THE ACT ARE I.T.A .NO.-414/DEL/2015 PAGE 32 OF 95 CONSIDERED IT WOULD TRANSPIRE THAT THE CLAIM HAS CO RRECTLY BEEN REJECTED. IT WAS SUBMITTED THAT IT IS AN ADMITTED FACT AND NOT UNDER DISPUTE THAT THE ASSESSEE WAS GIVEN PARCELS OF LAND FOR DEVELOPMENT. THE SPECIFIC PARCELS OF LAND IT WAS EMPHASIZED WERE NOT SMALL MEASLY PARCELS BUT WERE H UGE PARCELS OF LAND FOR THE PURPOSES OF DEVELOPING HOUSING AND ROAD OF SPECIFIC REQUIREMENTS. ACCORDINGLY IN THE CIRCUMSTANCES IT WAS HER SUBMISS ION IT IS SUB-SECTION (6) OF SECTION 80IA WHICH WOULD BE RELEVANT AND THE REQUIR EMENTS OF THE SAID SECTION, IT WAS EMPHASISED ARE VERY CLEAR AND SPECIFIC WHERE IN THE LAW REQUIRES THAT UNDER RULE 18BBE AND BY WAY OF FORM NO.10CCC CERTAI N CONDITIONS AND STIPULATIONS HAVE BEEN SET OUT WHICH EVIDENTLY AS P ER RECORD HAVE NOT BEEN FULFILLED. IT WAS SUBMITTED THAT THERE IS NO CREAT ION OF ANY SPECIAL ACCOUNT AND ACCORDINGLY ALL ALONG EVEN BEFORE THE CIT(A) THE AS SESSEE HAS BEEN ARGUING AND SEEKING ADMISSION OF ADDITIONAL EVIDENCES TO SHOW C OMPLIANCES WHICH WERE NEVER MADE AT THE RELEVANT POINT OF TIME. IT WAS HER ARGUMENT THAT INFACT THE ASSESSEE IS COMPLETELY UNCLEAR AS TO WHICH IS THE R ELEVANT SECTION UNDER WHICH ITS CLAIM CAN BE SAID TO BE COVERED. RELIANCE PLACED UPON THE ORDER OF THE ITAT, IT WAS HER SUBMISSION IS OF NO HELP AND T HE RELIANCE PLACED BY THE ASSESSEE IS A MISTAKE AS THE ITAT AT SPECIFIC PAGE 65 VIDE PARA 22 HAS DECIDED THE ISSUE IN FAVOUR OF THE REVENUE. IT WA S ALSO HER ARGUMENT THAT THE ITAT IN THE 263 PROCEEDINGS WAS REQUIRED O NLY TO CONSIDER WHETHER THE POWER OF REVIEW HAS BEEN CORRECTLY EXER CISED BY THE COMMISSIONER OR NOT. ACCORDINGLY THE FINDING OF THE ITAT ON THIS LIMIT ED ISSUE IT WAS SUBMITTED CANNOT BE SAID TO BE DECIDIN G THE ISSUE IN THE PRESENT I.T.A .NO.-414/DEL/2015 PAGE 33 OF 95 PROCEEDINGS. ATTENTION WAS INVITED TO PARA 127 AT PAGE 145 OF THE TRIBUNALS ORDER WHICH HAD ALSO BEEN RELIED UPON BY THE LD. AR ALSO, RELYING UPON THE SAME AND READING IT AGAIN IT WAS HER SUBMISSION TH AT THE EXPLANATION (B) OF SUB-SECTION 4 OF SECTION 80IA(A) WAS APPLICABLE AND THUS AS A RESULT OF THIS, THE REQUIREMENTS OF IT SECTION 80IA(6) WERE REQUIRED TO BE FULFILLED. 4.1. REFERRING TO THE FACTS OF THE CASE IT WAS HER SUBM ISSION THAT THE ASSESSING OFFICER NOTICED THAT THE TOLL ROAD WAS INAUGURATED ON A SPECIFIC DATE WHICH FELL IN ASSESSMENT YEAR 2013-14. THUS ONCE IT WAS NOTICED THAT WHEN THE TOLL ROAD HAD NOT EVEN BEEN INAUGURATED, T HE OCCASION TO COLLECT TOLL CHARGES DID NOT ARISE. REFERRING TO THE FACTS IT WA S HER SUBMISSION THAT THE ITAT IN THE AFORESAID ORDER WAS ONLY CONSIDERING THE GRO UNDS WHICH WERE BEFORE THE ITAT AS WOULD BE EVIDENT FROM PAGE 146 OF THE SAID ORDER AND THE DECISION IT WAS SUBMITTED WAS IN FAVOUR OF THE REVENUE. INVITIN G ATTENTION TO THE ASSESSMENT ORDER PAGES 4 AND 5 IT WAS SUBMITTED THA T THE FACTS RELATABLE TO THE CLAIM OF THE ASSESSEE UNDER SECTION 80IA ARE DISCUS SED THERE AND A PERUSAL OF THE SAME WOULD SHOW THAT THE TOLL ROAD WAS INAUGUR ATED ON 09.08.2012 THAT IS IN THE ASSESSMENT YEAR 2013-14. THUS IN VIEW OF THE FACT THAT IN THE YEAR UNDER CONSIDERATION, THE INCOME DECLARED FROM BUSI NESS DID NOT CONTAIN ANY INCOME FROM THE INFRASTRUCTURE FACILITY BEING T HE TOLL ROAD AND AFTER CONSIDERING THE REPLY OF THE ASSESSEE READ ALONGWIT H THE RELEVANT PROVISIONS OF THE ACT, THE CLAIM MADE UNDER SUBSECT ION HAS BEEN REJECTED. 4.2. ATTENTION WAS INVITED TO PAGE 8 OF THE ASSESSMENT ORDER SO AS TO BRING OUT THE FACT THAT THE ASSESSEE IN THE YEAR UNDER CONSID ERATION HAS EARNED INCOM E I.T.A .NO.-414/DEL/2015 PAGE 34 OF 95 FROM SALE OF PLOTS, SALE OF BUILT-UP PROPERTIES, LE ASE RENTALS, TRANSFER FEES, FDR BANK INTEREST, PROFIT ON ACCOUNT, CURRENCY FLUC TUATIONS AND MISCELLANEOUS INCOME. IN THE CONTEXT OF THESE FACT S IT WAS HER SUBMISSION THAT WHERE THE ASSESSEES INCOME ADM ITTEDLY IS FROM DEVELOPMENT OF PLOTS ETC. IT CANNOT BE SAID TO BE EARNED FROM THE INFRA STRUCTURE FACILITY NAMELY ROAD INCLUDING A TOLL ROAD AS IS THE REQUIREMENT OF THE SPECIFIC PROVISION UNDER WHICH THE ASSESSEE CLAIMS ITS CASE FALLS. 4.3. REFERRING TO THE WITHOUT PREJUDICE CLAIM PUT FORTH BY THE ASSESSEE THAT IT MAY BE ALLOWED TO CLAIM DEDUCTION UNDER SECTION 80I A(6) IT WAS HER SUBMISSION THAT THE CIT(A) HAS EXAMINED AND CONSIDERED THE SA ID CLAIM AND COME TO THE CONCLUSION THAT IT WAS NOT ALLOWABLE AS THE MANDATO RY REQUIREMENTS OF CREATING A SPECIAL RESERVE ACCOUNT OF SUCH PROFITS HAS NOT B EEN FULFILLED. 4.4. IN THE MIDST OF THE ARGUMENTS THE LD.CIT DR INVITI NG ATTENTION TO THE PAPER BOOK PAGE NO. 20 AND 21 SUBMITTED THAT THE GE NERAL CERTIFICATION APPENDED BY THE ASSESSEE ON RECORD THAT DOCUMENTS W ERE FILED BEFORE THE AUTHORITIES IS NOT A SUFFICIENT CERTIFICATION IN TE RMS OF THE ITAT RULES AS THE ASSESSEE MUST IDENTIFY WHICH DOCUMENT WAS FILED BEF ORE WHICH AUTHORITY. THUS, WITHOUT APPROPRIATE CERTIFICATION LD.CIT DR I NSISTED, SHE WOULD NOT BE WILLING TO CONTINUE HER ARGUMENTS. 5. THE LD. AR IN REPLY SUBMITTED THAT ACCORDING TO HI S UNDERSTANDING, CERTIFICATION WAS IN ORDER. HOWEVER HE WAS WILLING TO RE-CERTIFY THE PAPER BOOK AS REQUIRED BY THE CIT DR BUT BEFORE CONCEDING TO T HE DEPARTMENTAL REQUEST HE SOUGHT PERMISSION TO HIGHLIGHT THAT THE CERTIFICATI ON IS NOT GENERAL AND IS I.T.A .NO.-414/DEL/2015 PAGE 35 OF 95 SPECIFIC. REFERRING TO THE PAPER BOOK, IT WAS SUBM ITTED THAT ALTHOUGH THE FINAL LINE IN THE CERTIFICATE DOES READ AS CERTIFIED TO BE COMPILED FROM THE PAPERS ON RECORD AND/OR FILED BEFORE THE AUTHORITIES AS DE TAILED ABOVE BUT THE DESCRIPTION IN THE INDEX ITSELF IT WAS SUBMITTED MA KES IT CLEAR AS TO A DESCRIPTION OF THE SPECIFIC DOCUMENT INCLUDED IN TH E PAPER BOOK AND BEFORE WHICH AUTHORITY, IT HAD BEEN FILED. 5.1. AS AN ILLUSTRATION IT WAS SUBMITTED THE DOCUMENTS DESCRIBED AT S ERIAL NO. 2 TO 6 ADMITTEDLY WERE BEFORE THE ASSESSING OFF ICER AS WELL AS THE CIT(A) AS THESE WERE THE COMPUTATION OF TAXABLE INCOME, F INANCIAL STATEMENT FOR THE YEAR; THE COPY OF THE TAX AUDIT REPORT IN F ORM 10CCB. 5.2. SIMILARLY DOCUMENTS AT SERIAL NO. 8, 9 AND 10 IT WAS POINTED OUT HAVE BEEN DESCRIBED AS HAVING BEEN FILED DURING ASSESSMENT PROCEEDINGS. THE DOCUMENT AT SL.NO.11 IT WAS SUBMITTED IS DESCRIBED AS A REPLY FILED BEFORE THE ASSESSING OFFICER DATED 29.03.2014. SERIAL NO. 12, 13 AND 14 IT WAS SUBMITTED HAVE BEEN SHOWN TO HAVE BEEN FILED BEFORE THE CIT(A). THE DOCUMENT AT SL.NO. 15 IT WAS SUBMITTED HAS BEEN DESCRIBED AS THE COPY OF THE REMAND REPORT DOCUMENT AT SERIAL NO.16 IT WAS SUBMI TTED IS DESCRIBED AS A REPLY TO THE REMAND REPORT. THE DOCUMENT AT SERIAL NO. 17 IT WAS SUBMITTED IS THE ORDER OF THE ITAT AND THE DOCUMENT AT SERIAL NO. 18 IS DESCRIBED AS A COPY OF THE ASSESSMENT ORDER FOR 2009-10 AND 2 010-11 ASSESSMENT YEARS. I.T.A .NO.-414/DEL/2015 PAGE 36 OF 95 5.3. ACCORDINGLY, IT WAS HIS SUBMISSION THAT THE CERTIF ICATION IS IN ORDER HOWEVER IF THE LD.CIT DR INSISTS HE WAS WILLING TO RE-CERTIFY THE SAME. CONSIDERING THE SUBMISSION, THE LD.CIT DR GAVE UP T HE OBJECTION. 5.4. CONSIDERING THE PAPER BOOK AND THE CERTIFICATION A PPENDED WHICH ISSUE WAS GIVEN UP BY THE LD.CIT DR HERSELF, WE FIND THAT THE OBJECTION OF THE LD. CIT DR THAT CERTIFICATE IN ASSESSEEES PAPER BOOK IS NO T IN ORDER AND IS UNWARRANTED AND UNJUSTIFIED AND ON FACTS AND THE OB JECTION IS WITHOUT ANY BASIS. 6. REVERTING BACK TO HER ARGUMENTS, THE LD.CIT DR INV ITED ATTENTION TO THE PAPER BOOK PAGE NO. 20 AND 21 WHICH IS THE COPY OF THE FORM 10CCB CERTIFIED BY AN CHARTERED ACCOUNTANT. REFERRING TO COLUMN NO . 14 OF THE SAME IT WAS SUBMITTED THAT WHERE THE ASSESSEE IS REQUIRED TO IN DICATE THE NATURE OF THE INFRASTRUCTURE FACILITY THE ASSESSEE HAS INDICATED IT AS ROAD INCLUDING TOLL ROAD AND THUS IT WAS HER ARGUMENT THAT THE AO IN THE PRE SENT PROCEEDINGS HAS BEEN GUIDED BY ASSESSEES OWN DISCLOSURE. THIS FACT IT WAS SUBMITTED HAS BEEN TAKEN NOTE OF BY THE CIT(A) ALSO. THUS BY ITS OWN CONDUCT THE ASSESSEE IT WAS SUBMITTED IS UNSURE OF ITS CLAIM. 6.1. INVITING ATTENTION TO PAPER BOOK PAGE 28 IT WAS S UBMITTED THAT DATE OF COMMENCEMENT IS SHOWN AS 05.04.2007. THE FACT THAT TOLL FEE HAS BEEN COLLECTED FOR THE FIRST TIME IN 2013-14 AY IS AN AD MITTED FACT. INVITING ATTENTION TO PAGE 62 OF THE CIT(A)S ORDER IT WAS HER SUBMISS ION THAT AFTER REFERRING TO THE RELEVANT PROVISION AND ADDRESSING THE REQUIREMENTS THEREIN THE CIT(A) ON FACTS I.T.A .NO.-414/DEL/2015 PAGE 37 OF 95 DISMISSED THE PRAYER OF THE ASSESSEE FOR PLACING AD DITIONAL EVIDENCE ON RECORD HOLDING AS UNDER:- DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT H AS SUBMITTED ADDITIONAL EVIDENCE UNDER RULE 46(A) OF THE INCOME TAX RULE,1962 WITH THE REQUEST FOR ITS ACCEPTANCE AND CONSIDERATION, I N THE APPELLANT PROCEEDINGS ON THE PLEA THAT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE SAME BEFORE THE AO. IN THI S REGARD THE ASSESSEE HAS SUBMITTED AUDITORS' CERTIFICATE DATED 15.11.2014 IN FORM NO. 10CCC UNDER RULE 18BBE OF INCOME TAX RULES AND HAS CONTENDED THAT THE AUDITOR'S CERTIFICATE HAS BEEN RECEIVED ON LY AFTER THE ASSESSMENT WAS COMPLETED VIDE ORDER DATED 31.3.2014 AND IT WAS NOT POSSIBLE TO FILE THE SAME IN THE COURSE OF ASSESSMENT BEFORE AS SESSING OFFICER. SUBSEQUENTLY, A COPY OF ABOVE REQUEST ALONGWITH ADD ITIONAL EVIDENCE WAS SENT TO THE AO FOR REMAND REPORT WHICH WAS RECEIVED IN THIS OFFICE ON 10.12.2014 AND THE SAME WAS FORWARDE D TO THE ASSESSEE FOR REJOINDER WHICH HAS SINCE BEEN RECEIVED IN THIS OFFICE ON 23.12.2014. FOR THE SAKE OF CONVENIENCE BOTH REMAND REPORT AS W ELL AS APPELLANT'S REJOINDER HAVE BEEN REPRODUCED IN THE FOREGOING PAR A OF THIS ORDER. I HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND FIND THAT THE AO HAS VEHEMENTLY ARGUED FOR REJECTION OF ADDITIONAL EVIDE NCE. 6.2. RELYING UPON THE FINDINGS ARRIVED AT THEREIN IT WA S HER SUBMISSION THAT CONSIDERING THE FACT THAT SPECIAL RESERVE AND COMPLIANCES OF OTHER CONDITION AS PRESCRIBED UNDER SECTION 80IA(6) HAD NOT BEEN MA DE AND THEY COULD NOT HAVE BEEN MADE AS THROUGHOUT THE ASSESSMENT PROCEED INGS THE ASSESSEE HAS MAINTAINED THAT THE INCOME DECLARED IN THE RETU RN WAS ELIGIBLE UNDER SECTION 80IA(4). THUS FOR THE FIRST TIME BEFORE THE CIT(A) THE POS ITION IS CHANGED. AS A RESULT OF THIS, THE OCCASION TO CONS IDER THE CASE HAVING BEEN COVERED UNDER SECTION 80IA(6) DOES NOT ARISE. THE SAID CLAIM IT WAS SUBMITTED WAS FLOATED BY THE ASSESSEE ONLY AFTER THE CLAIM BE FORE THE CIT(A) U/S 80IA(4) WAS DISMISSED BY THE ASSESSING OFFICER AND IT WAS T HEN THAT THE ASSESSEE CAME UP WITH A CLAIM THAT THE EXEMPTION SHOULD BE CONSID ERED UNDER SECTION 80IA(6). THE ARGUMENTS OF THE ASSESSEE THAT THE CO MPLIANCES PRESCRIBED UNDER I.T.A .NO.-414/DEL/2015 PAGE 38 OF 95 SECTION 80IA(6) BEING PROCEDURAL IN NATURE SHOULD B E INTERPRETED LENIENTLY AND THE CLAIM FOR EXEMPTION SHOULD BE CONSIDERED UNDER SECTION 80IA(6) IT WAS SUBMITTED HAVE ALL BEEN CONSIDERED AND FOUND TO BE DEVOID OF MERIT. ACCORDINGLY IT WAS HER SUBMISSION THAT IN THE CIRCU MSTANCES OF THE CASE SINCE THE ASSESSEE IS STILL AGGRIEVED THEN IT COULD HAVE APPLIED TO THE BOARD UNDER SECTION 119 (2)(C) OF THE INCOME TAX ACT FOR RELAXA TION OF THE PROVISIONS AND SOUGHT FOR RELIEF FROM THE SAID FORUM AS ONLY THE BOARD BY AN ORDER CAN GIVE SUCH A RELAXATION SUBJECT TO COMPLIANCE OF CONDITIO NS MENTIONED THEREIN AND PLACING THE SAME BEFORE THE PARLIAMENT. ACCORDINGLY IT WAS HER SUBMISSION THAT IT IS ONLY THE PARLIAMENT WHICH COULD HAVE RELAXED THE CONDITIONS AS THE REQUIREMENTS FOR WAIVING EVEN FOR THE BOARD ARE VER Y STRINGENT AS HAS BEEN NOTICED BY THE CIT(A). 6.3. ADDRESSING THE ARGUMENTS ADVANCED IN SUPPORT OF TH E CLAIM THAT INTEREST INCOME MISCELLANEOUS INCOME ETC HAS WR ONGLY BEEN TREATED AS INCOME FROM OTHER SOURCES, IT WAS HER SUBMISSION THAT THE ISSUE IS WELL- SETTLED BY THE JUDGEMENT OF THE HONBLE APEX COURT IN THE CASE OF PANDIAN CHEMICALS LTD. VS CIT [2003] 262 ITR 278 (SC)/[2003 ] 183 CTR 99 (SC) WHICH WAS FOLLOWED BY ANOTHER JUDGEMENT OF THE HONBLE AP EX COURT NAMELY LIBERTY INDIA VS CIT [2009] 183 TAXMAN 349 (SC)/317 ITR 218 (SC)/[2009] 225 CTR 233 (SC) AND COPIES OF THE ABOVE DECISIONS INCLUDIN G THE OTHER DECISIONS RELIED UPON BY THE DEPARTMENT HAVE BEEN PLACED IN THE DEPA RTMENTAL PAPER BOOK PAGES NO. 91 TO 98. A PERUSAL OF THE SAME IT WAS S UBMITTED WOULD SHOW THAT APART FROM THE ABOVE TWO DECISIONS OF THE APEX COUR T, RELIANCE WAS PLACED ON I.T.A .NO.-414/DEL/2015 PAGE 39 OF 95 K.R.NAIR VS DCIT 262 ITR 669 (KERALA) AND NANJI TOP ANBHAI VS ACIT [2000] 243 ITR 192 (KERALA). 6.4. IT WAS HER SUBMISSION THAT THESE WERE SURPLUS FUND S OF THE ASSESSEE AND THE ASSESSEES NOTES TO ACCOUNTS STATES THAT THESE WERE TEMPORARY PLACEMENT OF SURPLUS FUNDS. THUS, IT WAS SUBMITTED THAT THEY C OULD NOT BE SAID TO BE INTERLINKED WITH THE BUSINESS OF THE ASSESSEE. 7. AT THE CLOSE OF THE ARGUMENTS LD. CIT DR FILED PAP ER BOOK CONTAINING WRITTEN SUBMISSIONS FROM PAGE 1 TO 11 OF PRINCIPAL CIT, NOIDA; COPY OF ASSIGNMENT AGREEMENT DATED 19.10.2007 BETWEEN THE A SSESSEE, JAL AND TAJ EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHORITY (PAGE 1 2 -90); AND THE COPIES OF DECISION RELIED UPON (PAGE 91 TO 98). 7.1. A PERUSAL OF THE WRITTEN SUBMISSION SHOWS THAT THE REVENUE RELIES UPON THE FOLLOWING ARGUMENTS SO AS TO ADDRESS THE PROVIS IONS INVOKED:- 1. SECTION 80- IA(1) GRANTS DEDUCTION IN RESPECT OF ANY PROFITS AND GAINS DERIVED BY AN UNDERTAKING FROM ANY BUSINESS R EFERRED TO IN SUB-SECTION (4) THEREOF. 2. UNDER SUB-SECTION (2), THE DEDUCTION IS ADMISSI BLE FOR A PERIOD OF TEN CONSECUTIVE YEARS OUT OF 20 YEARS BEGINNING WIT H THE YEAR IN WHICH THE UNDERTAKING DEVELOPS AND BEGINS TO OPERAT E THE INFRASTRUCTURAL FACILITY REFERRED IN CLAUSES (A), ( B) AND (C) TO EXPLANATION TO SUB-SECTION (4). 3. AS PER SUB-SECTION (2A), THE ADMISSIBLE DEDUCTI ON IS 100% OF THE PROFITS AND GAINS OF ELIGIBLE BUSINESS FOR FIRST FI VE ASSESSMENT YEARS, 'COMMENCING AT ANY TIME DURING THE PERIOD AS SPECIFIED IN SUB-SECTION (2)' I.E., FROM THE YEAR IN WHICH 'THE UNDERTAKING OR ENTERPRISE DEVELOPS AND BEGINS TO OPERATE ANY INFRA STRUCTURAL FACILITY' AND THEREAFTER, 30% OF PROFITS AND GAINS FOR THE FURTHER PERIOD OF FIVE YEARS. 4. THE CLAUSE (A) OF THE EXPLANATION TO SUB-SECTION (4) COVERS INFRASTRUCTURAL FACILITY BEING ' A ROAD INCLUDING A TOLL ROAD, A BRIDGE OR A RAIL SYSTEM' WHEREAS CLAUSE (B) THEREOF REFERS TO ' A HIGHWAY PROJECT INCLUDING HOUSING OR OTHER ACTIVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT'. 5. SUB-SECTION (6) STATES THAT NOTWITHSTANDING ANYT HING CONTAINED IN SUBSECTION (4), WHERE HOUSING AND OTHER ACTIVITIES ARE AN INTEGRAL I.T.A .NO.-414/DEL/2015 PAGE 40 OF 95 PART OF THE HIGHWAY PROJECT AND THE PROFITS OF WHIC H ARE COMPUTED ON SUCH BASIS AND MANNER AS MAY BE PRESCRIBED, 'SUC H PROFIT SHALL NOT BE LIABLE TO TAX WHERE THE PROFIT HAS BEE N TRANSFERRED TO A SPECIAL RESERVE ACCOUNT AND THE SAME IS ACTUALLY UT ILIZED FOR THE HIGHWAY PROJECT...BEFORE THE EXPIRY OF THREE YEARS. ..'. 6. THE BASIS AND MANNER IN WHICH THE PROFITS OF HO USING AND OTHER ACTIVITIES ARE TO BE COMPUTED FOR THE PURPOSES OF S UB-SECTION (6) ARE SPECIFIED IN RULE 18BBE WHICH MANDATES MAINTENA NCE OF SEPARATE ACCOUNTS FOR THE ACTIVITIES OF HOUSING AND OTHER ACTIVITIES AND SUBMISSION OF A CERTIFICATE SPECIFYING THE AMOU NT CREDITED TO THE RESERVE ACCOUNT AND THE AMOUNT UTILIZED DURING THE RELEVANT PREVIOUS YEAR FOR THE HIGHWAY PROJECT. THE CERTIFIC ATE IS TO BE FURNISHED IN FORM 10CCC WHICH IS TO BE REQUIRED TO BE SUBMITTED ALONG WITH THE RETURN OF INCOME. 7. FROM THE ABOVE, IT IS APPARENT THAT IN RESPECT OF AN ASSESSEE CLAIMING TO BE ENGAGED IN BUILDING AND INFRASTRUCTU RAL FACILITY IN THE NATURE OF A HIGHWAY PROJECT INCLUDING HOUSING A ND OTHER ACTIVITIES BEING AN INTEGRAL PAN OF THE HIGHWAY PRO JECT, THE PROFITS ARISING FROM HOUSING AND OTHER ACTIVITIES WOULD BE EXEMPT FROM TAX UNDER SUB-SECTION (6) WHEREAS THE PROFITS ARISI NG EXCLUSIVELY FROM HIGHWAY PROJECT WOULD BE ADMISSIBLE FOR DEDUCT ION UNDER SUB-SECTION (1) READ WITH SUB-SECTION (2) AND (2A). 8. ANY RELAXATION OF THE PROVISIONS OF CHAPTER VI- A (INCLUDING THE PRESCRIBED RULES THERETO) IS GOVERNED BY SECTION 11 9(2)(C) OF THE ACT WHICH MANDATES ONLY THE BOARD IN THE EVENT THAT IT FINDS IT DESIRABLE OR EXPEDIENT TO AVOID GENUINE HARDSHIP IN ANY CASE, TO DO SO SUBJECT TO THE CONDITION THAT THE DEFAULT (IN COMPLIANCE FOR WHICH THE RELAXATION IS SOUGHT) WAS DUE TO CIRCUMST ANCES BEYOND THE CONTROL OF THE ASSESSEE AND IT HAS COMPLIED WIT H SUCH REQUIREMENT BEFORE THE COMPLETION OF THE ASSESSMENT . FURTHER, EVERY SUCH ORDER IS TO BE LAID BEFORE EACH HOUSE OF PARLIAMENT. 9. THE ASSESSEE HAS BEGUN TO OPERATE THE INFRASTRU CTURAL FACILITY W.E.F 09.08.2012 AND HENCE PRIOR TO THIS DATE IT HA D ONLY PROFITS WHICH ARE ATTRIBUTABLE TO SALE OF LAND, TRANSFERRED TO IT IN TERMS OF CONCESSIONAIRE AGREEMENT. THEREFORE, IN RESPECT OF PROFITS EXCLUSIVELY FROM THE HIGHWAY PROJECT, THE ASSESSEE COULD HAVE MADE A CLAIM FOR DEDUCTION UNDER SECTION 80-IA ONLY W.E.F ASSESSMENT YEAR 2013-14. 10. THE CASE OF THE ASSESSEE WOULD SQUARELY FALL WI THIN CLAUSE (B) OF EXPLANATION TO SUB-SECTION (4) AND THEREFORE, THE A SSESSEE WOULD BE ELIGIBLE FOR EXEMPTION IN RESPECT OF PROFITS FRO M HOUSING AND OTHER ACTIVITIES WHOLLY UNDER SUB-SECTION (6) AND T HE PROVISIONS OF SUB-SECTION (4) ARE NOT MATERIAL FOR THE REASON THA T THE INFRASTRUCTURAL FACILITY HAS NOT COMMENCED OPERATIO N IN THE YEARS UNDER CONSIDERATION. 1L. THE ASSESSEE HAS ADMITTEDLY NOT CREATED ANY SPE CIAL RESERVE. NEITHER HAS IT MAINTAINED SEPARATE ACCOUNTS FOR HOU SING AND OTHER ACTIVITIES NOR HAS IT FURNISHED FORM 10CCC DURING E ITHER WITH RETURN OF INCOME OR DURING THE ASSESSMENT PROCEEDIN GS. I.T.A .NO.-414/DEL/2015 PAGE 41 OF 95 12. THE DENIAL OF CLAIM FOR DEDUCTION BY THE ASSESS ING OFFICER IN THE PROCEEDINGS UNDER SECTION 143(3) FOR A.Y.2011-12 WA S BASED ON VALID GROUNDS AND HAS BEEN UPHELD AS SUCH BY THE CI T (APPEALS) IN THE APPELLATE ORDER FOR A.Y.2011-12 DATED 12.01. 2015. 13. THE PLEA OF THE ASSESSEE THAT IT HAS COMPLIED W ITH THE PROVISIONS OF SECTION 80-IA(6) IN SPIRIT IS FALLACIOUS IN AS M UCH AS FIRSTLY, THE SUBSTANTIVE PROVISIONS OF THE STATUTE, WHICH GRANTS A VESTED RIGHT EITHER TO THE REVENUE OR TO THE ASSESSEE, CANNOT BE IGNORED AND SECONDLY THAT THE CIRCUMSTANCES UNDER WHICH THE PRO VISIONS OF CHAPTER VI-A CAN BE RELAXED HAS BEEN PROVIDED FOR I N THE STATUTE ITSELF IN SECTION 119(2)(C) OF THE ACT. THE ASSESSE E'S ACTION OF CREATING SPECIAL RESERVE POST FACTO AFTER THE CONCL USION OF ASSESSMENT PROCEEDINGS AND FURNISHING A CERTIFICATE OF FORM 10CCC DATED 15.11.2014 IS IRRELEVANT FOR DETERMININ G THE ELIGIBILITY OF THE DEDUCTION. 7.2. THE WRITTEN SUBMISSION OF THE REVENUE FILED BY THE LD.CIT DR ALSO CONTAINS THE FOLLOWING WRITTEN SUBMISSIONS UNDER TH E NAME AND SIGNATURE OF PR. CIT, NOIDA ADDRESSING THE ISSUES RAISED BY THE ASSESSEE IN THE GROUNDS MOVED. THESE ARE EXTRACTED HEREUNDER FOR READY-REF ERENCE:- 1(A) ON THIS, A BRIEF OF TECHNICALITIES INVOLVED H AS BEEN DISCUSSED IN PRECEDING PAGES. IN ADDITION TO THE ABOVE, THE ASSE SSEE'S CLAIM THAT IT DOES NOT FALL WITHIN THE AMBIT OF THE DEVEL OPMENT OF AN INFRASTRUCTURE FACILITY IN THE NATURE OF AN HIGHWAY INCLUDING HOUSING AND OTHER ACTIVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT, IS LEGALLY UNTENABLE BEING BASED ON A SPEC IOUS DISTINCTION MADE BETWEEN AN HIGHWAY, EXPRESSWAY, TOLL, TAILGATE , TOLL PLAZA AND TOLL ROAD, CONTRARY TO PRINCIPLES OF LINGUISTIC AND LEGAL INTERPRETATION LAID DOWN BY HON'BLE SUPREME COURT I N THE CASE OF MCD VS. MOHD.YASIN (142 ITR 737). A) THE TERMS TOLL ROAD, HIGHWAY AND EXPRESSWAY, ON ONE HAND AND TOLL, TOLL GATE AND TOLL PLAZA ON THE OTHER ARE NOT ANALOGOUS TERMS. B) ROAD IS A GENERIC TERM AND HIGHWAY & EXPRESSWAY MEMBERS OF THE SAME GENUS. C) LEVY OF TOLL WILL NOT DENIGRATE THE CHARACTER O F A HIGHWAY. FROM THE ABOVE CITED CASE LAW, IT IS NOTEWORTHY TO MENTION THAT 'HIGHWAY AND EXPRESSWAY ARE OF SAME GENUS' AND 'LEVY OF TOLL WILL NOT DENIGRATE THE CHARACTER OF A HIGHWAY' . THUS IN ESSENCE EXPRESSWAY IS A HIGHWAY AND IS A BROADER CONNOTATIO N THAN A TOLL ROAD. 1(B)IT IS SEEN THAT 'HIGHWAY' AND 'TOLL ROAD' HAVE NOT BEEN USED IN CONCESSIONAIRE AGREEMENT AND THE WORD 'EXPRESSWAY1 HAS BEEN USED SEVERAL TIMES. THERE WAS A CONTRACT BETWEEN AS SESSEE I.T.A .NO.-414/DEL/2015 PAGE 42 OF 95 COMPANY AND TAJ EXPRESSWAY AUTHORITY FOR DEVELOPING , OPERATING AND MAINTAINING A SIX LANE CONTROLLED ACCESS EXPRES SWAY WITH LIMITED ACCESS AND EXIT POINTS BETWEEN NOIDA AND AG RA AND A FEES/TOLL WAS PAYABLE TO ASSESSEE COMPANY FOR VEHIC LES USING THE EXPRESSWAY AT TOLL PLAZAS. 1(C) IT HAS BEEN CONTENDED BY THE ASSESSEE IN SCRUT INY PROCEEDINGS THAT LAND RECEIVED FOR SALE AND/OR DEVELOPMENT UNDE R THE CONCESSION AGREEMENT IS IN FACT A PART OF THE COMPE NSATION RECEIVED BY US FOR DEVELOPING, OPERATING AND MAINTA INING THE TOLL ROAD, CONTRADICTING THE FACILITY AS DEFINED IN CONC ESSION AGREEMENT. IT CONTRADICTS WITH CONCESSIONAIRE AGREE MENT AS THERE ISN'T MENTION OF TOLL ROAD WHEREAS EXPRESSWAY FINDS REPEATED MENTIONS. AGAIN ONLY TOLL BOOTH AND PLAZA IS MENTIO NED ONLY AT VERY FEW INSTANCES IN THE AGREEMENT. EVEN QUOTING F ROM THE OBJECTS OF THE AGREEMENT (AT PARA 20 OF THE ORDER): A. 'THE GOVERNMENT OF UP HAS SET UP TEA FOR ANCHOR ING DEVELOPMENT OF TAJ EXPRESSWAY PROJECT, WHICH, INTER ALIA, INCLUDES CONSTRUCTION OF SIX LANE, 160KM LONG SUPER EXPRESSWAY WITH SERVICE ROADS AND ASSOCIATED FACILI TIES CONNECTING NOIDA AND AGRA, PASSING THROUGH A VIRGIN AREA ALONG THE YAMUNA RIVER'. 1(D)IT IS SEEN FROM THE OBJECTS OF THE AGREEMENT TH AT THE FACILITY IS AN EXPRESSWAY RATHER THAN AT TOLL ROAD. HIGHWAY AS PER DEFINITION, IS A PUBLIC ROAD SPECIALLY AN IMPORTANT ROAD THAT JOIN S CITIES OR TOWNS TOGETHER. INTERTWINING THE OBJECTS OF AGREEMENT AND THE DEFINITION OF HIGHWAY THE FACILITY REFERS TO HIGHWAY AND NOT J UST TOLL ROAD AS CONTENDED BY THE ASSESSEE. HENCE IT DOES NOT FALL I N CLAUSE (A) OF EXPLANATION TO SECTION 80IA(4)(I). CORRELATING IT W ITH CASE LAW CITED, (MCD VS. MOHD.YASIN (142 ITR 737).), HIGHWAY AND EX PRESSWAY ARE MEMBERS OF THE SAME GENUS. 1(E) AS PER AGREEMENT BETWEEN TEA (TAJ EXPRESSWAY A UTHORITY) AND THE ASSESSEE GROUP, AN EXPRESSWAY WAS TO BE CONSTRU CTED BETWEEN TWO PROMINENT CITIES AND TOLL WOULD BE CHAR GED ON THAT EXPRESSWAY. AT THAT VERY TIME AND EVEN NOW, THIS EX PRESSWAY IS A PROMINENT LANDMARK IN INFRASTRUCTURE. MERELY HAVI NG MENTION OF TOLL PLAZAS IN AGREEMENT CAN'T CHANGE THE GENUS OF HIGHWAY/EXPRESSWAY AS DISCUSSED CITING CASE LAW OF MCD VS. MOHD.YASIN (142 ITR 737), ADJUDICATED BY THE SAME A PEX COURT. 2(A).ON THE ISSUE OF WHETHER PROFITS AND GAINS EARN ED FROM SALE/SUBLEASE OF LAND DURING THE FINANCIAL PERIOD A S THIS ACTIVITY IS IN AMBIT OF INFRASTRUCTURE FACILITY DEVELOPMENT, CL AUSE (B) OF EXPLANATION TO SECTION 80IA(4)(I) OF THE ACT IS QUO TED WHICH REFERS TO A 'HIGHWAY PROJECT INCLUDING HOUSING OR OTHER AC TIVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT' IS APPLICABLE TO THE EXTANT CASE. 2(B)AS PER AGREEMENT, IT MENTIONS UNDER THE HEAD 'G RANT OF CONCESSION' THAT THE CONCESSIONAIRE SHALL BE GRANTE D, BY TEA, RIGHTS FOR LAND DEVELOPMENT OF 25 MILLION SQ. METER S OF LAND ALONG THE PROPOSED EXPRESSWAY FOR COMMERCIAL, AMUSEMENT, INDUSTRIAL, INSTITUTIONAL AND RESIDENTIAL DEVELOPMENT. THE ASSE SSEE HIMSELF I.T.A .NO.-414/DEL/2015 PAGE 43 OF 95 TREATS IT AS INTEGRAL PROJECT BUT REFUTES TO APPLY CLAUSE (B) OF EXPLANATION TO SECTION 80IA(4)(I). HOLDING ITS CONT ENTION, IT STRESSES THE INCOME FROM SALE OF LAND AS DERIVED ONE. ON CAR EFUL PERUSAL OF THE AGREEMENT, WHILE THE ASSESSEE ACCEPTS THE CONCE SSION FOR A PERIOD OF 36 YEARS COMMENCING FROM THE DATE OF COMM ENCEMENT, IS IT WILLING TO GIVE BACK THE LAND GIVEN AS INCENTIVE AFTER 36 YEARS TO THE TEA? THE LAW IS CLEAR THAT ALLIED ACTIVITIES CA NNOT FALL IN CLAUSE (A). DURING THE YEAR, THE ENTIRE PROFITS WERE DERIV ED FROM ALLIED ACTIVITIES AND HENCE THE DEDUCTION GRANTED FOR PROF ITS DERIVED FROM ALLIED ACTIVITIES CANNOT BE ADJUDICATED UNDER CLAUS E (A) OF EXPLANATION TO SECTION 80IA(4). IF THE ALLIED ACTIV ITIES ELIGIBLE FOR DEDUCTION IS INCLUDED IN CLAUSE (A) OF EXPLANATION TO SECTION 80IA(4), THEN WHAT IS THE INTENT OF CLAUSE (B) IN T HE INCOME TAX ACT, 1961. 2(C). DRAWING FROM THE ABOVE, THE CONTENTION OF THE REVENUE IS THAT IT FALLS UNDER CLAUSE (B) OF EXPLANATION TO SECTION 80 IA(4)(I). IF IT FALLS IN CLAUSE (B), THEN IT IS SUBJECT TO NON-OBSTANTE P ROVISIONS OF SUB- SECTION (6) OF SECTION 80IA. IF ASSESSEE HAS ERRED IN INCLUDING ALLIED ACTIVITIES IN CLAUSE (A) INSTEAD OF CLAUSE ( B), THEN WHAT IS THE UTILITY OF CLAUSE (B). 3. ANOTHER ISSUE PERTAINING TO ALLOWABILITY OF DE DUCTION U/S 80IA(2) IS WITH REGARDS TO COMMENCEMENT OF ACTUAL OPERATIONS. SUB-SECTION (2) OF SECTION 80 IA READS AS UNDER: 'THE DEDUCTION SPECIFIED IN SUB-SECTION (1) MAY, AT THE OPTION OF THE ASSESSES BE CLAIMED BY HIM FOR ANY 10 CONSECUTI VE ASSESSMENT YEARS OUT OF FIFTEEN YEARS BEGINNING FRO M THE YEAR IN WHICH THE UNDERTAKING OR THE ENTERPRISE DEVELOPS AN D BEGINS TO OPERATE ANY INFRASTRUCTURAL FACILITY.....'. 3(A) THE LANGUAGE IS CLEAR FROM SUB-SECTION (2) OF SECTION 80IA OF THE ACT. THE CONJOINT LETTER 'DEVELOPS AND BEGINS' SIGN IFIES ACTUAL COMMENCEMENT OF THE INFRASTRUCTURAL FACILITY. THE D ATE OF INCORPORATION OF THE ASSESSEE CONCERN CANNOT BY ANY STRETCH OF LOGIC MEAN THAT COMMENCEMENT OF INFRASTRUCTURAL FAC ILITY HAS TAKEN PLACE. THOUGH THE ACT SAYS IT IS AT OPTION OF THE ASSESSEE BUT THE SAME HAS TO BE IN RIGHT NOMENCLATURE I.E TH E FACILITY SHOULD HAVE BEGUN TO RUN AND IN THIS EXTANT CASE, THROWN O PEN TO THE PUBLIC. THE ASSESSEE HAS BEGUN TO OPERATE THE INFRA STRUCTURE FACILITY W.E.F. 09.08.2012 WHEN THE EXPRESSWAY WAS INAUGURATED BY THE HON'BLE CHIEF MINISTER OF UP AND HENCE PRIOR TO THIS DATE, IT HAD ONLY EARNED PROFITS FROM SALE OR SUB LEASE OF L AND AND THEREFORE, THE ASSESSEE WOULD BE INELIGIBLE FOR DEDUCTION/EXEMPTION U/S 80IA OF THE ACT FOR AY 2011 -12'. 3(B) AS PER SUB-CLAUSE (C) OF CLAUSE (I) OF SUB-SEC TION (4) OF SECTION 80IA OF THE ACT, THE DEDUCTION WOULD BE ADMISSIBLE TO TH E ENTERPRISE WHICH 'HAS STARTED OR STARTS OPERATING AND MAINTAIN ING THE INFRASTRUCTURE FACILITY ON OR AFTER 01.04.1995' AND THEREFORE, THE DEDUCTION TO THE ASSESSEE WHICH HAS ENTERED INTO AN AGREEMENT FOR DEVELOPING, OPERATING AND MAINTAINING AN INFRAS TRUCTURE FACILITY, UNDER PROVISIONS OF SECTION 80IA(4) OF TH E ACT WOULD BE ADMISSIBLE ONLY FROM THE YEAR IN WHICH THE OPERATIO N OF FACILITY I.T.A .NO.-414/DEL/2015 PAGE 44 OF 95 BEGINS. THE WORD 'STARTED' IS INTENDED TO COVER CAS ES WHERE THE COMMENCEMENT IS AFTER 01.04.1995. THE WORDING OF CL AUSE (C) OF SUB-SECTION (4) REITERATES THE CONDITION OF SUB-SEC TION (2) IN AS MUCH AS IT MAKES THE START OF THE OPERATION AND MAI NTENANCE OF INFRASTRUCTURE FACILITY, A PREREQUISITE FOR THE GRA NT OF DEDUCTION. 3(C) AS PER PROVISO TO SUB-CLAUSE (C) TO SECTION 80 IA(4)(I) OF THE ACT, WHEREIN IT IS ALSO PROVIDED THAT IF DEVELOPER OF AN INFRASTRUCTURE FACILITY TRANSFERS THE SAME, THEN THE TRANSFEREE EN TERPRISE WOULD ALSO BE ELIGIBLE FOR DEDUCTION, MEANING THEREBY THE ENTERPRISE WHICH ONLY DEVELOPS INFRASTRUCTURE FACILITY IS ELIG IBLE FOR DEDUCTION AND IN CASE DEVELOPER TRANSFERS THE FACILITY FOR OP ERATION OR MAINTENANCE TO ANOTHER ENTERPRISE THEN THE TRANSFER EE WOULD BE ELIGIBLE FOR DEDUCTION FOR UNEXPIRED PERIOD . THE C ASE OF THE ASSESSEE IS ONE IN WHICH IT HAS ENTERED INTO AN AGR EEMENT FOR DEVELOPING, OPERATING AND MAINTAINING INFRASTRUCTUR E FACILITY, A DISTINCT CATEGORY OF ELIGIBLE PROJECT SPECIFICALLY COVERED UNDER SUB- CLAUSE (III) OF CLAUSE (C) OF SECTION 80IA(4) OF TH E ACT AND THE ASSESSEE HAS NOT ENTERED INTO AN AGREEMENT ONLY FOR DEVELOPING OF INFRASTRUCTURE FACILITY AS ENVISAGED IN SUB-CLAUSE (I) OF CLAUSE (C) OF SUB-SECTION (4) AND AS PER PROVISIONS OF THE ACT, T HE DEDUCTION WOULD BE ADMISSIBLE ONLY ON THE COMMENCEMENT OF THE OPERATION. THERE CAN BE AN INSTANCE WHERE AN ASSESSEE HAS ENTE RED INTO AN AGREEMENT WITH CENTRE/STATE GOVT/STATUTORY AUTHORIT Y ONLY FOR DEVELOPMENT OF INFRASTRUCTURE FACILITY AND AFTER CO MPLETION OF DEVELOPMENT, THE DEVELOPER ASSESSEE TRANSFERS SUCH FACILITY TO ANOTHER ENTITY AND IN CONSIDERATION THEREOF, RECEIV ES CONSIDERATION AND EARNS PROFITS, THEN TRANSFEROR IS ENTITLED TO D EDUCTION ARISING TO IT AND FOR THIS SITUATION, THE STATUTE OF THE AC T PROVIDES THAT IN SUCH CASES ALSO, THE DEDUCTION WOULD BE AVAILABLE T O THE DEVELOPER AND THEREFORE A PROVISION HAS BEEN PROVID ED TO CLAUSE (C) OF SUB-SECTION (4) OF SECTION 80IA OF THE ACT. 3(E) THE REAL SIDE OF THE STORY IS THAT DURING THIS ASSESSMENT YEAR AND ALSO TO FEW SUCCESSIVE ASSESSMENT YEARS TILL AY 201 2-13, THERE WAS HUGE BOOM IN REAL ESTATE IN NATIONAL CAPITAL RE GION OF DELHI, INCLUDING NOIDA AND GREATER NOIDA WHERE THE ASSESSE E CONCERN HAS BEEN GIVEN VAST LAND PARCEL AS PART OF INCENTIV ES FOR BUILDING EXPRESSWAY. IF ONE ANALYZES THE TREND OF PROFITS FR OM SALE OF THE LAND FROM AY 2008-09 TO THE PRESENT DAY, THE FIGURE S SHOW THAT THE HUGE PROFITS WERE ACHIEVED FROM AY 2009-10 TO A Y 2012-13 AS THERE WAS SPURT IN REAL ESTATE. THE ASSESSEE CONCER N WAS THE BIGGEST REAL ESTATE PLAYER IN THIS AREA AND THUS, W AS THE BIGGEST BENEFACTOR. IN AN ATTEMPT TO CONCEAL THIS WINDFALL PROFIT, THE DESIGNING OF THE TAX PLANNING WAS SUCH THAT BY GIVI NG IT COLOUR OF DEDUCTION U/S 80IA LARGE CHUNK OF PROFITS MEANT FOR TAXATION BE CONCEALED AND DELIBERATELY AVOIDED. 4. THE CLAIM OF DEDUCTION BY THE ASSESSEE IS IRRELE VANT AND INCONSISTENT WITH ITS PROFESSED PRINCIPAL OF INTERP RETATION IGNORING THE MERITS AND FACTS OF THE CASE .IF THE ALLIED ACT IVITIES ELIGIBLE FOR DEDUCTION IS INCLUDED IN CLAUSE (A) OF EXPLANATION TO SECTION 80IA(4), THEN WHAT IS THE INTENT OF CLAUSE (B) IN T HE INCOME TAX ACT, I.T.A .NO.-414/DEL/2015 PAGE 45 OF 95 1961. ALSO THEN, WHAT IS THE UTILITY OF CLAUSE (B). MOREOVER, THEN WHAT IS THE INTENT OF CLAUSE (B) OF EXPLANATION TO SECTION 80IA(4), UTILITY AND USAGE OF SECTION 80IA(6) ALONG WITH ITS ASSOCIATED RULE 18BBE AND FORM 10CCC. ON GROUNDS OF APPEAL NO. 2.3. AND 4 THE ASSESSEE HAS RAISED THE GROUNDS OF LD CIT(APPEA LS) GOING AGAINST LAW AND PRINCIPLES OF NATURAL JUSTICE, HAS BASED THE ORDER ON ERRORS AND NON-APPRECIATION OF FACTS, SUSPICION AND CONJECTURES AND HAS NOT ADMITTED ADDITIONAL EVIDENCE. THE COPIE S OF ORDERS OF ASSESSING OFFICER AND LD CIT(APPEALS) HAVE BEEN ANN EXED AS ANNEXURE 1 & 2. ON PERUSAL OF EXHAUSTIVE ANALYSIS O F FACTS AND CIRCUMSTANCES OF THE CASE, THERE IS NOTHING TO BE A LLEGED THAT LD CIT(APPEALS) HAVE NOT FOLLOWED CANONS OF JUSTICE. I NSTEAD SUFFICIENT OPPORTUNITIES HAVE BEEN PROVIDED AND MAT TER HAS BEEN ADJUDICATED ON FACTS AND CIRCUMSTANCES OF THE CASE. ON OTHER INCOME GROUNDS NO. 5-8 HAVE BEEN RAISED ON ADDITIONS MAIN ON OTHER GROUNDS AND THE SAME HAS BEEN EXHAUSTIVELY DISCUSSE D IN ORDERS OF L_D CIT(APPEALS) AS WELL AS THAT OF ASSESSING OF FICER. ON DISALLOWANCE OF DEDUCTION U/S 80IA GROUNDS NO. 9-12 HAVE BEEN RAISED ON DISALLOWANCE O F DEDUCTION U/S 80IA WHICH DEALT AT LENGTH IN PRECEDING PAGES. EVEN GOING BY THE PRINCIPLES LAID DOWN IN THIS CASE, THE FACTS SA Y THAT AS PER AGREEMENT BETWEEN TEA (TAJ EXPRESSWAY AUTHORITY) AN D THE ASSESSEE GROUP, AN EXPRESSWAY WAS TO BE CONSTRUCTED BETWEEN TWO PROMINENT CITIES AND TOLL WOULD BE CHARGED ON T HAT EXPRESSWAY. AT THAT VERY TIME AND EVEN NOW, THIS EX PRESSWAY IS A PROMINENT LANDMARK IN INFRASTRUCTURE. MERELY HAVI NG MENTION OF TOLL PLAZAS IN AGREEMENT CAN'T CHANGE THE GENUS OF HIGHWAY/EXPRESSWAY AS DISCUSSED CITING CASE LAW OF MCD VS. MOHD.YASIN (142 ITR 737), ADJUDICATED BY THE SAME A PEX COURT. AT NO POINT HAS THE HON'BLE TRIBUNAL HELD THAT AN E XPRESSWAY IS A TOLL ROAD AND SPECIFIED THE REASONS THEREOF. 8. THE LD.AR IN REPLY SUBMITTED THAT THE ARGUMENT OF THE LD. CIT DR THAT THE CLAIM CAN BE MADE UNDER SECTION 80IA(6) BUT IN 2013-14 ASSESSMENT YEAR AND NOT IN THE YEAR UNDER CONSIDERATION, IS NEITHER HERE NOR THERE AS IT AMOUNTS TO MAKING A MOCKERY OF ASSESSEES CLAIM. I T WAS HIS SUBMISSION THAT BEFORE ADVANCING SUCH AN ARGUMENT THE REVENUE NEEDS TO FIRST CROSS THE HURDLE AS TO HOW A TOLL ROAD CAN BE CLASSIFIED TO BE A HIGHWAY PROJECT. IT WAS RE-ITERATED THAT THE PARTIES CONCERNED WERE AWARE T HAT A TOLL ROAD WAS BEING I.T.A .NO.-414/DEL/2015 PAGE 46 OF 95 CONTEMPLATED AND THE FACT THAT THE TOLL FEES COLLEC TED WILL BE VERY LOW AND THUS TO MAKE UP FOR THIS DEFICIT AND TO ENSURE THAT A CONSTANT FLOW OF FUNDS REMAINS AVAILABLE TO THE ASSESSEE TO CARRY OUT THIS MAMMOTH INFRASTRUCTURAL INTEGRATED PROJECT FOR THE BENEFIT OF THE STATE THE ASSESSEE WAS ALLOWED TO DEVELOP THESE PARCELS OF LAND SO AS TO E NSURE THAT THERE IS A CONSTANT FLOW OF FUNDS TO MEET THE HEAVY FINANCIAL REQUIREME NTS FOR THE INFRASTRUCTURAL FACILITY. IT WAS SUBMITTED THAT THE FACT THAT THE ASSESSEE HAS CONSTRUCTED THE AGRA EXPRESSWAY WHICH IS PROBABLY ONE OF THE BEST I N THE WORLD, IT WAS SUBMITTED IS A FACT ON RECORD AND IT WAS HIS ARGUME NT THE ASSESSEE IS CONFIDENT THAT CONSIDERING THE RELEVANT PROVISIONS, FACTS AND CIRCUMSTANCES, THE PAST HISTORY OF THE ISSUE EVIDENT FROM THE ORDERS OF THE ASSESSING OFFICERS IN 2009- 10 & 2010-11 AYS AND THE ORDER OF THE ITAT QUASHIN G THE REVISIONARY ORDER PASSED BY CIT, NOIDA U/S 263 THE ISSUE IS FULLY COV ERED IN HIS FAVOUR BY EXPLANATION (A) OF SECTION 80IA(4) AND THUS UNLESS HE IS DIRECTED TO SPECIFICALLY ADDRESS THE WITHOUT PREJUDICE GROUND RAISED ADDRESS ING THE ALLOWABILITY OF THE CLAIM U/S 80IA(6) HE WOULD RELY ON HIS MAIN ARGUMEN T NAMELY THE FACT THAT IN TWO CONSECUTIVE YEARS TWO DIFFERENT ASSESSING OFFIC ERS HAVE CONSIDERED THE CASE TO BE FULLY COVERED UNDER SECTION 80IA(4); AND THE ORDER OF THE ITAT CONSIDERING THE VERY SAME FACTS AND THE PROVISIONS QUASHED THE PROCEEDINGS U/S 263 IN THE FIRST YEAR WHEREIN THE POSITION WAS SOUGHT TO BE UP SET BY THE REVENUE THE ISSUE OF ALLOWABILITY OF CLAIM U/S 80IA(4) IS A SETTLED ISSUE. AS THE LEGAL POSITION IS WELL SETTLED AS THE ALLOWABILITY OF THE CLAIM HAS T O BE CONSIDERED IN THE FIRST YEAR AND ADMITTEDLY THE FIRST YEAR IS IN FAVOUR OF THE A SSESSEE. I.T.A .NO.-414/DEL/2015 PAGE 47 OF 95 8.1. IT WAS VEHEMENTLY SUBMITTED THAT THE INNUENDO BY T HE LD.CIT DR THAT THE DATE OF INAUGURATION AS 09.08.2012 WAS DISCOVE RED BY THE ASSESSING OFFICER WAS INCORRECT ON FACTS AS THE RECORD WOULD SHOW THAT THIS SPECIFIC DATE WAS POINTED OUT BY THE ASSESSEE ITSELF. IT WAS HIS SUBMISSION THAT ONCE THE USER OF FUNDS IS CONSIDERED IT WOULD BE SEEN THAT T HE UTILIZATION OF FUNDS FAR EXCEEDS THE FUNDS GENERATED. ACCORDINGLY IT WAS SU BMITTED THAT UNLESS THE ASSESSEE IS REQUIRED TO ARGUE THE ALLOWABILITY OF ITS CLAIM UNDER SECTION 80IA(6), HE IS UNDER INSTRUCTIONS NOT TO ARGUE FURT HER. 9. SINCE CONSIDERING THE GROUNDS RAISED, THE REVENUE HAD ALREADY ARGUED THAT THE WITHOUT PREJUDICE GROUND CANNOT BE ALLOWED RELYING ON THE FINDINGS RECORDED BY THE CIT(A) AND SUPPLEMENTED BY THE ARGU MENTS BEFORE THE BENCH THE LD.AR WAS DIRECTED TO COMPLETE HIS ARGUMENTS ON THE GROUNDS RAISED UNLESS THE GROUNDS ARE BEING GIVEN UP. ONCE THE IS SUES HAD BEEN ARGUED BY THE REVENUE WHERE WE UNDERSTAND THAT THE DEPARTMENT AL STAND CLARIFIED BY MS. S.VERMA, CIT DR WAS THAT IF AT ALL THE DEDUCTION WA S TO BE ALLOWED IT COULD BE CONSIDERED IN 2013-14 AY ONLY AND AS FAR AS THE CLA IM IN THE YEAR UNDER CONSIDERATION WAS CONCERNED THE DEDUCTION COULD NEI THER BE ALLOWED UNDER THE MAIN GROUND NOR UNDER THE WITHOUT PREJUDICE GROUND RAISED RELYING ON SUB- SECTION (6) OF SECTION 80IA. 9.1. ACCORDINGLY, ADDRESSING THE ALTERNATE PRAYER, LD. AR SUBMITTED THAT THE ISSUE IS NOT AN AFTER BY THE ASSESSEE. INVITING AT TENTION TO THE ORDERS OF THE TAX AUTHORITIES, IT WAS SUBMITTED THAT IT HAS BEEN AGIT ATED WITHOUT PREJUDICE TO THE MAIN PRAYER RIGHT FROM THE STAGE OF THE ASSESSING O FFICERS OBJECTIONS TO I.T.A .NO.-414/DEL/2015 PAGE 48 OF 95 ALLOWING THE CLAIM UNDER SECTION 80IA(4). IT WAS S UBMITTED THAT A PERUSAL OF THE ASSESSMENT ORDER WOULD SHOW THAT THE ASSESSING OFFICER HAS DISCUSSED, CONSIDERED AND DISMISSED THE SAID ISSUE. THUS, THE SUBMISSIONS OF THE LD.CIT DR THAT THE ASSESSEE IS NOT SURE UNDER WHICH SECTION THE DEDUCTION IS TO BE CLAIMED IT WAS SUBMITTED IS WITHOUT MERIT. IT WAS HIS SUBMISSION THAT THE RECORD WOULD SHOW THAT ALL ALON G THE ASSESSEE HAS BEEN SURE THAT THE DEDUCTION WAS TO BE CLAIMED UNDER SUB -SECTION (4) OF SECTION 80IA HOWEVER WHEN THE AO OBJECTS TO ALLOWABILITY OF THE SAME, HE CREATES A SITUATION WHERE THE ASSESSEE HAS BEEN FORCED TO EXAMINE THE O PTIONS FROM ALL ANGLES. IT WAS HIS ARGUMENT THAT IT IS VERY EASY TO SIT ON THE CHAIR AND FIND FAULTS WITH THE PERSON ACTUALLY WORKING ON THE GROUND. IN THE FACTS OF THE PRESENT CASE IT WAS HIS SUBMISSION THAT THE ASSESSEE ACTING UPON THE LE GISLATIVE INTENT EVIDENT FROM THE STATUTE HAS CONSTRUCTED A TOLL ROAD AND THERE IS NO DISPUTE ON THE DATE WHEN IT WAS INAUGURATED AND THE DATE FROM WHICH TH E TOLL COLLECTION STARTED. HOWEVER ON A READING OF THE SPECIFIC SECTION WHICH SPECIFICALLY USES THE WORD DEVELOPS THE LEGISLATURE WAS WELL AWARE THAT IT I S AN ONGOING ACTIVITY AS THE STATUTE HAS NOT USED THE WORD DEVELOPED. THE SPE CIFIC PROVISION AT THE COST OF REITERATION, IT WAS SUBMITTED HAS BEEN INTERPRETED BY TWO DIFFERENT ASSESSING OFFICERS IN A CERTAIN MANNER AND THE INTERPRETATION WHICH THE REVENUE WANTS TO PUT FORWARD HAS ALREADY BEEN TESTED AND EXAMINED BY THE ITAT AS THE PROCEEDINGS UNDER SECTION 263 HAVE BEEN DIRECTED TO BE QUASHED BY A VERY SPEAKING ORDER BY THE ITAT. THE GENERAL AND VAGUE A RGUMENT THAT THE ISSUE IS DECIDED IN REVENUES FAVOUR IT WAS SUBMITTED IS A MIS-STATEMENT OF FACTS AND I.T.A .NO.-414/DEL/2015 PAGE 49 OF 95 SELF-EVIDENT FROM RECORD. SPECIFIC PARA 22 AT PAGE 26 OF THE ORDER OF THE ITAT, IT WAS SUBMITTED RECORDS THAT THE APEX COURT HAS UPHEL D THE OBSERVATION OF THE HIGH COURT RECORDING THE IMMENSE PUBLIC IMPORTANCE OF THE EXPRESSWAY BY WHICH THE STATE GAINS ADVANTAGES BY THE CREATION OF THE FIVE ZONES FOR INDUSTRY, RESIDENCE AMUSEMENT WHICH WOULD BE COMPLIMENTARY TO THE EXPRESSWAY LEADING TO PLANNED DEVELOPMENT OF THIS INDUSTRIALLY BACKWARD AREA HOLDING THE EXPRESSWAY AND THE FIVE PARCELS OF LAND BEING COMPL EMENTARY TO EACH OTHER AND PARTS OF AN INTEGRAL SCHEME AND THUS FOR A PUBL IC PURPOSE. IN THESE FACTS AND CIRCUMSTANCES, IT WAS SUBMITTED THERE CAN BE SA ID TO BE NO DOUBT IN HOLDING THAT THE ASSESSEE WAS CORRECT IN MAKING ITS CLAIM UNDER SECTION 80IA(4). HOWEVER ON ACCOUNT OF THE INSISTENCE OF T HE ASSESSING OFFICER TO DENY THE CLAIM MADE U/S 80IA(4) THE ALTERNATE CLAIM WAS MADE. THE CLAIM U/S 80IA(4) HAVING BEEN DISMISSED, IT WAS SUBMITTED WAS ARGUED WITHOUT PREJUDICE BEFORE THE CIT(A). THE MAIN ARGUMENT THEREIN WAS A LSO THAT THE CLAIM IS ALLOWABLE UNDER SECTION 80IA(4). ACCORDINGLY MAKING THE ASSESSEES POSITION CLEAR IT WAS SUBMITTED THAT WITHOUT PREJUDICE TO T HE MAIN ARGUMENT, THE ASSESSEE SOUGHT TO PLACE ADDITIONAL EVIDENCES BEFOR E THE CIT(A) AS ADMITTEDLY THE COMPLIANCES FOR MAKING THE CLAIM U/S 80IA(6) WE RE NOT COMPLIED WITHIN THE YEAR UNDER CONSIDERATION AND HAVE BEEN COMPLIED WIT H IN THE BALANCE SHEETS FOR 31.03.2009 TO 30.03.2011 IN 2013-14 AY. THE CO NCLUSION OF THE CIT(A) THAT THE ISSUE HAS TO BE DECIDED UNDER SECTION 119(2)(C) BY THE BOARD IT WAS SUBMITTED IS AN INCORRECT AND MISCHIEVOUS READING O F THE STATUTORY PROVISIONS. THE SAID CONCLUSION IT WAS SUBMITTED IS OBLIVIOUS T O RULE 46 A OF THE IT RULES I.T.A .NO.-414/DEL/2015 PAGE 50 OF 95 WHICH ON FACTS PERMIT THE RAISING OF FRESH EVIDENCE S BEFORE THE CIT(A) AND THE RULE ELABORATELY SETS OUT UNDER WHAT CIRCUMSTANCES FILING OF FRESH EVIDENCES CAN BE ALLOWED. THE ARGUMENT THAT SUFFICIENT OPPORT UNITY WAS AVAILABLE TO THE ASSESSEE IT WAS SUBMITTED IS OF NO RELEVANCE AS THE FILING OF FRESH EVIDENCE HAS BEEN NECESSITATED AS THE MAIN PRAYER WAS DISMISSED BY THE AO HOLDING THAT IN THE EARLIER YEARS THE ASSESSEE HAS RELIED ON SUB-SE CTION (4) OF SECTION 80IA THUS THE CLAIM NOW U/S 80IA(6) CANNOT BE ACCEPTED. THE AO ALSO REJECTING THE PRAYER RELIED ON THE FACT THAT IN TERMS OF SUB-SECT ION (6) THE ASSESSEE WAS REQUIRED TO MAINTAIN A RESERVE IN A SPECIFIC MANNER AND TO UTILIZE IT IN A SPECIFIC MANNER WHICH ALSO FORMED THE BASIS OF DISM ISSING THE ALTERNATE PRAYER. IN THE CIRCUMSTANCES, IT WAS SUBMITTED THE ASSESSEE WAS REQUIRED TO FILE ADDITIONAL EVIDENCE BEFORE THE CIT(A) WHO FAILED TO EXERCISE HIS AUTHORITY FAIRLY AND APPROPRIATELY. THE FACT THAT THE EVIDENCES SOUG HT TO BE FILED WERE NOT AVAILABLE AT THE TIME THE ASSESSMENT PROCEEDINGS IS SELF-EVIDENT AS THE NEED FOR MAKING THE PRAYER ADMITTEDLY AROSE ONLY DURING THE ASSESSMENT PROCEEDINGS FOR THE FIRST TIME WHEN THE ASSESSEE WAS FACED WITH THE SCENARIO THAT THE DEDUCTION UNDER SECTION 80IA(4) WAS NOT BEING ALLOW ED. IT WAS SUBMITTED IT IS THEN, THAT, THE NECESSITY TO FILE THE FRESH EVIDENC E AROSE. IT WAS HIS SUBMISSION THAT THERE IS AMPLE CASE LAW AVAILABLE WHEREIN THE PROCEDURAL REQUIREMENTS OF FILING THE FORMS ALONGWITH THE RETURN HAVE BEEN PER MITTED EVEN DURING THE ASSESSMENT STAGE. ACCORDINGLY THIS HARSH AND UNREA SONABLE READING OF THE LEGAL PROVISIONS INVOKED WAS ASSAILED. IT WAS SUBM ITTED THAT THE ASSESSEE HAS NO OBJECTION IF AFTER ADMITTING THE EVIDENCE ITS CO RRECTNESS AND SUFFICIENCY IS I.T.A .NO.-414/DEL/2015 PAGE 51 OF 95 EXAMINED BY THE AO. THE ADDITIONAL EVIDENCES, IT WA S SUBMITTED IS AVAILABLE AT PAGES 52 TO 55 OF THE PAPER BOOK. ACCORDINGLY IT W AS A PRAYER THAT IN THE EVENTUALITY THE ASSESSEE FAILS IN THE MAIN GROUND T HEN THE PRAYER MADE IN THE ALTERNATE GROUND MAY BE CONSIDERED AND FOR DECIDING THE SAME THE FRESH EVIDENCES MAY BE ADMITTED AS THE EVIDENCES ARE MATE RIAL AND CRUCIAL FOR DECIDING THE ALTERNATE CLAIM AND THE ISSUE MAY BE S ENT BACK. 9.2. REPLYING TO THE ARGUMENTS OF THE LD. CIT DR THAT T HERE HAS TO BE DIRECT NEXUS FOR ALLOWABILITY OF ASSESSEES CLAIM IT WAS SUBMITTED THAT IT IS A FACT ON RECORD THAT THESE INCOMES ARE DERIVED FROM THE BUSI NESS OF THE ASSESSEE WHICH IS AN INTEGRATED BUSINESS THUS IT IS NOT A CASE WHE RE SURPLUS AND IDLE FUNDS HAVE BEEN KEPT IN BANKS WAITING FOR OPPORTUNITIES T O INVEST. THE FOLLOWING JUDGEMENTS, COPIES OF WHICH HAVE BEEN PLACED AT SER IAL NO. 7 OF THE CASE LAW PAPER BOOK WAS HEAVILY RELIED UPON COMMISSIONER OF INCOME TAX VS DHARAM PAL PREM CHAND LTD. 317 ITR 0353 (DEL); CIT VS ELTEK SG S P.LTD. [2008] 300 ITR 6 (DELHI); CIT VS LOK HOLDINGS (BOM.) 308 ITR 356. INFACT IT WAS HIS SUBMISSION THAT THE NATURE OF ASSESSEES BUSINESS AS CONSIDERE D BY THE ITAT HAS ALREADY CONSIDERED THESE ISSUES CONCLUSIVELY AS THE PRESENT FORUM IS CONCERNED AS THE ISSUE IS PURELY FACTUAL. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. WE FIND ON A CONSIDERATION OF THE FACTS RECORDED IN THE ASSESSMENT ORDER, WHICH WE NOTE HAVE BEEN UPHELD BY THE CIT(A) , ALONGWITH THE ARGUMENTS OF THE PARTIES BEFORE THE BENCH ADVANCED IN THE PRE SENT PROCEEDINGS WHEN THESE ARE CONSIDERED ALONGSIDE THE ISSUES ADDRESSED AND THE ARGUMENTS OF THE I.T.A .NO.-414/DEL/2015 PAGE 52 OF 95 RESPECTIVE PARTIES WHICH HAVE BEEN RECORDED IN DETA IL IN THE ORDER DATED 13.04.2015 OF THE CO-ORDINATE BENCH IN ITA NO.3339/ DEL/2014 PERTAINING TO 2009-10 AY , WE FIND THAT THE LD.AR ON FACTS WAS JUSTIFIED IN HIS CLAIM THAT THE ISSUE ADDRESSED IN THE PRESENT APPEAL IS COVERE D BY THE AFORESAID ORDER OF THE ITAT. WE NOTE THAT THE LD. AR WAS AT PAINS TO CANVASS THAT THE ISSUES ON FACTS INCLUDING THE SPECIFIC PROVISION INVOKED; THE STATUTORY PRINCIPLES INVOKED TO INTERPRET THE SAME HAVE ALL BEEN TAKEN INTO CONS IDERATION BY THE ITAT AND WE NOTE THAT AFTER ADDRESSING THE MAIN ISSUE THE LD. A R EXPRESSED HIS RELUCTANCE TO ADDRESS THE ALTERNATE CLAIM U/S 80IA(6) ADVANCED BY WAY OF WITHOUT PREJUDICE ARGUMENTS. THE RELUCTANCE TO ARGUE THE W ITHOUT PREJUDICE CLAIM DESPITE THE RAISING OF THE GROUND WHICH THEN APPEAR ED SURPRISING CAN BE BETTER APPRECIATED NOW AFTER GOING THROUGH THE GAMUT OF AR GUMENTS ADVANCED BY THE PARTIES WHICH WE FIND IS A VIRTUAL REPETITION OF TH E ARGUMENTS ADVANCED BEFORE THE CO-ORDINATE BENCH. WE FIND ON A DETAILED CONSI DERATION OF THE ISSUES ADDRESSED BY THE CO-ORDINATE BENCH IN THE AFORESAID ORDER THAT THE RELUCTANCE TO ADDRESS THE ALTERNATE CLAIM ON FACTS WAS THUS NO T MISPLACED AS THE CO- ORDINATE BENCH, IT IS SEEN HAS FULLY CONSIDERED THE ISSUES CONSIDERING MORE OR LESS SIMILAR ARGUMENTS OF THE PARTIES BEFORE THE BE NCH. THUS ON FACTS THE PRELIMINARY BELIEF EXPRESSED BY THE LD.AR THAT THE ASSESSEE DESERVES TO SUCCEED ON ITS MAIN PLEA WE FIND WAS NOT MISPLACED. THE REASONS FOR COMING TO THE ABOVE PRELIMINARY CONCLUSION ARE ELABORATED HER EINAFTER IN GREATER DETAIL. FOR WHICH PURPOSES, WE FIRST PROPOSE TO MAKE A DETA ILED EXAMINATION OF THE ISSUES, ARGUMENTS, REASONING AND CONCLUSIONS ARRIVE D AT IN THE AFORESAID ORDER. I.T.A .NO.-414/DEL/2015 PAGE 53 OF 95 WE FIND THAT THE ARGUMENTS ADVANCED BY THE PARTIES IN THE PRESENT PROCEEDINGS WHICH HAVE BEEN EXTRACTED FROM THE WRITTEN SUBMISSI ONS FILED AND BROUGHT OUT AS ORALLY ARGUED ARE IN FACT VERBATIM TO WHAT WAS A RGUED BEFORE THE CO-ORDINATE BENCH. IT IS SEEN THAT ON BEHALF OF THE ASSESSEE T HE ARGUMENTS ADVANCED IN RESPECT TO THE CHALLENGE POSED TO THE REVISIONARY O RDER PASSED BY COMMISSIONER, NOIDA U/S 263 IN 2009-10 AY ALLEGING THAT IT WAS BAD IN LAW AS THE ASSESSMENT ORDER U/S 143(3) WAS CLAIMED TO BE N EITHER ERRONEOUS NOR PREJUDICIAL TO THE INTERESTS OF REVENUE AND WAS CLA IMED TO HAVE BEEN PASSED CORRECTLY AFTER DUE ENQUIRY WHEREIN IT WAS SUBMITTE D THE ITAT HELD THAT THE AO INSTEAD OF TAKING ONE OF THE POSSIBLE VIEWS INFACT TOOK THE ONLY CORRECT VIEW AVAILABLE. THE DEPARTMENTAL STAND CONSIDERED BY TH E ITAT ON THE OTHER HAND IT IS SEEN HAS CONSIDERED THE VERY SAME ARGUMENTS AS A DVANCED BY THE LD.CIT DR IN THE PRESENT PROCEEDINGS WHERE THE REVENUE HAD AR GUED THAT THE RELEVANT PROVISIONS HAVING BEEN INCORRECTLY APPRECIATED BY THE AO ON FACTS WHERE DEDUCTION U/S 80IA(4) HAS WRONGLY BEEN GRANTED AND IF AT ALL DEDUCTION HAD TO BE ALLOWED IT WAS TO BE CONSIDERED U/S 80IA(4) EXPL ANATION (B) R.W.S 80IA(2) AND THAT TOO ONLY ON FULFILLING THE REQUIREMENTS AS MANDATED U/S 80IA(6) AND NOT IN THE YEAR UNDER CONSIDERATION. WE FIND SIMIL AR ARGUMENTS HAVE BEEN ADVANCED BEFORE US ALSO. WE NOTE THAT THE CO-ORDIN ATE BENCH ACCORDINGLY IN ORDER TO DECIDE THE CLAIMS AND COUNTER-CLAIMS OF TH E PARTIES UNDERTOOK A DETAILED ENQUIRY AND MADE AN EXAMINATION OF FACTS A ND THE RELEVANT PROVISIONS OF THE ACT GOING ON TO FINALLY TO QUASH THE PROCEED INGS U/S 263 AND WENT ON TO HOLD THAT THE CLAIM OF DEDUCTION WAS ALLOWABLE AND HAS BEEN CORRECTLY ALLOWED I.T.A .NO.-414/DEL/2015 PAGE 54 OF 95 U/S 80IA(4) HOLDING THAT THE BUSINESS ACTIVITIES OF THE ASSESSEE COMPANY FELL WITHIN THE AMBIT OF CLAUSE (A) OF EXPLANATION TO SE CTION 80IA(4). IN ORDER TO DECIDE THE ISSUE IT GOES WITHOUT SAYING THAT THE RE LEVANT PROVISIONS WERE NECESSARILY REQUIRED TO BE ADDRESSED BY THE CO-ORDI NATE BENCH. WE EXTRACT THE RELEVANT PROVISIONS CONSIDERED BY THE CO-ORDINATE B ENCH IN 2009-10 AY WHICH IS THE BASE YEAR FORM THE AFORESAID ORDER AS THE IS SUES ADDRESSED IN THE PRESENT PROCEEDINGS REFER TO THE VERY SAME PROVISIONS. 10.1. THE RELEVANT PROVISION READS AS UNDER:- DEDUCTION IN 'RESPECT OF PROFITS AND GAINS FROM' IN DUSTRIAL UNDERTAKINGS OR ENTERPRISES ENGAGED IN INFRASTRUCTU RE DEVELOPMENT, ETC. 80IA [(1) WHERE THE GROSS TOTAL INCOME OF AN ASSESS EE INCLUDES ANY PROFITS AND GAINS DERIVED BY AN UNDERTAKING OR AN E NTERPRISE FROM ANY BUSINESS REFERRED TO IN SUB-SECTION (4) (SUCH BUSIN ESS BEING HEREINAFTER REFERRED TO AS THE ELIGIBLE BUSINESS), THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS SECTION, BE ALLOW ED, IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, A DEDUCTION OF AN AMO UNT EQUAL TO HUNDRED PER CENT OF PROFITS AND GAINS DERIVED FROM SUCH BUSINESS FOR TEN CONSECUTIVE ASSESSMENT YEARS.] (2) THE DEDUCTION SPECIFIED IN SUB-SECTION (1) MAY, AT THE OPTION OF THE ASSESSEE, BE CLAIMED BY HIM FOR ANY TEN CONSECUTIVE ASSESSMENT YEARS OUT OF FITEEEN YEARS BEGINNING FROM THE YEAR IN WHI CH THE UNDERTAKING OR THE ENTERPRISE DEVELOPS AND BEGINS TO OPERATE ANY I NFRASTRUCTURE FACILITY OR STARTS PROVIDING TELECOMMUNICATION SERVICE OR DE VELOPS AN INDUSTRIAL PARK (OR DEVELOPS A SPECIAL ECONOMIC ZONE) RENDERED TO IN CLAUSE (III) OF SUB-SECTION (4) OR GENERATES POWER OR COMMENCES TRA NSMISSION OR DISTRIBUTION OR POWER (OR UNDERTAKES SUBSTANTIAL RE NOVATION AND MODERNISATION OF THE EXISTING TRANSMISSION OR DISTR IBUTION LINES. (3) XXXXXX (4) THIS SECTION APPLIES TO- (I) ANY ENTERPRISE CARRYING ON THE BUSINESS L[OF (I ) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAINTAINING] ANY INFRASTRUCTURE FACILITY WHICH FULF ILS ALL THE FOLLOWING CONDITIONS, NAMELY: A) IT IS OWNED BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM OF SUCH COMPANIES 2[ OR BY AN AUTHORITY OR A BOARD OR A CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONSTITUTED UNDER ANY CEN TRAL OR STATE ACT.] I.T.A .NO.-414/DEL/2015 PAGE 55 OF 95 (5) XXXXXXX (6) THE AMOUNT OF DEDUCTION IN THE CASE OF THE BUSI NESS OF A SHIP SHALL BE THIRTY PER CENT OF THE PROFITS AND GAINS DERIVED FROM SUCH SHIP FOR A PERIOD OF TEN CONSECUTIVE ASSESSMENT YEARS INCLUDIN G THE INITIAL ASSESSMENT YEAR PROVIDED THAT THE SHIP - (I) IS OWNED BY AN INDIAN COMPANY AND IS WHOLLY USE D FOR THE PURPOSES OF THE BUSINESS CARRIED ON BY IT ; (II) WAS NOT, PREVIOUS TO THE DATE OF ITS ACQUISITI ON BY THE INDIAN COMPANY, OWNED OR USED IN INDIAN TERRITORIAL WATERS BY A PERSON RESIDENT IN INDIA; AND (III) IS BROUGHT INTO USE BY THE INDIAN COMPANY AT ANY TIME DURING THE PERIOD BEGINNING ON THE 1ST DAY OF APRIL, 1991 AND ENDING ON THE 31ST DAY OF MARCH, 1995. 10.2. IT MAY BE APPROPRIATE TO REFER TO THE SPECIFIC GRO UNDS RAISED BY THE ASSESSEE BEFORE THE CO-ORDINATE BENCH WHICH WERE RE QUIRED TO BE CONSIDERED. A PERUSAL OF SPECIFIC GROUND NOS. 5, 7, 8 AND 9 BEF ORE THE CO-ORDINATE BENCH WOULD SHOW THAT THE ARGUMENTS ADVANCED IN RESPECT T HERETO ON FACTS ARE REPEATED IN THE PRESENT PROCEEDINGS ALSO. A PERUSA L OF GROUND NOS. 5 & 8 RAISED BEFORE THE CO-ORDINATE BENCH, IT IS SEEN COV ERS THE MAIN CLAIM ADVANCED BY THE ASSESSEE IN THE PRESENT PROCEEDINGS. GROUND NO. 7 BEFORE THE CO- ORDINATE BENCH, WE FIND ADDRESSES THE DISALLOWANCE OF INTEREST ON FDRS AND DEPRECIATION I.E. THE ISSUES ADDRESSED IN GROUND NO S.5 TO 8 IN THE PRESENT PROCEEDINGS. THE ISSUE ADDRESSED IN GROUND NO. 9 AD DRESSES THE ALTERNATE CLAIM ADVANCED BY THE ASSESSEE. FOR READY-REFERENCE , THESE RESPECTIVE GROUNDS ARE REPRODUCED HEREUNDER:- GROUNDS COSNDIERED BY ITAT IN ITA NO.3339/DEL/2014 5. THAT, INTER ALIA, THE APPELLANT IS ENTITLED TO DEDUCTION U/S 80IA(4) ON THE FACTS AND LAW INVOLVED AS A DEVELOPER OF THE INFRASTRUCTURE FACILITY, EVEN IF IT HAS NOT COMMENCED OPERATING AND MAINTAINING BUT IS DEVELOPING THE SAME, IN VIEW OF DIRECT DECISIONS IN ITS FAVOUR INCLUDING INTER ALIA REPORTED IN ACIT V. BHARAT UDYOG LTD. 118 ITO 336 WHICH FOLLOWS THE DECISION OF THE I.T.A .NO.-414/DEL/2015 PAGE 56 OF 95 HON'BLE APEX COURT IN K. P. VERGHESE V. ITO 131 ITR 597 (SC) AND AS HELD IN TRG INDUSTRIES (P) LTD. V. OCIT (2013) 35 TAXMANN.COM 253 (AMRITSAR - TRIBUNAL). 7. THAT THE LD. CIT HAS ERRED IN STATING THAT THE LD. AO HAS NOT APPLIED HIS MIND TO OTHER CLAIMS FOR EXAMPLE DEDUCTION IN RESPECT OF INTEREST ON FDS AND WHETHER DEPRECIATION WAS ADMISSIBLE EVEN WHILE THE PROJECT WAS NOT COMPLETE. THESE CLAIMS HAVE BEEN PROCESSED AND CORRECTLY ALLOWED AFTER DUE CONSIDERATION. THERE IS NO FINAL FINDING BY THE LD. CIT THAT THESE CLAIMS ARE INCORRECT. THE ASSESSEE WAS DULY ENTITLED TO THESE CLAIMS WHICH ARE CORRECTLY ALLOWED AND AS SUCH TOO SETTING ASIDE THE ASSESSMENT TO BE MADE DE NOVO IS UNLAWFUL AND THE ORDER OF THE LD. CIT DESERVES TO BE QUASHED. 8. THAT THE ORDER OF THE LD. CIT IS BASED ON ERRONEOUS VIEWS AND NON-APPRECIATION OF THE FACTS AND LAW INVOLVED INCLUDING BINDING CASE LAW SUPPORTING THE APPELLANT WHICH INCLUDE DECISIONS OF THE HON'BLE APEX COURT AND HON'BLE JURISDICTIONAL HIGH COURTS. INTER ALIA THE LD. CIT HAS ERRED IN NOT FOLLOWING THE RATIO OF THE DECISION IN 131 ITR 597 (SC) IN THE CASE OF K.P. VARGHEESE V. ITO WHEREIN IT WAS HELD THAT LITERAL CONSTRUCTION THAT LEADS TO ABSURDITY, UNJUST RESULT OR MISCHIEF IS TO BE AVOIDED. CONSTRUCTION WHICH PERMITS ACHIEVING THE OBVIOUS INTENTION OF THE LEGISLATURE AND PROVISIONS OF RATIONAL CONSTRUCTION ARE TO BE ADOPTED. AS SUCH TOO, THE ASSESSEE'S CLAIM UNDER SECTION 801A(4) HAS BEEN CORRECTLY ALLOWED BY THE LD. AO. THE LD. CIT HAS ERRED IN SETTING ASIDE THE ASSESSMENT. 9. THAT WITHOUT PREJUDICE, IN THE ALTERNATIVE, AS THE APPELLANT IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA(6), EVEN AS PER THE VIEW OF THE LD. CIT, THEN IN ANY CASE ON THE FACTS AND LAW INVOLVED, THE ASSESSEE IS ENTITLED TO RELIEF AND DEDUCTION IN THIS MATTER, BE IT UNDER 801A(4) OR 80IA(6). SETTING ASIDE THE ASSESSMENT TO BE MADE DE NOVO IS UNLAWFUL, UNCALLED FOR AND WOULD BE MERELY AN ACADEMIC EXERCISE IF PERMITTED. (EMPHASIS PROVIDED) 10.3. A PERUSAL OF THE ABOVE WOULD SHOW THAT THE CLAIM O F THE ASSESSEE THAT THE ISSUES STANDS CONSIDERED BY WAY OF A BINDING PRECED ENT WAS NOT MISPLACED. HENCE AS OBSERVED THE RELUCTANCE OF THE LD.AR TO AD DRESS THE WITHOUT PREJUDICE CLAIM OF ALLOWABILITY OF ASSESSEES CLAIM OF DEDUCT ION U/S 80IA(6) CAN BE BETTER APPRECIATED AND AS WE HAD NOTED INFACT THE LD.AR HA D TO BE DIRECTED TO COMPLETE HIS ARGUMENTS ON ALL THE GROUNDS WHICH THE ASSESSEE WISHED TO PRESS I.T.A .NO.-414/DEL/2015 PAGE 57 OF 95 AS THE ALLOWABILITY OF THE ALTERNATE CLAIM ALSO STO OD OPPOSED BY THE REVENUE. HOWEVER NOW, AS NOTED ON MINUTELY GOING THROUGH THE ARGUMENTS OF THE RESPECTIVE PARTIES AND THE FACTS ON RECORD WHICH NE CESSARILY INCLUDE THE REASONING ON FACTS AND LAW ADOPTED BY THE ASSESSING OFFICER WHICH HAS BEEN UPHELD BY THE CIT(A), WE FIND THAT THE DEPARTMENTAL STAND AS BROUGHT OUT IN THE ORDERS IN THE PRESENT PROCEEDINGS HAS BEEN FULL Y CONSIDERED AND ADDRESSED BY THE PARTIES BEFORE THE CO-ORDINATE BENCH WHERE T HE REVISIONARY POWER EXERCISED BY THE LD. COMMISSIONER WAS A SUBJECT MAT TER OF CONSIDERATION BY VIRTUE OF THE CHALLENGE POSED BY THE ASSESSEE IN AP PEAL BEFORE ITAT. WE FIND THAT THE ARGUMENTS AND THE WRITTEN SUBMISSIONS ADVA NCED BY THE LD. CIT DR IN THE PRESENT PROCEEDINGS UNDER THE NAME AND SIGNA TURE OF PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, NOIDA WHICH HAS BEEN EX TRACTED IN THE EARLIER PART OF THIS ORDER, IT IS SEEN ARE VERBATIM TO WHAT HAS BEEN ARGUED BEFORE THE CO-ORDINATE BENCH AND HAS BEEN REPRODUCED BY THE CO -ORDINATE BENCH AT PAGES 40 TO 43 OF THE SAID ORDER. WE FURTHER FIND T HAT THE CO-ORDINATE BENCH IN ORDER TO DECIDE WHETHER THE REVISIONARY POWER EXERC ISED BY THE LD. COMMISSIONER QUA THE ASSESSMENT ORDER UNDER CHALLEN GE DATED 30.12.2011 IN 2009-10 AY WAS ERRONEOUS AND PREJUDICIAL TO THE INT ERESTS OF THE REVENUE NECESSARILY HAD AN OCCASION TO CONSIDER THE VERY SA ME PROVISION; THE VERY SAME FACTS AND EVENTS; THE FACTS BORNE OUT FROM THE VERY SAME AGREEMENTS AND THE VERY SAME ARGUMENTS BY THE PARTIES. IT IS SEEN THA T CONSIDERING THESE FACTS, ARGUMENTS AND PROVISIONS OF LAW THE CO-ORDINATE BEN CH NOTED IN PARA 18 AT I.T.A .NO.-414/DEL/2015 PAGE 58 OF 95 PAGES 53 AND 54 OF THEIR ORDERS THAT THE FOLLOWING PRIME ISSUES EMERGED FOR THEIR CONSIDERATION FOR ADJUDICATION: PARA 18 .. .. (I) WHETHER IN VIEW OF CONCESSION AGREEMENT AND ALL IED DOCUMENTS, THE ASSESSEE CLAIM FALLS U/S 80IA(4)(I) EXPLANATION CLAUSE (A) OR (B) AND WHETHER THE ASSESSEE IS DEVEL OPING A ROAD (INCLUDING TOLL ROAD) OR HIGHWAY? (II) WHETHER IN THE BACKGROUND OF CONCESSION AGREEM ENT AND JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F NAND KISHORE GUPTA VS STATE OF UP, THE AO WAS CORRECT IN TREATING THE SUBJECT YEAR AS FALLING IN THE ELIGIBLE PERIOD U/S 80IA(2) OF THE ACT IN THE LIGHT OF THE FACT THAT THE ASSESSEE DID COMM ENCE THE DEVELOPMENT OF THE INFRASTRUCTURE FACILITY SINCE 5. 4.2007 AND WAS ACTIVELY DEVELOPING THE INFRASTRUCTURE FACILITY DURING THE ASSESSMENT YEAR UNDER CONSIDERATION? (III) WHETHER THE AO TOOK A PLAUSIBLE REASONABLE AN D SUSTAINABLE VIEW BY ALLOWING THE ASSESSEE CLAIMED DEDUCTION UND ER CLAUSE (A) OF EXPLANATION TO SECTION 80IA(4)(I) OF THE ACT? (IV) WHETHER THE ASSESSMENT ORDER QUESTIONED AND ALLEGE D BY THE LD. CIT, IS UNSUSTAINABLE AND NOT IN ACCORDANCE WITH LA W AND HAS BEEN PASSED WITHOUT APPLICATION OF MIND, IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, SPECIALLY IN THE LIGHT OF THE PROVISIONS OF SECTION 80IA(4) R/W ITS SUB-SECTIONS (2) & (6) AND OTHER RELEVANT PROVISIONS OF THE ACT AND THE INCOME TAX RULES, 196 2. (V) WHETHER THE CIT NOIDA WAS IN ERROR BY INVOKING PRO VISIONS OF SECTION 263 OF THE ACT IN THE PECULIAR FACTS AND CIRCUMSTAN CES OF THE PRESENT CASE, SPECIALLY WHEN HE HAS NOT DECISIVELY CONCLUDE D THE ISSUE I.E. WHETHER THE ASSESSEE IS DEVELOPING A TOLL ROAD OR A HIGHWAY PROJECT AND LEFT IT MIDWAY WITHOUT ANY DECISIVE CONCLUSION/DIRE CTION? (VI) WHETHER THE LD. CIT EXERCISED ITS POWERS U/S 263 O F THE ACT IN REVISING THE ASSESSMENT ORDER ON THE ISSUE OF ALLOW ABILITY OF DEDUCTION U/S 80IA(4) OF THE ACT ON INTEREST EARNED FROM FDR AND WITHOUT SHOW CAUSING THE ASSESSEE IN THE NOTICE U/S263 OF THE AC T &ON THE ISSUE OF ALLOWABILITY OF DEPRECIATION AND, THEREFORE, THE SA ME IS NOT VALID AND VOID AB INITIO ON THESE ISSUES. (EMPHASIS PROVIDED) 10.4. A PERUSAL OF THE ISSUES AS SUMMED UP IN ISSUE (I) TO ISSUE (III) WOULD SHOW THAT THE ISSUES ADDRESSED IN THE MAIN PLEA OF THE ASSESSEE IN THE PRESENT I.T.A .NO.-414/DEL/2015 PAGE 59 OF 95 PROCEEDINGS STANDS CONSIDERED AND ADDRESSED BY THE CO-ORDINATE BENCH. A CAREFUL READING OF THE AFORESAID ORDER, WE NOTE WOU LD SHOW THAT THE CO-ORDINATE BENCH HAS EXTRACTED THE SPECIFIC PROVISION IN PARA 19 AND THEREAFTER IN PARA 20 (AT PAGES 56 TO 64) HAS EXTRACTED THE RELEVANT PORT IONS OF THE CONCESSION AGREEMENT DATED 07.02.2003 BETWEEN TEA AND THE ASSE SSEE AND PROCEEDED TO ANALYSE THE SAME IN PARA 21. WE FURTHER NOTE THAT T HE ARGUMENTS ADVANCED IN THE PRESENT PROCEEDINGS BY THE PARTIES ARE IDENTICA L TO WHAT HAS BEEN ADVANCED BEFORE THE CO-ORDINATE BENCH. THE ARGUMENTS ON BEH ALF OF THE ASSESSEE RECORDED IN PARAS 22 TO 23 READ ALONGWITH THE DEPAR TMENTAL STAND AS ADDRESSED IN PARA 24 BY THE CO-ORDINATE BENCH SHOWS THAT THE VERY SAME ARGUMENTS HAVE BEEN REPEATED BEFORE US. IT IS SEEN FROM THE AFORESAID ORDER OF THE CO-ORDINATE BENCH THAT THE ARGUMENTS ADVANCED O N BEHALF OF THE ASSESSEE ARE A VIRTUAL REPETITION OF WHAT HAS BEEN ARGUED BE FORE US. IT IS SEEN THAT THE CO-ORDINATE BENCH HAS CONSIDERED THESE ARGUMENTS AN D ON A READING OF PARA 25 TO 29 ADDRESSING THE LEGAL POSITION ON THE SPEC IFIC PROVISIONS AS SETTLED BY THE VARIOUS COURTS IN PARA NOS. 30 AND 31 OF THEIR ORDER AND TAKING NOTE OF THE OBJECTIONS OF THE LD. CIT DR ADDRESSED IN PARA 32 H AVE PROCEEDED TO CONSIDER THE RATIO OF THE VARIOUS DECISIONS CITED AND RECORD THEIR AGREEMENT WITH THE VIEW CANVASSED BY THE ASSESSEE TO HOLD IN PARA 34 T HAT A PROVISION IN A TAXING STATUTE GRANTING INCENTIVES FOR PROMOTING GROWTH AN D DEVELOPMENT SHOULD BE CONSTRUED LIBERALLY SO AS TO ADVANCE THE OBJECTIVE OF THE PROVISION AND NOT TO DEFEAT IT. WE FURTHER NOTE THAT THE CO-ORDINATE B ENCH IN PARA 38 SUMMING UP THE RESPECTIVE STAND OF THE PARTIES BEFORE THE CO-O RDINATE BENCH PROCEEDED I.T.A .NO.-414/DEL/2015 PAGE 60 OF 95 FROM PARA 39 ONWARDS TO RECORD, THE SUBMISSIONS OF THE ASSESSEE ON FACTS ON RECORD INCLUDING THE AGREEMENTS; THE OBJECTS GUIDIN G THE SAME AND PROJECT DETAILS AND THE FACTS ON RECORD. SPECIFIC NOTE MAY BE MADE OF PARA 43 AT PAGES 80 WHEREIN BEFORE THE CO-ORDINATE BENCH IT WAS ARGU ED ON BEHALF OF THE ASSESSEE THAT LAND FOR DEVELOPMENT IS ACTUALLY A CONSIDERATION LIKE THE TOLL-FEE SINCE THE TOLL FEE ALONE WOULD NOT HAVE BEEN ABLE T O INSURE POSITIVE RETURN ON EQUITY ON THE PROJECT. IN PARA 44 THE CO-ORDINATE BENCH IT IS SEEN HAS AD DRESSED THE LITIGATION IN THE APEX COURT BY THE ASSESSEE IN A PIL ALLEGING INADEQUATE CONSIDERATION FOR ACQUISITION OF LAND AMONGST OTHER ISSUES WHEREIN THE VERY SAME AGREEMENTS/SCHEME AND ACTIVITIES WAS A SUBJECT MATTER OF CONSIDERATION. A PERUSAL OF PARAS 49, 50 AND 51 OF THE CO-ORDINATE BENCH BRINGS OUT THE ARGUMENTS ADVANCED BY THE PARTIES BEFORE THE CO-ORD INATE BENCH ON THE SPECIFIC PROVISION OF LAW APPLICABLE. A PERUSAL OF THE SAME SHOWS THAT THE ARGUMENTS ARE IDENTICAL IN THE PRESENT PROCEEDINGS ALSO. THE CO-ORDINATE BENCH IT IS SEEN CONSIDERING THESE UNDERTOOK TO CON SIDER THE MEANING OF THE WORDS HIGHWAY , EXPRESSWAY, TOLL PLAZA AND ROAD INCLUDING TOLL ROAD IN PARAS 52 TO 57 AND THEREAFTER CONSIDERING HOW T HESE WORDS HAVE BEEN USED IN THE AGREEMENT PROCEEDED TO REJECT THE DEPAR TMENTAL VIEW CANVASSED NAMELY THAT THE ASSESSEE IS ENGAGED IN THE DEVELOPM ENT OF INFRASTRUCTURE FACILITY OF A HIGHWAY INCLUDING HOUSING OR OTHER A CTIVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT. ON THE BASIS OF THE DISCUS SION IT WAS THE CONSIDERED OPINION OF THE CO-ORDINATE BENCH THAT THE BUSINESS ACTIVITIES OF THE ASSESSEE COMPANY FELL WITHIN THE AMBIT OF CLAUSE (A) OF EXPL ANATION TO SECTION 80IA(4). I.T.A .NO.-414/DEL/2015 PAGE 61 OF 95 IN VIEW THEREOF, THE CO-ORDINATE BENCH IN PARA 58 CONCLUDED THAT ON ACCOUNT OF THESE OBSERVATIONS AND FINDINGS THE ALTERNATE CL AIM OF THE ASSESSEE AND THE OBJECTIONS OF THE CIT DR ABOUT NON-COMPLIANCE OF RE QUIREMENTS OF SUB-SECTION (6) OF SECTION 80IA BECOME ACADEMIC AND INFRUCTUOUS . 10.5. A PERUSAL OF PARA 61 TO 63 OF THE ORDER OF THE CO- ORDINATE BENCH BRINGS OUT THE SUBMISSIONS ON FACTS RELATABLE TO THE OTHER ISSUES CANVASSED IN THE PRESENT PROCEEDINGS. A FURTHER READING OF PARAS 64 TO 69 WOULD BRING OUT THAT THE SUBMISSIONS BEFORE THE CO-ORDINATE BENCH HAVE B EEN REPEATED BY THE REVENUE IN THE PRESENT PROCEEDINGS ALSO. SIMILARLY THE REPLY OF THE ASSESSEE THEREON ADDRESSED IN PARA 70 BY THE CO-ORDINATE BEN CH IT IS SEEN IS RE-ITERATED IN THE PRESENT PROCEEDINGS BEFORE US. WE NOTE THAT BEFORE THE CO-ORDINATE BENCH THE REPRESENTATION FOR THE ASSESSEE AND THE R EVENUE WAS MADE BY THE VERY SAME LD.AR AND THE CIT DR HENCE THE CANDID BEL IEF OF THE LD.AR THAT THE ISSUES ARE CONSIDERED AND DECIDED. TO REVERT BACK TO THE ORDER OF THE CO- ORDINATE BENCH, WE FIND THAT IN PARAS 71 TO 85 CONS IDERING THE POSITION OF LAW ON THE FACTS AS MARSHALLED IT WAS CONCLUDED BY THE CO-ORDINATE BENCH THAT THE ISSUES AS FORMULATED AS ISSUE NO.(I),(II) AND(III) WERE TO BE DECIDED IN FAVOUR OF THE ASSESSEE. 10.6. IN THE FACE OF THIS CLEAR CUT FINDING OF THE CO-OR DINATE BENCH AVAILABLE ON RECORD AS FAR AS THE PRESENT PROCEEDINGS ARE CONCER NED WE FIND THAT NO CASE HAS BEEN MADE OUT BY THE LD. CIT DR ON THE BASIS OF REPEATING THE ARGUMENTS ALREADY CONSIDERED BY THE CO-ORDINATE BENCH WHEREIN NO DISTINGUISHING FACT, CIRCUMSTANCE, POSITION OF LAW WAS CITED ON BEHALF O F THE REVENUE TO CANVASS A I.T.A .NO.-414/DEL/2015 PAGE 62 OF 95 CONTRARY VIEW EXCEPT A REPETITION OF THE ARGUMENTS ON FACTS AND LAW AS ADVANCED BEFORE THE CO-ORDINATE BENCH. THE SAID DEP ARTMENTAL STAND IS NOTWITHSTANDING THE FACT THAT APART FROM THE ORDER OF THE ITAT IN THE BASE YEAR ITSELF WHICH STANDS FINALIZED WE ALSO NOTE THAT THE RE ARE TWO SEPARATE AND DISTINCT ORDERS PASSED BY TWO DIFFERENT ASSESSING O FFICERS CONSIDERING THE VERY SAME FACTS AND THE PROVISIONS OF LAW IN THE ORDERS PASSED U/S 143 (3) WHO HAVE CONSIDERED AND ALLOWED AN IDENTICAL CLAIM OF THE AS SESSEE BY WAY OF SCRUTINY ASSESSMENTS U/S 143(3). THIS IS ALSO NOTWITHSTANDIN G THE FACT THAT THE ISSUE HAS TO BE SETTLED IN THE FIRST YEAR I.E. THE INITIA L YEAR WHICH WAS 2009 10 ASSESSMENT YEAR. 10.7. IN THE SAID BACKGROUND, WE WOULD BRIEFLY SUM UP TH E FACTS IN THE PRESENT PROCEEDINGS WHEREIN WE FIND THAT THE VIEW EXPRESSED BY THE AO HAS BEEN UPHELD BY THE CIT(A) WITHOUT ADDRESSING THE SUBMISS IONS EXTRACTED IN THE ORDER. A PERUSAL OF THE REASONING ADOPTED BY THE AO IN THE PRESENT PROCEEDINGS SHOWS THAT THE FACT THAT THE TOLL ROAD WAS INAUGURATED ON 09.08.2012 I.E. DURING THE PERIOD RELEVANT TO A.Y. 2013 2014 WAS A FACT TAKEN NOTE OF BY AND THE AO IN THE PRESENT PROCEEDINGS ALSO AND T HIS FACT WAS ONE OF THE FOUNDATIONAL FACTS NOTED BY LD.CIT, NOIDA IN HIS OR DER U/S 263. IN THE FACTS OF THE PRESENT CASE ALSO THE AO HELD THAT IT WAS FOUND THAT THE INCOME DECLARED FROM BUSINESS DURING THE YEAR DID NOT CONTAIN ANY I NCOME FROM THE INFRASTRUCTURE FACILITY BEING TOLL ROAD. ON NOTICING THE ABOVE FAC TS, A SHOW CAUSE DATED. 13.03.2014 WAS ISSUED TO THE ASSESSEE REQUIRING CLA RIFICATION AND JUSTIFICATION ON THE CLAIMS MADE BY THE ASSESSEE U/S. 80IA(I), WHICH HAS BEEN ABSTRACTED I.T.A .NO.-414/DEL/2015 PAGE 63 OF 95 ABOVE. THE EXISTENCE OF THIS FACT WAS ALSO ONE OF THE MAI N REASONS CONSIDERED BY CIT, NOIDA. THE REPLIES OF THE ASSESSEE IN THE A OS WORDS SHOWS THAT THE ARGUMENTS ADVANCED BEFORE THE CO-ORDINATE BENCH AND REPEATED BEFORE US INTACT WERE ARGUED BEFORE US ALSO. THE ASSESSEE HA S ARGUED BEFORE THE AO AS FOUND RECORDED IN THE ASSESSMENT ORDER THAT THE ASSESSEE CLAIMS THAT HE IS COVERED U/S. 80 IA (4) (I) R/W EXPLN. (A). THE ASSE SSEE HAS REFERRED TO SEC. 80 IA (2) WHEREBY IT HAS BEEN CONTENDED THAT THE DEDUCTIO N U/S. 80 IA IS ALLOWABLE FOR ANY 10 CONSECUTIVE ASSESSMENT YEARS OUT OF 15 YEARS BEGINNING FROM THE YEAR IN WHICH THE UNDERTAKING OR ENTERPRISE DEVELOPS OR BEG INS TO OPERATE ANY INFRASTRUCTURE FACILITY. IT HAS BEEN FURTHER SUBMIT TED THAT SEC. 80 IA APPLIES AS PROVIDED IN. CLAUSE (I) OF SUB - SEC, 4 OF SEC. 80 IA TO ANY ENTERPRISE CARRYING ON THE BUSINESS OF (I) DEVELOPING OR (II) OPERATING AN D MAINTAINING OR (III) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRUCTURE FACILI TY WHICH FULFILS ALL THE CONDITIONS. A READING OF THE FOLLOWING REASONING O F THE AO SHOWS THAT THE FACTUM OF INCOME FROM SALE OF PLOTS ETC. AS BEFORE THE CIT, NOIDA WAS A FACT TAKEN NOTE OF. THE AO NOTES THAT THE ISSUE OF DEDUCTION U/S. 80 IA HAS BEEN CAREFULLY EXAMINED W.R.T. MATERIAL ON RECORD AND VA RIOUS EXPLANATIONS AND DOCUMENTS FILED BY THE ASSESSEE. IN THIS CASE, DURI NG THE YEAR, THE ASSESSEE HAS EARNED INCOME FROM SALE OF PLOTS, SALE OF BUILT UP PROPERTIES, LEASE RENTALS, TRANSFER FEES, FDR BANK INTEREST, PROFIT ON ACCOUNT CURRENCY FLUCTUATIONS AND MISC. INCOME. THE ASSESSEE HAS CLAIMED THE COMPLETE INCOME FROM ALL THESE SOURCES AS EXEMPTED U/S. 80 IA (4) (I) R/W. EXPLN. (A). THE SAID CLAIM WAS REJECTED BY THE AO HOLDING THAT THE CLAIM OF ASSESSEE THAT HIS INCOME IS I.T.A .NO.-414/DEL/2015 PAGE 64 OF 95 EXEMPTED U/S. 80 IA (4) (I) R/W. EXPLN. (A) IS NOT TENABLE UNDER THE FACTS OF THE CASE. THE REASONING ADOPTED IN SUBSEQUENT PARAS IT IS S EEN IS IDENTICAL TO WHAT HAS BEEN CANVASSED BY THE REVENUE BEFORE THE C O-ORDINATE BENCH AND CONSIDERED BY IT AND ALSO RE-ITERATED IN THE PRESEN T PROCEEDINGS BEFORE US BY THE REVENUE. IT IS SEEN THAT THE AO CONSIDERING TH E PROVISIONS IN THE FACTS WHERE TOLL ROAD WAS INAUGURATED ON 09.08.2012; WH ERE THE DISCLOSURES IN THE NOTES TO ACCOUNTS REFERED TO ROAD INCLUDING TOLL R OAD AND THE INCOME IS DERIVED FROM SALE OF PLOTS, BUILT OF PROPERTIES, LE ASE RENTALS ETC. THE ASSESSEES CLAIM WAS HELD TO BE NOT ALLOWABLE. IT IS FURTHER SEEN THAT THE RELIANCE PLACED ON THE PRECEDENT AVAILABLE IN THE FORM OF ASSESSMEN T ORDERS U/S 143(3) IN 2009-10 AY WAS DISMISSED BY THE AO IN THE FOLLOWING MANNER:- THE ASSESSEE HAS ALSO SUBMITTED THAT IN EARLIER YE ARS I.E. IN A.Y. 2009 - 2010 AND A.Y. 2010 -2011, UNDER MORE OR LESS , SIMILAR FACTS AND CIRCUMSTANCES, HE CLAIMED DEDUCTION U/S. 80 IA WHIC H WAS ALLOWED U/S. 143 (3). THE ASSESSEE HAS ALSO QUOTED THE DECI SION REPORTED AT 191 ITR 321 (SC) IN THE CASE OF RADHA SWAM1SATSANG VS. CIT FOR THE LEGAL PREPOSITION THAT THE PRINCIPLE OF CONSISTENCY SHOULD HAVE BEEN FOLLOWED, IN THIS REGARD, THERE IS NO DISPUTE THAT INITIALLY IN ASSTT.'S U/S. 343 (3) THE SAID DEDUCTION WAS ALLOWED TO THE ASSES SEE. HOWEVER, VIDE ORDER U/S. 263 DTD. 30.03.2014 PASSED BY COMMISSION ER OF INCOME TAX NOIDA HAS ALREADY CANCELLED THE SAID DED UCTION U/S. 80 IA IN A.Y. 2009 - 2010 AND THE SAID ISSUE SET-AS IDE TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION. HENCE, AS ON DATE THE SAID DEDUCTION DOES NOT SURVIVE SO FAR AS A.Y 2009 - 2010 IS CONCERNED. (EMPHASIS PROVIDED) 10.8. THUS WE FIND THAT THE AO IN THESE PECULIAR FACTS IN THE FACE OF THE ORDER U/S 263 OF CIT, NOIDA WAS UNABLE TO LOOK BEYOND THE SAID ORDER AND COULD NOT HAVE TAKEN GUIDANCE FROM THE VIEW TAKEN BY THE AO I N THE SCRUTINY ASSESSMENTS MADE U/S 143(3) BY THE ASSESSING OFFICE RS IN 2009-10 AND 2010- 11 AYS. THE IMPUGNED ORDER IT IS SEEN IS DATED 12.0 1.2015 AND THUS ADMITTEDLY I.T.A .NO.-414/DEL/2015 PAGE 65 OF 95 WAS PASSED BEFORE THE ORDER OF THE ITAT WHICH IS DA TED 13.04.2015. THUS THE BENEFIT OF THE SAID ORDER WAS NOT AVAILABLE TO THE LD.CIT(A) ALSO. WE NOTE THAT THOUGH THE LD.CIT DR IN HER PAPER BOOK OF 98 PAGES HAS FILED COPY OF ASSIGNMENT AGREEMENT DATED 19.10.2007 ENTERED INTO BETWEEN THE ASSESSEE; JAL AND TAJ EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHO RITY AT PAGES 12 TO 90 OF THE PAPER BOOK HOWEVER, NO ARGUMENT WAS ADVANCED ON BEHALF OF THE REVENUE REFERRING TO THE SAID AGREEMENT SO AS TO CANVASS TH AT THE FACTS AS APPRECIATED BY THE ITAT IN 2009-10 AY IN ITS ORDER DATED 13.04. 2015 ARE INCORRECT. INFACT THE SAID AGREEMENT WAS NOT REFERRED TO AT ALL IN TH E COURSE OF THE ARGUMENTS. REFERENCE TO THIS SPECIFIC FACT IS MADE SO AS TO AD DRESS THE FACTUAL POSITION THAT IT IS NOT THE CASE OF THE REVENUE THAT APPRECIATION OF FACTS IN THE ORDER BY THE CO-ORDINATE BENCH IS DISPUTED BY THE REVENUE AND IN FACT FACTS AS APPRECIATED BY THE ITAT ARE NOT DISPUTED BY THE REVENUE AT ALL. THE OBSERVATION IS SIGNIFICANT AS THE CLAIM OF THE ASSESSEE HAS BEEN T HAT THE AFORESAID ORDER OF THE ITAT IN THE INITIAL YEAR HAS CONSIDERED THE FACTS W HICH CONTINUE TO REMAIN IDENTICAL AND CONCLUDED THE ISSUE IN FAVOUR OF THE ASSESSEE THUS JUDICIAL PRECEDENT AVAILABLE DESERVES TO BE FOLLOWED. THUS I N THIS BACKGROUND, WE NOTE THAT NO CHANGE IN FACT OR CIRCUMSTANCES DESPITE FIL ING A COPY OF THE ASSIGNMENT AGREEMENT HAS BEEN PLEADED BY THE REVENUE. REVERTIN G TO THE FACTS AS CONSIDERED QUA GROUND NOS. 5, 7, 8 AND 9 RAISED BEF ORE IT WE NOTE THAT THE ISSUES ENQUIRED INTO BY THE CO-ORDINATE BENCH AS SE T OUT IN NOTICE ISSUED U/S 263 BY THE CIT, NOIDA ARE FOUND EXTRACTED BY THE CO -ORDINATE BENCH IN PARA 4. IT IS SEEN THAT THE CO-ORDINATE BENCH AFTER EXTRAC TING THE REPLY ON BEHALF OF THE I.T.A .NO.-414/DEL/2015 PAGE 66 OF 95 ASSESSEE BEFORE THE CIT, NOIDA PROCEEDED TO REPRODU CE THE WRITTEN SUBMISSIONS OF THE LD.AR ON BEHALF OF THE ASSESSEE. ON A PERUS AL OF THE SAME, WE HAVE NOTED THAT IDENTICAL ARGUMENTS HAVE BEEN RAISED BEF ORE THE CO-ORDINATE BENCH. THEREAFTER THE ARGUMENTS OF THE REVENUE HAVE BEEN E XTRACTED. A PERUSAL OF THE SAME AS WE HAVE ALREADY NOTED SHOWS THAT THEY ARE I DENTICALLY WORDED AS IN THE PRESENT PROCEEDINGS A FACT WHICH HAS BEEN NOTICED B Y US IN THE EARLIER PART OF THIS ORDER. THE CO-ORDINATE BENCH AFTER SETTING OUT THE FACTS; THE SPECIFIC PROVISION OF LAW; THE AGREEMENT DATED 07.02.2003 BE TWEEN THE TAJ EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHORITY (TEA) STATUTORY B ODY CONSTITUTED UNDER UP INDUSTRIAL DEVELOPMENT ACT 1976 RELEVANT PORTION OF IT ARE FOUND EXTRACTED IN PARA 20 AT PAGES 57 TO 64 BY THE CO-ORDINATE BENCH HAS PROCEEDED TO ANALYSE THESE IN PARA 21 TO HOLD AS UNDER:- 21. IN VIEW OF ABOVE AGREEMENT, THE ASSESSEE WAS UN DER OBLIGATION TO DO WORK AS MENTIONED IN PARA 2.1 OF CHAPTER II AN D IN TURN, CONCESSION WAS GRANTED BY THE TEA TO THE ASSESSEE AS MENTIONED IN CHAPTER III, THE LAND FOR CONSTRUCTION OF EXPRESSWAY AND LAND FOR DE VELOPMENT WAS PROVIDED TO THE ASSESSEE AND THE SAME WAS RELEASED BY THE TEA, AS PER TERMS OF 4.1 AND 4.2, RESPECTIVELY, OF CHAPTER IV O F THE AGREEMENT. AS PER ABOVE PROVISIONS AND TERMS OF THE AGREEMENT, TH E TEA HAS TO PROVIDE LAND FOR EXPRESSWAY AND LAND FOR DEVELOPMEN T TO THE ASSESSEE ON COST OF ACQUISITION PLUS A LEASE RENT OF RS.100/ - PER HECTARE PER YEAR. THE ASSESSEE WAS UNDER OBLIGATION TO CONSTRUCT EXPR ESSWAY BETWEEN AGRA AND NOIDA IN U.P. AND CONCESSION AS MENTIONED IN CHAPTER-III WAS GRANTED TO THE ASSESSEE. FROM VIGILANT PERUSAL OF THE CONCESSION AGREEMENT, WE NOTE THAT THE ASSESSEE, IN TURN, WAS GIVEN THE RIGHT TO COLLECT TOLL FEES FROM EXPRESSWAY USERS AN D ALSO GRANTED RIGHT TO DECIDE THE DISBURSEMENT AND PURPOSE OF LAN D GIVEN FOR DEVELOPMENT AND THE RIGHTS TO USE THE LAND AS ITS O WN OR TO SUB- LEASE THE SAME TO A THIRD PARTY IN ACCORDANCE WITH URBAN DEVELOPMENT POLICY AND APPLICABLE RULES OF THE GOVE RNMENT OF UP. (EMPHASIS PROVIDED) 10.9. THE CO-ORDINATE BENCH IT IS SEEN IN PARA 22 (ALSO RELIED UPON BY THE LD.CIT DR) TOOK COGNIZANCE OF THIS SPECIFIC ACT OF STATE WHICH WAS QUESTIONED I.T.A .NO.-414/DEL/2015 PAGE 67 OF 95 BY A LITIGANT BEFORE THE APEX COURT IN PIL IN CIVIL APPEAL NO.7468 OF 2010 IN THE CASE OF NANDKISHORE GUPTA VS STATE OF UP AND CONCLU DED THAT ON A READING OF PARAS 30 AND 34 OF THE SAID JUDGEMENT THE WORK OF D EVELOPMENT OF THE EXPRESSWAY AND DEVELOPMENT OF THE LAND ARE INTEGRAL AND INSEPARABLE PART OF THE PROJECT/SCHEME. THE AFORESAID PARAS EXTRACTED IN PARA 22 BY THE CO- ORDINATE BENCH FROM THE DECISION OF THE APEX COURT ARE EXTRACTED HEREUNDER FOR READY-REFERENCE:- 22. THE EXPRESSWAY IS A WORK OF IMMENSE PUBLIC IMPORTA NCE. THE STATE GAINS ADVANTAGES FROM THE CONSTRUCTION OF AN EXPRES SWAY AND SO DOES THE GENERAL PUBLIC. CREATION OF A CORRIDOR FOR FAST MOVING TRAFFIC RESULTING INTO CURTAILING THE TRAVELING TIME, AS AL SO THE TRANSPORT OF THE GOODS, WOULD BE SOME FACTORS WHICH SPEAK IN FAVOUR OF THE PROJECT BEING FOR THE PUBLIC PURPOSE . MUCH WAS STATED ABOUT THE 25 MILLION SQUARE METERS OF LAND BEING ACQUIRED FOR THE FIVE P ARCELS OF LAND. IN FACT, IN OUR OPINION, AS HAS RIGHTLY BEEN COMMEN TED UPON BY THE HIGH COURT, THE CREATION OF THE FIVE ZONES FOR INDUSTRY, RESIDE NCE, AMUSEMENT ETC., WOULD BE COMPLIMENTARY TO THE CREATION OF THE EXPRESSWAY. IT CANNOT BE FORGOTTEN THAT THE CREATIO N OF LAND PARCELS WOULD GIVE IMPETUS TO THE INDUSTRIAL DEVELO PMENT OF THE STATE CREATING MORE JOBS AND HELPING THE ECONOMY AN D THEREBY HELPING THE GENERAL PUBLIC. THERE CAN BE NO DOUBT T HAT THE IMPLEMENTATION OF THE PROJECT WOULD RESULT IN COMIN G INTO EXISTENCE OF FIVE DEVELOPED PARCELS/CENTERS IN THE STATE FOR THE USE OF THE CITIZENS. THERE SHALL, THUS, BE THE PLANNED DEVELOPMENT OF TH IS OTHERWISE INDUSTRIALLY BACKWARD AREA. THE CREATION OF THESE FIVE PARCELS WILL CERTAINLY HELP THE MAXIMUM UTILIZATION OF THE EXPRE SSWAY AND THE EXISTENCE 3 OF AN EXPRESSWAY FOR THE FAST MOVING TR AFFIC WOULD HELP THE INDUSTRIAL CULTURE CREATED IN THE FIVE PARCELS. THU S, BOTH WILL BE COMPLIMENTARY TO EACH OTHER AND CAN BE VIEWED AS PA RTS OF AN INTEGRAL SCHEME. THEREFORE, IT CANNOT BE SAID THAT IT IS NOT A PUBLIC PURPOSE. .................. (LAST PART OF PARA 30) WE HAVE ALREADY CONSIDERED THIS QUESTION THAT IN TH E PRESENT CASE, THERE IS NOTHING TO INDICATE THAT THE ACQUISITION IS FOR THE COMPANY I.E. FOR JAIPRAKASH INDUSTRIES LTD. IT IS ONLY, THEREFORE, T HAT WE ARE AT PAINS TO POINT OUT THAT THE GOVERNMENT WAS ONLY USING THE CO MPANY FOR IMPLEMENTING ITS POLICY. (LAST PART OF PARA 34) ( EMPHASIS PROVIDED) I.T.A .NO.-414/DEL/2015 PAGE 68 OF 95 10.10. CONSIDERING THE SAME, THE CO-ORDINATE BENCH CAME T O THE FOLLOWING CONCLUSION:- 23. HENCE, IN VIEW OF ABOVE OBSERVATIONS OF HONBL E APEX COURT IN PARA 30, WE MAY SAFELY INFER THAT THE LAND FOR DEVELOPMENT O F THE EXPRESSWAY AND DEVELOPMENT OF FIVE LAND PARCELS FOR INDUSTRIAL, COMMERCIAL, AMUSEMENT AND RESIDENTIAL PURPOSES WAS ALLOTTED TO THE ASSESSEE UNDER CONCESSION AGREEMENT. THE WORK O F THE DEVELOPMENT OF THE EXPRESSWAY AND DEVELOPMENT OF TH E LAND ARE INTEGRAL AND INSEPARABLE PART OF THE PROJECT/SCHEME . WE MAY ALSO POINT OUT THAT THE LAND FOR DEVELOPMENT WAS NOT ALL OTTED ONLY FOR RESIDENTIAL/HOUSING PURPOSE BUT ALSO FOR THE PURPOS E OF INDUSTRIAL, COMMERCIAL AND AMUSEMENT ETC., HENCE THE CONCESSION AGREEMENT WAS INTENDED TO USE THE ASSESSEE COMPANY FOR IMPLEMENT ATION OF THE DEVELOPMENT POLICY OF U.P. GOVERNMENT AS OBSERVED B Y HONBLE APEX COURT IN LAST OPERATIVE PART OF PARA 34 OF THE JUDG MENT IN THE CASE OF NAND KISHORE GUPTA (SUPRA). (EMPHASIS PROVIDED) 10.11. IT IS SEEN THAT THEREAFTER IN PARAS 28 ONWARDS CON SIDERING THE ARGUMENTS OF THE PARTIES BEFORE THE BENCH ON THE PR INCIPLES APPLICABLE FOR INTERPRETATION OF THE SPECIFIC PROVISIONS VIS--VIS THE FACTS OF THE CASE THE CO- ORDINATE BENCH FINALLY CONCLUDED IN PARA 34 THAT TH E INCENTIVE PROVISIONS IN A TAXING STATUTE HAVE TO BE INTERPRETED LIBERALLY. F OR READY-REFERENCE, THE RELEVANT EXTRACTS ADDRESSING THE REASONING FOR THE AFORESAID CONCLUSION IS REPRODUCED HEREUNDER:- 28. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSION S OF BOTH THE SIDES, FIRSTLY WE ARE IN AGREEMENT WITH THE CON TENTIONS OF THE LD. AR THAT THE ALLEGATION OF NON-COMPLIANCE OF THE CBDT C IRCULAR NO. 1/2006 (SUPRA) HAS NOT BEEN MENTIONED BY THE LD. CI T NOIDA IN THE NOTICE ISSUED TO THE ASSESSEE U/S 263 OF THE ACT (S UPRA). SECONDLY, THE CONSTRUCTION OF LANGUAGE AND WORDS USED BY THE LEGISLATURE IN SUB- SECTION (2) OF SECTION 80IA OF THE ACT AND USED BY THE CBDT IN CIRCULAR NO. 1/2006 (SUPRA) ARE SIMILAR VIZ. DEVELOPS AND B EGINS TO OPERATE. THE HEADING GIVEN BY THE LEGISLATION TO SECTION 80I A OF THE ACT READS AS DEDUCTIONS IN RESPECT OF PROFITS AND GAINS FROM IN DUSTRIAL UNDERTAKING OR ENTERPRISE ENGAGED IN INFRASTRUCTURE DEVELOPMENT ETC. WHICH, TO OUR HUMBLE UNDERSTANDING, EXPRESS THE INTENTION OF THE LEGISLATURE THAT THE EXEMPTION THEREIN SECTION 80IA OF THE ACT IS AVAILABLE FOR THE UNDERTAKINGS OR ENTERPRISE WHICH ARE ENGAGE D IN THE I.T.A .NO.-414/DEL/2015 PAGE 69 OF 95 BUSINESS OF INFRASTRUCTURE DEVELOPMENT ETC. MEANING THEREBY INFRASTRUCTURE DEVELOPMENT IS PARAMOUNT CONSIDERATI ON FOR GRANT OF EXEMPTION U/S 80IA OF THE ACT. IF THE LITERAL MEANI NG IS GIVEN TO THE CONJUNCTIVE WORD AND BETWEEN DEVELOPS AND BEGI NS TO OPERATE THEN THE ENTERPRISE WOULD BE ENTITLED TO EXEMPTION ONLY WHEN THE ENTERPRISE DEVELOPS AND BEGINS TO OPERATE INFRASTRU CTURE FACILITY ON OR AFTER 1.4.1995, AS REQUIRED BY CONDITION (C) OF SEC TION 80IA(4)(I) OF THE ACT. 29. UNDER SAID INTERPRETATION AS GIVEN BY THE REVENUE AUTHORITIES, THE ENTERPRISE WOULD BE ENTITLED FOR E XEMPTION U/S 80IA(4) OF THE ACT ONLY AFTER COMPLETION OF THE PRO JECT EVEN IF DEVELOPMENT TAKES MORE THAN ONE YEAR TO START OPERA TIONS AND THEN ONLY THE INCOME DERIVED FROM OPERATING AND MAINTAINING OF INFRASTRUCTURE FACILITY WOULD BE ELIGIBLE FOR EXEMP TION AND ENTERPRISES ENGAGED IN DEVELOPMENT ACTIVITIES WOULD NEVER BE EN TITLED FOR EXEMPTION. OBVIOUSLY, THIS CANNOT BE AN INTENTION OF LEGISLATU RE AND CBDT CIRCULAR (SUPRA) WHILE FRAMING THE PROVISION OF SEC TION 80IA OF THE ACT AND ISSUING CIRCULAR NO.1/2006 (SUPRA) RESP ECTIVELY. 30. AT THIS JUNCTURE, WE RESPECTFULLY TAKE COGNIZAN CE OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF K.P. VERGHESE (SUPRA) AND DECISION OF FULL BENCH OF HONBLE ORISSA HIGH COURT IN THE C ASE OF GANGARAM CHOPALIA (SUPRA) AND DECISION OF HONBLE JAMMU & KASHMIR HI GH COURT IN THE CASE OF CIT VS J&KTDC (2001) 248 ITR 94 (J&K), AS RELIED BY THE LD. AR. IN THE CASE OF K.P. VARGHESE V ITO (SUPRA), THE APEX COURT HELD THAT THE INTERPRETATION OF A STATUTE BEING AN EXERCISE I N THE ASCERTAINMENT OF MEANING, EVERYTHING WHICH IS L OGICALLY RELEVANT SHOULD BE ADMISSIBLE. THE RELEVANT PART OF THE DECISION READS AS UNDER:- A STATUTORY PROVISION MUST BE SO CONSTRUED, IF POS SIBLE, THAT ABSURDITY AND MISCHIEF MAY BE AVOIDED. WHERE THE PLAIN LITERAL INTERPRETATION OF A STATUTORY PROVISION PRO DUCES A MANIFESTLY ABSURD AND UNJUST RESULT WHICH COULD NEV ER HAVE BEEN INTENDED BY THE LEGISLATURE, THE COURT MA Y MODIFY THE LANGUAGE USED BY THE LEGISLATURE OR EVEN DO SOME VIOLENCE TO IT, SO AS TO ACHIEVE THE OBVIOUS I NTENTION OF THE LEGISLATURE AND PRODUCE A RATIONAL CONSTRUCT ION. SPEECHES MADE BY THE MEMBERS OF THE LEGISLATURE ON THE FLOOR OF THE HOUSE WHEN THE BILL IS BEING DEBATED ARE INADMI SSIBLE FOR THE PURPOSE OF INTERPRETING THE STATUTORY PROVISION BUT THE SPEECH MADE BY THE MOVER OF THE BILL EXPLAINING THE REASON FOR ITS INTRODUCTION CAN CERTAINLY BE REFERRED TO FOR THE P URPOSE OF ASCERTAINING THE MISCHIEF SOUGHT TO BE REMEDIED BY THE LEGISLATION AND THE OBJECT AND PURPOSE FOR WHICH THE LEGISLATIO N IS ENACTED. THIS IS IN ACCORD WITH THE RECENT TREND IN JURISTIC THOUGHT NOT ONLY IN WESTERN COUNTRIES BUT ALSO IN INDIA, THAT THE IN TERPRETATION OF A STATUTE BEING AN EXERCISE IN THE ASCERTAINMENT OF M EANING, EVERYTHING WHICH IS LOGICALLY RELEVANT SHOULD BE AD MISSIBLE. I.T.A .NO.-414/DEL/2015 PAGE 70 OF 95 31. LD. AR PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF BAJAJ TEMPO LTD. VS CIT (1992) 196 I TR 188 (SC), THE LD. AR SUBMITTED THAT IF PROVISION FOR CHECKING ABUSE IS FOUND TO HAVE RESULTED INTO NULLIFYING THE VERY PURPOSE OF I TS ENACTMENT THEN THE PROVISIONS OF TAXING STATUTES SHOULD BE INTERPRETED LIBERALLY SO AS TO ADVANCE THE OBJECTIVE OF THE PROVISIONS AND NOT FRU STRATE IT. LD. AR HAS FURTHER DRAWN OUR ATTENTION TOWARDS DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS ABG HEAVY INDUSTRIES LT D. (2010) 322 ITR 323 (BOMBAY) AND SUBMITTED THAT AFTER CONSIDERING THE RATIO OF THE DECISION OF HONBLE APEX COURT IN THE CASE OF BAJAJ TEMPO LTD. (SUPRA) IT WAS ALSO HELD THAT AN ASSESSEE DID NOT HAVE TO DEVE LOP THE ENTIRE PART OF ELIGIBLE BUSINESS OR ACTIVITY IN ORDER TO QUALIF Y FOR A DEDUCTION U/S 80IA OF THE ACT. 32. LD. DR CONTENDED THAT THE TOLL WAS INAUGURATED ON 9 .8.2012 (RELEVANT TO AY 2013-14). HENCE, LITERAL MEANING DO ES NOT ALLOW TO GRANT EXEMPTION U/S 80IA OF THE ACT FROM AY 2009 -10. LD. AR PLACING REJOINDER SUBMITTED THAT THE ASSESSEE START ED ITS OPERATION FROM 5.4.2007. HENCE INCOME EARNED FROM THE ACTIVITIES WHICH ARE INEXTRICABLY LINKED WITH THE MAIN OBJECT AND SCOPE OF WORK, COMMENCEMENT OF BUSINESS OPERATION ARE ELIGIBLE FOR EXEMPTION U/S 80IA OF THE ACT. FIRSTLY, WE NOTE THAT HONBLE APEX COURT LAID A BASIC PRINCIPLE FOR INTERPRETATION OF BENEFICIAL TAXATION STATUTES IN THE CASE OF BAJAJ TEMPO LTD. (SUPRA) WHICH READS AS FOLLOWS:- A PROVISION IN A TAXING STATUTE GRANTING INCENTIVE S FOR PROMOTING GROWTH AND DEVELOPMENT SHOULD BE CONSTRUED LIBERALL Y; AND SINCE A PROVISION FOR PROMOTING ECONOMIC GROWTH HAS TO BE INTERPRETED LIBERALLY, THE RESTRICTION ON IT TOO HAS TO BE CONS TRUED SO AS TO ADVANCE THE OBJECTIVE OF THE PROVISION AND NOT TO F RUSTRATE IT. BY THE COURT: IF A PROVISION FOR CHECKING ABUSE IS FOUND TO HAVE RESULTED IN NULLIFYING THE VERY PURPOSE OF I TS ENACTMENT AND THE LEGISLATURE INTERVENES, THEN IT CAN BE ASSU MED THAT THE LEGISLATURE, HAVING BEEN SATISFIED OF THE FAILURE O F THE PURPOSE FOR WHICH THE PROVISION WAS INSERTED, PROCEEDED TO CURE THE DEFECT BY SUITABLY AMENDING THE PROVISION OR REMOVING IT. 33. IN THE DECISION OF ABG HEAVY INDUSTRIES (SUPRA) THE HONBLE BOMBAY HIGH COURT REFERRING TO THE RATIO OF THE DECISION O F HONBLE APEX COURT IN THE CASE OF BAJAJ TEMPO (SUPRA) HELD THE ASSESSEE D ID NOT HAVE TO DEVELOP THE ENTIRE PORT/PROJECT INTO TO QUALIFY FOR A DEDUCTION U/S 80IA OF THE ACT. THEIR LORDSHIPS FURTHER HELD THAT THE PARL IAMENT DID NOT LEGISLATE A CONDITION IMPOSSIBLE OF COMPLIANCE. THE RELEVANT OPERATIVE PART OF THIS ORDER READS AS FOLLOWS:- 19 . THE OBLIGATIONS WHICH HAVE BEEN ASSUMED BY TH E ASSESSEE UNDER THE TERMS OF THE CONTRACT ARE OBLIGATIONS INV OLVING THE DEVELOPMENT OF AN INFRASTRUCTURE FACILITY. SECTION 80-IA OF THE ACT ESSENTIALLY CONTEMPLATED DEDUCTION IN A SITUATION W HERE AN ENTERPRISE CARRIED ON THE BUSINESS DEVELOPING, MAIN TAINING AND OPERATING AN INFRASTRUCTURE FACILITY. A PORT WAS DE FINED TO BE INCLUDED WITHIN THE PURVIEW OF THE EXPRESSION 'INFR ASTRUCTURE I.T.A .NO.-414/DEL/2015 PAGE 71 OF 95 FACILITY'. THE OBLIGATIONS WHICH THE ASSESSEE ASSUM ED UNDER THE TERMS OF THE CONTRACT WERE NOT MERELY FOR SUPPLY AN D INSTALLATION OF THE CRANES, BUT INVOLVED A CONTINUOUS OBLIGATION RIGHT FROM THE SUPPLY OF THE CRANES TO THE INSTALLATION, TESTING, COMMISSIONING, OPERATION AND MAINTENANCE OF THE CRANES FOR A TERM OF TEN YEARS AFTER WHICH THE CRANES WERE TO VEST IN JNPT FREE OF COST. AN ASSESSEE DID NOT HAVE TO DEVELOP THE ENTIRE PORT IN ORDER TO QUALIFY FOR A DEDUCTION UNDER SECTION 80-IA. PARLIA MENT DID NOT LEGISLATE A CONDITION IMPOSSIBLE OF COMPLIA NCE. A PORT IS DEFINED TO BE AN INFRASTRUCTURE FACILITY AN D THE CIRCULAR OF THE BOARD CLARIFIED THAT A STRUCTURE FOR LOADING, U NLOADING, STORAGE, ETC., AT A PORT WOULD QUALIFY FOR DEDUCTIO N UNDER SECTION 80-IA. THE CONDITION OF A CERTIFICATE FROM THE PORT AUTHORITY WAS FULFILLED AND JNPT CERTIFIED THAT THE FACILITY PROV IDED BY THE ASSESSEE WAS AN INTEGRAL PART OF THE PORT. THE ASSE SSEE DEVELOPED THE FACILITY ON A BOLT BASIS UNDER THE CO NTRACT WITH JNPT. ON THE FULFILLMENT OF THE LEASE OF TEN YEARS, THERE WAS A VESTING IN THE JNPT FREE OF COST. 34. THEREFORE, IN VIEW OF RATIO LAID DOWN BY HONBL E APEX COURT IN THE CASE OF BAJAJ TEMPO (SUPRA) AND BY HONBLE BOMBAY H IGH COURT IN THE CASE OF ABG HEAVY INDUSTRIES (SUPRA), WE RESPECTFUL LY NOTE THAT A PROVISION IN TAXING STATUTE GRANTING INCENTIVES FOR PROMOTING GROWTH AND DEVELOPMENT SHOULD BE CONSTRUED LIBERALL Y AND SINCE A PROVISION FOR PROMOTING ECONOMIC GROWTH HAS TO BE INTERPRETED LIBERALLY, THE RESTRICTION ON IT ALSO HAS TO BE CON STRUED SO AS TO ADVANCE THE OBJECTIVE OF THE PROVISION AND NOT TO FRUSTRATE IT OR TO DEFEAT ITS PURPOSE. WE FURTHER RESPECTFULLY NOTE THE RATIO OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF ABG HEAVY INDUSTRI ES (SUPRA) WHEREIN IT WAS CATEGORICALLY HELD THAT THE ASSESSEE DID NOT HAVE TO DEVELOP THE ENTIRE PORT OR PROJECT IN ORDER TO QUAL IFY FOR EXEMPTION U/S 80IA OF THE ACT AND THAT SHOULD NOT BE AN INTENTION AND EXPECTATION OF LEGISLATURE TO LEGISLATE A CONDITION IMPOSSIBLE OF COMPLIANCE. 10.12. THE CO-ORDINATE BENCH AGAIN IN PARA 38 SUMMED UP T HE CONTROVERSY IN THE FOLLOWING MANNER:- 38. HAVING HEARD ARGUMENTS OF BOTH THE SIDES AND A FTER HAVING GONE THROUGH RELEVANT MATERIAL PLACED ON RECORD, WRITTEN SUBMISSIONS, GIST OF CASE LAWS RELIED BY BOTH THE PARTIES, WE NOTE THAT THE MAIN CONTROVERSY IN THIS CASE IS MAINLY THAT THE ASSESSE E IS CLAIMING THAT AS PER OBJECTS OF THE COMPANY, CONCESSION AGREEMENT AND MAIN ACTIVITIES OF THE COMPANY, THE COMPANY DEVELOPED A TOLL ROAD BETWEEN NOIDA AND AGRA AND HIS CLAIM FOR DEDUCTION FALLS ON FOUR CORNERS WITHIN THE AMBIT OF CLAUSE (A) OF EXPLANATION TO SECTION 8 0IA(4)(I) OF THE ACT. PER CONTRA, THE MAIN CONTENTION OF THE LD. CIT, NOIDA I S THAT THE ASSESSEE DEVELOPED A HIGHWAY PROJECT WHICH WAS INAUGURATED ON I.T.A .NO.-414/DEL/2015 PAGE 72 OF 95 9.8.2012 BY HONBLE CHIEF MINISTER, GOVERNMENT OF U P WHICH FALLS UNDER CLAUSE (B) OF EXPLANATION TO SECTION 80IA(4)(I) OF THE ACT AND SAID PERIOD IS RELATED TO FINANCIAL YEAR 2012- 13 PERTAINED TO AY 2013-14 AND SINCE THE PROJECT OF THE ASSESSEE HAD NOT STARTED ITS OPE RATION IN THE PERIOD RELATED TO AY 2009-10, THEREFORE, THE AO WRONGLY AL LOWED THE CLAIM OF THE ASSESSEE. (EMPHASIS PROVIDED) 10.13. ON A READING OF PARA 50 OF THE SAID DECISION, IT I S SEEN THAT THE ARGUMENTS AS ADVANCED BEFORE THE CO-ORDINATE BENCH HAVE BEEN RE-ITERATED IN THE PRESENT PROCEEDINGS ALSO AS THESE FORM THE BASI S OF THE DENIAL OF ASSESSEES CLAIM BEFORE THE AO:- 50. THE LD. CIT DR FURTHER CONTENDED THAT SIN CE THE ASSESSEE COMPANY HAS NOT COMMENCED BUSINESS OPERATI ONS DURING THE YEAR UNDER CONSIDERATION AND THE ASSESSEE HAS BEGUN TO OPERATE INFRASTRUCTURE FACILITY W.E.F. 9.8.2012, WHEN THE E XPRESSWAY WAS INAUGURATED, HENCE, PRIOR TO THIS DATE, THE ASSESSEE HAD EARNED ONLY PROFITS WHICH ARE ATTRIBUTABLE TO SALE OF LAND WHICH WAS TRANSFERRED TO IT IN THE TERMS OF CONCESSION AGREEM ENT, THEREFORE, THE ASSESSEE WOULD BE ELIGIBLE FOR DEDUCTION U/S 80IA O NLY W.E.F. AY 2013- 14. .THE FOLLOWING REPLY OF THE ASSESSEE AS EX TRACTED IN PARA 51 HAS BEEN CONSIDERED. 51. LD. AR ALSO PLACED A REJOINDER TO THE ABOVE SUB MISSIONS OF THE LD. CIT DR THAT THE CONCESSION AGREEMENT WAS EXECUTED F OR DEVELOPMENT OF EXPRESSWAY AND DEVELOPMENT OF ROAD. LD. AR HAS FURT HER DRAWN OUR ATTENTION TOWARDS ASSESSEES PAPER BOOK PAGE 180 TO 184 AND SUBMITTED THAT IT WAS CLARIFIED BEFORE THE AO THAT IN CONSIDERATION OF THE ASSESSEE, IN AGREEING TO DEVELOP, DESIGN, ENGIN EER, FINANCE, PROCURE AND CONSTRUCT TOLL ROAD, THE ASSESSEE HAS B EEN GRANTED RIGHT FOR LAND DEVELOPMENT OF 25 MILLION SQ MTR OF LAND IN ADDITION TO THE RIGHT TO COLLECT TOLL FEE AND THE REVENUE/PROFITS GENERATED FROM SUB-LEASING OF THE PLOTS/LAND EARNED BY THE ASSESSEE COMPANY OR THE INCOME DERIVED FROM THE BU SINESS OF DEVELOPMENT OF ROAD ALSO COVERS WITHIN ITS SCOPE TH E PROFITS FROM ALL ACTIVITIES THAT ARE INTEGRAL PART OF THE BUSINE SS OF THE ROAD DEVELOPMENT. LD. AR ALSO INVITED OUR ATTENTION TOWARDS FORM NO. 10CCB R/W AUDITORS CERTIFICATE UNDER RULE 18BBB TH AT THE ASSESSEE IS CERTIFIED TO BE ENGAGED IN DEVELOPING, OPERATING AN D MAINTAINING THE INFRASTRUCTURE FACILITY WHICH IS CERTIFIED TO BE R OAD INCLUDING TOLL ROAD. 10.14. AS NOTED EARLIER IN ORDER TO ADJUDICATE UPON THE C LAIMS AND COUNTER- CLAIMS, THE CO-ORDINATE BENCH UNDERTOOK TO CONSIDER THE MEANING OF I.T.A .NO.-414/DEL/2015 PAGE 73 OF 95 HIGHWAY, EXPRESSWAY, TOLL, TOLL GATE SO AS TO ADDRESS THE TERMS AS USED IN THE CONCESSIONAIRE AGREEMENT. AFTER CONSIDERING TH ESE, IT WAS CONCLUDED IN PARA 54 THAT THE USE OF EXPRESSWAY, THE TOLL FEES A ND THE CUMULATIVE STIPULATION THAT THE ASSESSEE WAS TASKED TO DEVELOPING, OPERATI NG AND MAINTAINING A SIX LANED CONTROLLED ACCESS EXPRESSWAY WITH LIMITED ACC ESS AND EXIT POINTS BETWEEN NOIDA AND AGRA WHERE FEE WAS PAYABLE TO THE ASSESSE E FOR VEHICLES USING THE EXPRESSWAY AT TOLL-PLAZAS ON THE TOLL-ROAD, LEADING THE CO-ORDINATE BENCH TO FINALLY CONCLUDE IN PARA 57 THAT THE BUSINESS ACTIV ITIES OF THE ASSESSEE COMPANY FALL WITHIN THE AMBIT OF CLAUSE (1) OF EXPLANATION 80IA(4) OF THE ACT. THE REASONING AND CONCLUSION IS EXTRACTED HEREUNDER:- 52. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMIS SIONS, WE NOTE THAT FIRSTLY IT WOULD BE JUST AND PROPER TO CONSIDER THE MEANING OF THE HIGHWAY, EXPRESSWAY, TOLL, TOLL GATE, TOLL PLAZA AND ROAD INCLUDING TOLL ROAD WHICH ARE BEING REPEATEDLY USE D BY BOTH THE SIDES DURING ARGUMENTS. WE MAY POINT OUT THAT THESE WORDS HAVE NOT BEEN DEFINED IN INCOME TAX ACT AND NEITHER THE LD. AR NO R LD. CIT-DR HAS PLACED ANY REFERENCE OF MEANING TO THE ABOVE STATED TERMS. THEREFORE, WE ARE COMPELLED TO REFER AVAILABLE DICTIONARIES TO PROPERLY UNDERSTAND THE APPROPRIATE MEANING OF THESE TERMS/WORDS FOR PR OPER ADJUDICATION OF ACTUAL ASPECTS OF THIS CASE, WHICH READ AS UNDER :- (A) HIGHWAY - A PUBLIC ROAD THAT EVERYONE HAS RIGHT TO USE (REF. CHAMBERLAIN DICTIONARY, FIRST INDIAN EDITION 2001 A T PAGE 635) - A PUBLIC ROAD ESPECIALLY AN IMPORTANT ROAD THAT J OINS CITIES OR TOWNS TOGETHER (REF. CAMBRIDGE DICTIONARY, LOW PRIC E EDITION 1996 AT PAGE 669) (B) EXPRESSWAY - A MAJOR ROAD FOR FAST MOVING TRAFF IC, ESPECIALLY WITH THREE LANE PER CARRIAGEWAY AND LIMITED ACCESS AND EXIT POINTS (REF. CHAMBERLAIN DICTIONARY, FIRST INDIAN E DITION 2001 AT PAGE 462 & 892.) - A WIDE ROAD BUILT FOR FAST MOVING TRAFFIC TRAVELL ING LONG DISTANCES WITH A LIMITED NUMBER OF POINTS AT WHICH DRIVERS CA N ENTER AND LEAVE IT. (REF. CAMBRIDGE DICTIONARY, LOW PRICE EDI TION 1996 AT PAGE 485) (C) TOLL - A CHARGE PAYABLE TO USE OF A BRIDGE OR R OAD (REF. CONCISE OXFORD DICTIONARY, AT PAGE 1507) (D) TOLL GATE - A BARRIER ACROSS A ROAD WHERE A CHA RGE MUST BE PAID TO PROCEED FURTHER (REF. CONCISE OXFORD DICTIO NARY, EDITION AT PAGE I.T.A .NO.-414/DEL/2015 PAGE 74 OF 95 1507). - A GATE AT THE START OF A ROAD OR A BRIDGE AT WHIC H YOU PAY ANAMOUNT OF MONEY IN ORDER TO USE THE ROAD OR BRIDG E. (CAMBRIDGE DICTIONARY, LOW PRICE EDITION 1996 AT PA GE 1533) (E) TOLL PLAZA - A ROW OF TOLL BOOTHS ON A TOLL ROA D (REF. CONCISE OXFORD DICTIONARY EDITION AT PAGE 1507) (F) IT IS PERTINENT TO NOTE THAT TOLL PLAZA HAS A LSO BEEN DEFINED AT PAGE 9 OF THE CONCESSION AGREEMENT AS STRUCTURES AND BARRIERS ERECTED ON THE EXPRESSWAY. FOR THE PURPOSE OF REGUL ATING THE ENTRY/EXIT OF VEHICLES IN ACCORDANCE WITH THE PROVI SIONS OF THIS AGREEMENT. THE WORD TOLLING CONTRACT HAS BEEN AL SO DEFINED AT PAGE 9 OF THE AGREEMENT AS THE CONTRACT, IF ANY, EN TERED INTO BY THE CONCESSIONAIRE I.E. ASSESSEE WITH TOLLING CONTR ACTOR FOR OPERATION OF TOLL PLAZAS, INCLUDING COLLECTION OF FEES FOR AND ON HALF OF THE CONCESSIONAIRE. 53. IN VIEW OF ABOVE REFERRED DEFINITIONS, IN OUR H UMBLE UNDERSTANDING, A HIGHWAY IS A PUBLIC ROAD THAT EVERYONE HAS RIGH T TO USE; AN EXPRESSWAY IS MAJOR ROAD FOR FAST MOVING TRAFFIC WITH THREE LANE PER CARRIAGE WAY, MEANING THEREBY BOTH WAY SIX LANE, WI TH CONTROLLED LIMITED ACCESS AND EXIT POINTS; WHEREAS A TOLL IS A FEE OR CHARGE PAYABLE TO USE OF A ROAD OR BRIDGE; TOLLGATE IS A GATE AT THE START OF A ROAD OR BRIDGE AT WHICH USER PAYS AN AMOUNT OF MONE Y (TOLL). FOR THE USE OF ROAD OR BRIDGE; AND TOLL PLAZA IS A ROW OF TOL L BOOTHS ON A TOLL ROAD. 54. TURNING TO THE FACTS OF THE PRESENT CASE, WE MA Y NOTE THAT IN THE CONCESSIONAIRE AGREEMENT THE WORDS, HIGHWAY AND TOLL ROAD HAVE NOT BEEN USED AND THE WORD EXPRESSWAY HAS BEEN US ED SEVERAL TIMES WHICH HAS BEEN DEFINED AT PAGE 6 OF THE AGREEMENT A S THE ACCESS CONTROLLED 6-LANE EXPRESSWAY BETWEEN NOIDA AND AGRA WITH SERVICE ROADS AND ASSOCIATED FACILITIES AND ON THE SAME PAG E 6 OF THE AGREEMENT THE WORD FEES HAS ALSO BEEN DEFINED AS FEES MEANS THE CHARGES LEVIED ON AND PAYABLE FOR VEHICLES USING TH E EXPRESSWAY IN ACCORDANCE WITH THE FEES AS MAY BE SETTLED UNDER TH IS AGREEMENT. THE CUMULATIVE MEANING OF THESE WORDS USED IN DEFINITIO NS AND OTHER STIPULATIONS OF THE AGREEMENT MAKE IT VIVID THAT TH ERE WAS A CONTRACT BETWEEN ASSESSEE COMPANY AND THE TEA FOR D EVELOPING, OPERATING AND MAINTAINING A SIX LANE CONTROLLED ACC ESS EXPRESSWAY WITH LIMITED ACCESS AND EXIT POINTS BETW EEN NOIDA AND AGRA AND A FEES/TOLL WAS PAYABLE TO ASSESSEE CO MPANY FOR VEHICLES USING THE EXPRESSWAY AT TOLL PLAZAS I.E. A T ROW OF TOLL BOOTHS ON TOLL ROAD. 55. LD. DR PLACING RELIANCE ON THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF ISHIKAWAIJIMA HARIMA HEAVY INDUSTRIES LTD. VS DIT, MUMBAI (2007) 288 ITR 408 (SC) SUBMITTED THAT THE OBJECT OF THE CONTRACT IN QUESTION MAY BE INFERRED FROM THE STIPU LATION AND TERMS AND CONDITIONS OF THE CONTRACT AND AS PER INTENTION OF THE PARTIES TO THE CONTRACT, ANY OTHER MEANING OR INTENTION CAN NOT BE GIVEN TO THE CONTRACT I.T.A .NO.-414/DEL/2015 PAGE 75 OF 95 AND THE AGREEMENT (SUPRA) BETWEEN THE ASSESSEE COMP ANY AND TEA IS INTENDED TO DEVELOP, OPERATE AND MAINTAIN A TOLL R OAD, THEREFORE, THE AO TOOK A REASONABLE AND PLAUSIBLE VIEW IN ALLOWING EXEMPTION U/S 80IA(4) OF THE ACT. 56. THE RELEVANT OPERATIVE PART OF DECISION OF HON BLE SUPREME COURT IN THE CASE OF ISHIKAWAIJIMA HARIMA HEAVY INDUSTRIES L TD. (SUPRA) READS THUS:- IN CONSTRUCTING A CONTRACT, THE TERMS AND CONDITIO NS THEREOF ARE TO BE READ AS A WHOLE. A CONTRACT MUST BE CONSTRUED KEEPING IN VIEW THE INTENTION OF THE PARTIES. NO DOUBT, THE AP PLICABILITY OF THE TAX LAWS WOULD DEPEND UPON THE NATURE OF THE CONTRA CT, BUT THE SAME SHOULD NOT BE CONSTRUED KEEPING IN VIEW THE TA XING PROVISIONS. 57. ON THE BASIS OF FOREGOING DISCUSSION, WE ARE OF TH E CONSIDERED OPINION THAT THE BUSINESS ACTIVITIES OF THE ASSESSEE COMPANY FALL WITHIN THE AMBIT OF CLAUSE (A) OF EXPL ANATION TO SECTION 80IA(4)(I) OF THE ACT. WE DECLINE TO AGREE WITH THE LD. CIT-DR THAT THE ASSESSEE IS ENGAGED IN THE DEVELOPMENT OF INFRASTRUCTURE FACILITY OF A HIGHWAY INCLUDING HOUSING OR OTHER A CTIVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT. 58. ALTHOUGH THE LD. AR HAS ALSO PLACED AN ALTERNAT IVE CLAIM U/S 80IA(6) BUT IN VIEW OF OUR OBSERVATIONS AND FINDINGS, AS SE T OUT ABOVE, THE ALTERNATIVE SAID CLAIM OF THE ASSESSEE AND OBJECTIO NS OF LD. CIT DR ABOUT NON-COMPLIANCE OF REQUIREMENT OF SUB-SECTION (6) OF SECTION 80IA OF THE ACT BECOMES ACADEMIC AND INFRUCTUOUS AND WE REFRAIN OURSELVES TO DELIBERATE FURTHER ON THE ALTERNATE CLAIM OF THE AS SESSEE AS WELL AS LEGAL OBJECTIONS OF LD. CIT DR. (EMPHASIS PROVIDED) 10.15. A CAREFUL READING OF THE ORDER OF THE CO-ORDINATE BENCH BRINGS OUT THAT CONSIDERING THE ABOVE REASONING WHICH HAPPENS TO BE THE MAIN PLEA IN THE PRESENT PROCEEDINGS THE CO-ORDINATE BENCH ALSO WAS REQUIRED TO ADDRESS THE ISSUE SPECIFICALLY CONSIDERING THE FACTS THAT SINCE THE INCOME AVAILABLE THEN WAS ONLY FROM SALE/SUB-LEASE OF LAND FOR 2009-10 AY. T HUS, THE ISSUE WHETHER THE ASSESSEE COMPANY IS ELIGIBLE FOR EXEMPTION U/S 80IA (4)(I) OF THE ACT, WE FIND HAS ALREADY BEEN CONSIDERED BY THE CO-ORDINATE BENCH ON SIMILAR FACTS. A FURTHER READING OF PARAS 59 ONWARDS AND FACTS AS SET OUT IN PARAS 60 TO 61 WHICH INFACT I.T.A .NO.-414/DEL/2015 PAGE 76 OF 95 IS BASED ON THE TERMS OF THE AGREEMENT REPRODUCED I N PARA 20 BY THE CO- ORDINATE BENCH AND ANALYZED IN PARA 21 WOULD SHOW ON CONSIDERING THE VERY SAME FACTS; THE ARGUMENTS OF THE PARTIES AND DISCUS SION IN PARA 35 TO 50 IT CAN BE SEEN THAT IT IS IDENTICAL TO WHAT HAS BEEN CONSI DERED BY THE AO IN THE PRESENT PROCEEDINGS AND ARGUED BY THE LD.CIT DR BEF ORE US. THESE FACTS AND DISCUSSIONS ARE EVEN RELEVANT FOR CONSIDERING THE D EPARTMENTAL STAND IN RESPECT OF THE ARGUMENTS IN SUPPORT OF OTHER INCOME AS N OT BEING DERIVED FROM ELIGIBLE BUSINESS DIRECTLY. THESE ARGUMENTS ALSO A DDRESS THE FACTS RELATABLE TO THE DISALLOWANCE MADE BY THE AO U/S 40(A)(IA) IN TH E PRESENT PROCEEDINGS WHICH ISSUES WE SHALL COME TO SUBSEQUENTLY. FOR TH E MOMENT WE NOTE THAT A PERUSAL OF THE PARAS 60 TO 63 OF THE ORDER PASSED B Y THE CO-ORDINATE BENCH WOULD SHOW THAT FACTS RECOGNIZING THAT IN ADDITION TO THE COLLECTION OF TOLL FEE THE GRANT OF LAND WAS MADE TO THE ASSESSEE FOR DEVE LOPMENT ON COST OF ACQUISITION PLUS LEASE PREMIUM OF RS.100/- PER HECT ARE PER ANNUM (FACTS RELATABLE IN PART TO 40(A)(IA) CLAIM) FOR WHICH THE ASSESSEE IN TURN WAS UNDER OBLIGATION TO DEVELOP, DESIGN, ENGINEER, FRAME, PRO CURE AND CONSTRUCT TOLL ROAD AS RESULT OF WHICH IT WAS CANVASSED THAT THE INCOME FROM SALE/DEVELOPMENT OF LAND WAS INDEED INCOME DERIVED FROM BUSINESS OF D EVELOPMENT OF TOLL ROAD AND WOULD BE ELIGIBLE FOR DEDUCTION. WE FIND THAT SIMILAR ARGUMENTS HAVE BEEN ADVANCED BEFORE US ALSO. CONSIDERING THE ARGUMENTS ADVANCED ON BEHALF OF THE REVENUE IN PARAS 64 TO 69 IT IS NOTED THE CO-ORDINA TE BENCH FINALLY IN PARAS 71 TO 81 CAME TO THE CONCLUSION THAT DEVELOPMENT IS A CONTIN UOUS PROCESS WHICH STARTS FROM THE DATE OF COMMENCEMENT OF BUSIN ESS AND BEGINNING I.T.A .NO.-414/DEL/2015 PAGE 77 OF 95 OF THE DEVELOPMENTAL ACTIVITIES AND ENDS ONLY WHEN DEVELOPMENT WORK CONCLUDES. THEREAFTER OPERATION AND MAINTENANCE ST ARTS. THE CO-ORDINATE BENCH CONSIDERING THE FACTS, THE LANGUAGE USED AND THE LEGISLATIVE INTENT HELD THAT THE ASSESSEES CLAIM WAS ALLOWABLE. 10.16. WE FIRST REPRODUCED PARA 60 TO 63 TO BRING OUT TH E FACTS AND ARGUMENTS ACCEPTED BY THE CO-ORDINATE BENCH:- 60. LD. AR FURTHER CONTENDED THAT THE ASSESSEE COM PANY ENTERED INTO ANY CONCESSION AGREEMENT WITH TEA FOR DEVELOPMENT O F AN EXPRESSWAY BETWEEN NOIDA AND AGRA AND ASSESSEE WAS GIVEN A RIG HT TO COLLECT TOLL/FEES FROM THE USERS OF EXPRESSWAY, HENCE, EXPR ESSWAY WAS ACTUALLY A TOLL ROAD. LD. AR FURTHER POINTED OUT TH AT THE ASSESSEE COMPANY, IN ADDITION TO COLLECTION OF TOLL RIGHT, W AS ALSO GRANTED 25 MILLION SQ. METER LAND FOR DEVELOPMENT ON COST OF ACQUISITION PLUS LEASE PREMIUM OF RS. 100/- PER HECTARE PER ANNUM AND IN TURN THE ASSESSEE COMPANY WAS UNDER OBLIGATION TO DEVELOP, D ESIGN, ENGINEER, FRAME, PROCURE AND CONSTRUCT TOLL ROAD AND HENCE, THE INCOME FROM SALE/DEVELOPMENT OF LAND WAS INDEED INCOME DERIVED FROM BUSINESS OF DEVELOPMENT OF ROAD AND WOULD BE ELIGIBLE FOR DEDUCTION. 61. LD. AR, REITERATING ASSESSEES ARGUMENTS AND SU BMISSIONS BEFORE AO VIDE LETTER DATED 21.12.2011, SUBMITTED THAT THE CONSIDERATION FOR DEVELOPING, OPERATING AND MAINTAINING THE SAID INFRASTRUCTURE FACILITY IS PROVIDED, INTER ALIA, BY WAY OF RIGHT TO DEVELOP AND SUB LEASE THE ADJOINING LAND ALLOTTED T O ASSESSEE IS EVIDENT FROM CONCESSION AGREEMENT EXECUTED BETWEEN ASSESSEE AND THE TEA AND RELEVANT EXTRACTS, CONDITIONS AND C LAUSES CLEARLY DEMONSTRATE THAT THE ASSESSEE WAS UNDER OBLIGATION OF DEVELOPMENT, OPERATION AND MAINTENANCE OF THE EXPRESSWAY AND DEV ELOPMENT OF 25 MILLION SQ. METRE LAND ALONG THE PROPOSED EXPRESSWA Y FOR COMMERCIAL, INDUSTRIAL, INSTITUTIONAL, AMUSEMENT AND RESIDENTIA L DEVELOPMENT. IT WAS ALSO EXPLAINED THAT AS PER CONCESSION AGREEMENT, TH E ASSESSEE COMPANY WAS UNDER OBLIGATION TO PAY COST OF ACQUISITION PLU S LEASE RENT OF RS.100/- PER HECTARE PER ANNUM FOR THE LAND PROPOSE D TO BE USED FOR CONSTRUCTION OF EXPRESSWAY AND ALSO FOR THE 25 MILL ION SQUARE METER LAND FOR DEVELOPMENT ALONG THE PROPOSED EXPRESSWAY AT FIVE OR MORE LOCATIONS. LD. AR FURTHER EXPLAINED THAT THE ASSESS EE WAS NOT GRANTED ANY TITLE OVER THE EXPRESSWAY AND LAND USED FOR CON STRUCTION OF EXPRESSWAY EXCEPT RIGHT TO COLLECT TOLL/FEES AS PRE SCRIBED BY GOVT. OF UP FROM TIME TO TIME ONLY DURING CONCESSION PERIOD OF 36 YEARS AND ASSESSEE WAS GRANTED LAND FOR DEVELOPMENT WITH RIGH T TO FURTHER SUB- LEASE DEVELOPED OR UNDEVELOPED LAND TO SUB LESSEES OR LAND USERS. I.T.A .NO.-414/DEL/2015 PAGE 78 OF 95 62. LD. DR HAS FURTHER DRAWN OUR ATTENTION TOWARDS CHAPTER IV OF CONCESSION AGREEMENT CLAUSES 4.3(D), 4.4 AND 4.5 AN D SUBMITTED THAT THE OBJECT OF THE INFRASTRUCTURE SCHEME CAN BE SEEN FROM THE GLOBAL TENDER NOTICE INVITING OFFERS TO SHOW THAT THE INFR ASTRUCTURE FACILITY AS ENVISAGED WAS ROAD INCLUDING TOLL ROAD ALONG WITH D EVELOPMENT OF INFRASTRUCTURE FOR COMMERCIAL, INDUSTRIAL, AMUSEMEN T, RESIDENTIAL AND INSTITUTIONAL DEVELOPMENT. FURTHER, THE LAND WAS TO BE OFFERED ON ACQUISITION COST ON LEASE FOR 90 YEARS BY THE TEA A ND THE DEVELOPMENT OF THE SAID LAND AND WORKS THEREON WAS A MEANS FOR COMPENSATION AND CONSIDERATION TO THE INFRASTRUCTURE DEVELOPER I.E. THE ASSESSEE IN VIEW OF THE SAME. IT WAS AN OBLIGATION ON THE ASSESSEE TOWA RDS THE OBJECTIVE OF THE INFRASTRUCTURE DEVELOPMENT AND AS SOURCE OF FUN DS FOR MEETING THE INVESTMENT INVOLVED IN THE PROJECT. LD. AR VEHEMENTLY CONTENDED THAT IN VIEW OF ABOVE FACTS, THE REVENUE/PROFITS GENERAT ED FROM SUB- LEASING OF PLOTS/LAND EARNED BY THE ASSESSEE ARE DE FINITELY AN INCOME DERIVED FROM THE BUSINESS OF DEVELOPMENT O F ROAD AND WOULD BE ELIGIBLE FOR DEDUCTION. LD. AR POINTED OUT THAT THE DEVELOPMENT OF LAND WAS AN INTEGRAL AND INSEPARABLE PART OF THE BUSINESS OF ROAD DEVELOPMENT DUE TO ITS INEXTRICABL E PROXIMITY WITH FINANCIAL VIABILITY OF THE PROJECT AND THE WOR D BUSINESS IS WIDE ENOUGH TO COVER WITHIN ITS SCOPE THE PROFITS F ROM ALL ACTIVITIES THAT ARE INTEGRAL PART OF ROAD DEVELOPME NT. TO SUPPORT ASSESSEES CLAIM, LD. AR ALSO POINTED OUT THAT SINC E SUB-LEASE OF PLOTS IS MADE PURSUANT TO THE RIGHTS GRANTED UNDER THE CONCESSION AGREEMENT, THEREFORE, THE INCOME EARNED FROM SUB- LEASE OF LAND PLOTS IS THE INCOME DERIVED FROM BUS INESS OF ROAD DEVELOPMENT AND HENCE, THE SAME ELIGIBLE FOR EXEMPT ION U/S 80IA(4)(I) OF THE ACT BECAUSE THE ASSESSEE STARTED ITS BUSINESS OPERATIONS FROM 5.4.2007 ONWARDS. 63. LD. AR HAS AGAIN DRAWN OUR ATTENTION TOWARDS SU BMISSIONS OF THE ASSESSEE DATED 23.12.2011 BEFORE THE AO AND SUBMITT ED THAT THE INCOME FROM SUB-LEASE OF LAND FOR DEVELOPMENT IS IN COME DERIVED FROM THE BUSINESS OF INFRASTRUCTURE FACILITY. LD. AR FUR THER ILLUSTRATED THAT IN CASE THE ASSESSEE HAD RECEIVED A SUM OF MONEY AS CO NSIDERATION FROM THE STATE GOVERNMENT, THEN UNDISPUTEDLY THE SAID SU M OF MONEY WOULD BE INCOME FROM THE BUSINESS OF INFRASTRUCTURE FACIL ITY AND IF INSTEAD OF A SUM OF MONEY, THE ASSESSEE HAS BEEN ALLOTTED LAND F OR DEVELOPMENT WITH RELATED RIGHTS AND OBLIGATIONS, THEN OBVIOUSLY THE INCOME ON SUB- LEASE OF THE LAND IS JUST A SUM OF MONEY IN KIND ON ITS REALISATION AND IS INCOME FROM THE BUSINESS OF SAID INFRASTRUCTURE FAC ILITY. LD. AQR FURTHER CONTENDED THAT THE SAID INCOME FROM SUB LEASE OF LA ND HAS BEEN UTILIZED FOR DEVELOPING THE INFRASTRUCTURE FACILITY AND SAME WAS ACTUALLY UTILIZED DURING THE RELEVANT FINANCIAL YEAR FOR INFRASTRUCTU RE FACILITY PROJECT AND THE OVERALL COST/CAPITAL EXPENDITURE WAS FOR EXCEED ING FROM THE INCOME DERIVED THEREFROM AND AS SUCH THERE WAS NO TAXABLE INCOME. 10.17. THE ASSESSEES RE-JOINDER AS RECORDED BY THE CO-ORD INATE BENCH IS ALSO REPRODUCED HEREUNDER FOR THE SAKE OF COMPLETENESS:- I.T.A .NO.-414/DEL/2015 PAGE 79 OF 95 70. LD. AR PLACING REJOINDER TO THE ABOVE LEGAL CO NTENTIONS OF THE REVENUE, SUBMITTED THAT THE LANGUAGE USED IN CLAUSE (C) IS HAS STARTED OR STARTS. THE EXPRESSION HAS STARTED INDICATES THE EVENTS WHICH HAVE ALREADY OCCURRED WHEREAS THE EXPRESSION START S INDICATES THE EVENTS WHICH WOULD OCCUR AND SINCE THE ASSESSEE IS IN THE BUSINESS OF DEVELOPING, OPERATING AND MAINTAINING ROAD INCLUDI NG TOLL ROAD WHICH BUSINESS HAS COMMENCED ON 5.4.2007, THEREFORE, THE CONDITION LAID DOWN IN CLAUSE (C) OF SUB-SECTION 80IA(4)(I) IS WHO LLY SATISFIED. LD. AR, REITERATING HIS ARGUMENTS BEFORE THE AO, SUBMITTED THAT DEDUCTION IS AVAILABLE EVEN TO AN ENTERPRISE ONLY DEVELOPING TH E INFRASTRUCTURE FACILITY, MEANING THEREBY AN ENTERPRISE NOT OPERAT ING AND MAINTAINING THE INFRASTRUCTURE FACILITY BUT ONLY DEVELOPING THE SAME IS ALSO ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT. LD. AR ALSO CONT ENDED THAT IF A VIEW IS TAKEN THAT AS PER CLAUSE (C) OF SECTION 80IA(4)( I) THE DEDUCTION IS AVAILABLE ONLY AFTER THE ENTERPRISE STARTS OPERATI NG AND MAINTAINING THE INFRASTRUCTURE FACILITY, THE ENTERPRISE ONLY DE VELOPING SUCH INFRASTRUCTURE FACILITY WOULD NEVER BE ELIGIBLE FOR ANY DEDUCTION UNDER THIS SECTION, BECAUSE SUCH AN ENTERPRISE WOULD NEVE R OPERATE OR MAINTAINING THE INFRASTRUCTURE FACILITY. LD. AR RE PEATED HIS EARLIER ARGUMENTS AND SUBMITTED THAT IT IS A SETTLED LEGAL PREPOSITION THAT A PROVISIONS SHOULD BE INTERPRETED IN SUCH A MANNER S O THAT IT SUBSERVES THE PURPOSE FOR WHICH IT IS ENACTED AND DOES NOT FR USTRATE THE SAME. 10.18. CONSIDERING THE ARGUMENTS, THE CO-ORDINATE BENCH CO NCLUDED THAT THE ASSESSEE IS IN THE BUSINESS OF DEVELOPMENT OF INFRA STRUCTURE FACILITY OF ROAD INCLUDING TOLL ROAD AND THE ASSESSEES ACTIVITIES FELL WITHIN THE AMBIT OF CLAUSE (A) OF EXPLANATION TO SUB-SECTION 80IA(4)(I) OF SEC TION 80IA REJECTING THE CONCLUSIONS DRAWN BY THE CIT, NOIDA AS THE ACTIVITY OF SUB-LEASE OR SALE OF LAND FOR DEVELOPMENT WHICH WAS RECEIVED BY THE ASSE SSEE WAS FOUND TO BE A MAJOR PART OF CONSIDERATION OF PROJECT AND IT WAS FOUND TO BE AN INSEPARABLE PART OF THE MAIN BUSINESS ACTIVITY OF D EVELOPMENT OF INFRASTRUCTURAL FACILITY. 10.19. FOR READY-REFERENCE, THESE RELEVANT EXTRACTS ARE R EPRODUCED HEREUNDER:- 71. IN OUR HUMBLE UNDERSTANDING, STATUTORY PROVISI ON SHOULD BE INTERPRETED IN THE LIGHT OF INTENTION OF LEGISLATIO N, HEADING GIVEN TO THE PROVISION, LANGUAGE USED THEREIN AND THE CONTEXT IN WHICH THE PARTICULAR PROVISO OF THE ACT REQUIRES INTERPRETATION. THE HEA DING GIVEN BY LEGISLATURE TO SECTION 80IA OF THE ACT READS AS UND ER:- I.T.A .NO.-414/DEL/2015 PAGE 80 OF 95 DEDUCTION IN RESPECT OF PROFITS AND GAINS FROM IND USTRIAL UNDERTAKING OR ENTERPRISES ENGAGED IN INFRASTRUCTUR E DEVELOPMENT ETC. 72. MEANING THEREBY THE PROVISIONS OF SECTION 80IA OF THE ACT IS RELATED TO THE DEDUCTION IN RESPECT OF PROFITS AND GAINS FR OM ENTERPRISES ENGAGED IN INFRASTRUCTURE DEVELOPMENT ETC. WE FURTHER NOTE THAT AS PER LANGUAGE USED THEREIN SUB-SECTION (1) GRANTS DEDUCTION IN RE SPECT OF ANY PROFITS AND GAINS DERIVED BY AN UNDERTAKING OR AN ENTERPRIS E FROM ANY BUSINESS REFERRED TO IN SUBSECTION (4) THEREOF, UND ER SUB-SECTION (2) THE ADMISSIBLE DEDUCTION IS 100% OF THE PROFITS AND GAI NS OF ELIGIBLE BUSINESS FOR TEN (10) CONSECUTIVE ASSESSMENT YEARS (AY) OUT OF TWENTY (20) AYS BEGINNING WITH THE AY IN WHICH SUCH UNDERT AKING OR ENTERPRISE DEVELOPS AND BEGINS TO OPERATE ANY INFRASTRUCTURE F ACILITY REFERRED IN CLAUSE (III) OF SUB-SECTION (4). 73. WE MAY FURTHER NOTE THAT SUB-SECTION (4)(I) R/W CLAUSE (A) AND (B) ARE RELATED TO DEDUCTION IN RESPECT OF THE ENTERPRISE C ARRYING ON BUSINESS OF (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRUCTURE FACILI TY WHICH FULFILS THE FOLLOWING CONDITIONS:- (A) IT IS OWNED BY A COMPANY REGISTERED IN INDIA OR BY CONSORTIUM OF SUCH COMPANIES; (B) IT HAS ENTERED INTO AN AGREEMENT WITH CENTRAL G OVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORITY OR ANY STATUTORY BO DY FOR (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPI NG, OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY. (C) IT HAS STARTED OR STARTS OPERATING AND MAINTAIN ING THE INFRASTRUCTURE FACILITY ON OR AFTER 1ST DAY OF APRIL, 1995. AS PER PROVISO TO SUB-CLAUSE (C) ABOVE IN CASE OF TRANSFER OF INFRASTRUCTURE FAC ILITY OR AFTER 1.4.1999 BY AN ENTERPRISE WHICH DEVELOPED SUCH INFRASTRUCTURE F ACILITY OR TRANSFEROR ENTERPRISE TO ANOTHER ENTERPRISE I.E. TRANSFEREE EN TERPRISE SHALL APPLY TO THE TRANSFEREE ENTERPRISE AS IF IT WERE THE ENTERPR ISE TO WHICH THIS CLAUSE (C) APPLIES AND THE DEDUCTION FORM PROFITS AND GAIN S WOULD BE AVAILABLE TO SUCH TRANSFEREE ENTERPRISE FOR THE REMAINING OR UNEXPIRED PERIOD. THE ABOVE NOTED MEANING OF AFORESAID PROVISIONS IS APPA RENT FROM THE LANGUAGE USED THEREIN. 74. NOW IF WE CONSIDER THE OBJECT OF LEGISLATION, T HEN AS WE HAVE NOTED EARLIER THAT AS PER THE HEADING GIVEN TO THE PROVIS ION OF SECTION 80IA OF THE ACT, THE OBJECT OF LEGISLATION IS TO PROVIDE DE DUCTION TO THE ENTERPRISES WHICH ARE ENGAGED IN INFRASTRUCTURE DEVELOPMENT ETC . IT MEANS THAT THE INFRASTRUCTURE DEVELOPMENT IS THE MAIN OBJECT OF TH IS PROVISION TO ENCOURAGE ENTREPRENEURS TO PUT THEIR RESOURCES AND ENDEAVOURS TOWARDS INFRASTRUCTURE DEVELOPMENT. IN SUB-SECTION (2) THE WORDS DEVELOPS AND BEGINS TO OPERATE ANY INFRASTRUCTURE FACILITY HAVE BEEN USED. WE ALSO NOTE THAT EXPLAINING THE FIRST AND SECOND CONDITION OR ELIGIBILITY OF DEDUCTION IS PRESCRIBED IN CLAUSES (A) AND (B) TO S UB-SECTION (4)(I) OF THE ACT. I.T.A .NO.-414/DEL/2015 PAGE 81 OF 95 75. NOTICEABLY, SUB-SECTION (4)(I) MANDATES THAT AN Y ENTERPRISE CARRYING ON THE BUSINESS OF (I) DEVELOPMENT OR (II) OPERATIN G AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAINTAINING ANY NEW INFRASTRUCTURE FACILITY WILL BE ENTITLED FOR DEDUCTION EXPLAINING THE THIRD CONDITION FOR ELIGIBILITY OF DEDUCTION WHEREAS IN CLAUSE (C) TO S UB-SECTION (4)(I) IT HAS BEEN PRESCRIBED THAT THE ENTERPRISE WOULD BE ELIGIB LE FOR DEDUCTION WHEN IT STARTED OR STARTS OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR AFTER 1ST DAY OF APRIL 1995. 76. BEFORE GOING FURTHER TO INTERPRET THIRD CONDITI ON PRESCRIBED IN CLAUSE (C) OF SUB-SECTION (4)(I) AS PER OUR HUMBLE UNDERST ANDING, WE NOTE THAT THE DEVELOPMENT IS A CONTINUOUS PROCESS WHICH START S FROM THE DATE OF COMMENCEMENT OF BUSINESS AND BEGINNING OF T HE DEVELOPMENT ACTIVITIES AND COMES TO AN END WHEN DEV ELOPMENT WORK CONCLUDES AND THEREAFTER OPERATION AND MAINTEN ANCE THERETO IS STARTED. WHEN THE INTENTION OF LEGISLATI ON IS THAT THE ENTREPRENEURS SHOULD BE ENCOURAGED AND PROMOTED TOW ARDS INFRASTRUCTURE DEVELOPMENT ETC., THEN IT IS A POSIT IVE INFERENCE THAT THE LEGISLATION INTENDED TO GRANT DEDUCTION FO R THE ENTERPRISES WHICH ONLY DEVELOPS OR WHICH OPERATES A ND MAINTAINS OR WHICH DEVELOPS, OPERATE AND MAINTAIN INFRASTRUCTURE FACILITY. OUR AFORESAID VIEW ALSO FI NDS SUPPORT FROM PROVISO TO SUB CLAUSE (C) TO SECTION 80IA (4)( I) OF THE ACT, WHEREIN IT IS ALSO PROVIDED THAT IF DEVELOPER OF AN INFRASTRUCTURE FACILITY TRANSFERS THE SAME, THEN THE TRANSFEREE EN TERPRISE WOULD ALSO BE ELIGIBLE FOR DEDUCTION AS IF IT WERE THE ENTERPRISE TO WHICH THIS CLAUSE (C) APPLIES I.E. TRANSFEROR ENTERPRISE, MEANING THEREBY THE ENTERPRISE WHICH ONLY DEVELOPS INFRASTRUCTURE FACILITY IS ELIGIBLE F OR DEDUCTION AND IN CASE DEVELOPER TRANSFERS THE FACILITY FOR OPERATION OR M AINTENANCE TO ANOTHER ENTERPRISE THEN THE TRANSFEREE WOULD ALSO BE ELIGIB LE TO DEDUCTION FOR THE REMAINING OR UNEXPIRED PERIOD AS PER SUB SECTION (2 ) OR OTHER RELEVANT PROVISIONS OF THE ACT. HENCE, IN VIEW OF ABOVE DISC USSION, WE MAY POINT OUT THAT THE LEGISLATION HAS CATEGORICALLY ADOPTED THE DATE OF 1ST DAY OF APRIL 1995 FOR MANDATORY STARTING OR COMMENCEMENT D ATE OF INFRASTRUCTURE FACILITY DEVELOPMENT AND THE ENTERPR ISES WHICH STARTED DEVELOPING OR STARTS OPERATING AND MAINTAINING INFR ASTRUCTURE FACILITY ON OR AFTER 1STR DAY OF APRIL, 1995 ARE HELD TO BE ELI GIBLE FOR DEDUCTION U/S 80IA(4)(I) OF THE ACT. 77. WE MAY FURTHER OBSERVE THAT THE ELABORATE MEANI NG OF COLLECTIVE AND CUMULATIVE READING OF SUB SECTION (2) AND (4)(I) MA NDATES THREE PRE- CONDITIONS IN CLAUSE (I) OF SUB-SECTION (4) VIZ. (A ), (B) AND (C) AND IT IS REQUIRED FOR THE ENTERPRISE WHICH CLAIM DEDUCTION T HAT ALL THREE CONDITIONS SHOULD BE FULFILLED SIMULTANEOUSLY. IF T HE INTENTION OF LEGISLATION WAS THE DEDUCTION WOULD BE ALLOWED ONLY TO THE ENTERPRISE WHO DEVELOPS AND BEGINS TO OPERATE AND MAINTAIN INF RASTRUCTURE FACILITY THEN IT WAS NOT REQUIRED TO SEGREGATE OR MANDATE TH E BUSINESS OF (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (II I) DEVELOPING, OPERATING AND MAINTAINING AS STIPULATED IN SUB SECTION (4)(I) AND CONDITION (A) AND (B) THERETO. THIS INTERPRETATION ALSO FINDS SUPPORT FROM PROVISO TO I.T.A .NO.-414/DEL/2015 PAGE 82 OF 95 SUBCLAUSE (C) I.E. THIRD CONDITION WHEREIN THE TRAN SFEREE OF INFRASTRUCTURE FACILITY IS ALSO HELD TO BE ELIGIBLE IN THE SAME MA NNER IN WHICH THE TRANSFEROR WHICH DEVELOPED SUCH INFRASTRUCTURE FACI LITY, IS ELIGIBLE FOR THE REMAINING OR UNEXPIRED PERIOD OF DEDUCTION. IN THIS SITUATION, WE MAY SAFELY INFER OR DRAW A CONCLUSION THAT THE INTENTIO N OF THE LEGISLATION IS TO GRANT DEDUCTION NOT ONLY TO AN EN TERPRISE WHICH DEVELOPS, OPERATES AND MAINTAINS BUT ALSO TO AN ENT ERPRISE WHICH ONLY DEVELOP INFRASTRUCTURE FACILITY. WE, THEREFORE, DECLINE TO ACCEPTANCE INTERPRETATION OF SECTION 80IA OF THE AC T AS GIVEN BY LD. CIT DR IN HER WRITTEN SUBMISSIONS PLACED BEFORE US DURI NG ARGUMENTS. 78. WE FURTHER CONSIDER THE CONTENTION OF THE LD. A R THAT THE COMPANY STARTED AND BEGAN TO OPERATE ITS BUSINESS ACTIVITIE S FROM 5.4.2007 AND IRRESPECTIVE OF THE FACT THAT THE INFRASTRUCTURE FA CILITY WAS FORMALLY INAUGURATED BY THE HONBLE CHIEF MINISTER OF UP GOV ERNMENT ON 9.8.2012, THE ASSESSEE IS ELIGIBLE FOR DEDUCTION W. E.F. AY 2009-10 (RELEVANT TO FINANCIAL YEAR 2008-09) AND ONWARDS AS AND WHEN BUSINESS ACTIVITIES OF DEVELOPING INFRASTRUCTURE HA S BEGUN, THEN INCOME DERIVED FROM BUSINESS WOULD BE CERTAINLY ELIGIBLE F OR DEDUCTION. LD. AR HAS ALSO CONTENDED THAT THE ACTIVITY OF SUB LEASE O R SALE OF LAND FOR DEVELOPMENT, WHICH WAS RECEIVED BY THE ASSESSEE AS A MAJOR PART OF CONSIDERATION OF PROJECT, IS AN INTEGRAL AN D INSEPARABLE PART OF MAIN BUSINESS ACTIVITY OF DEVELOPMENT OF IN FRASTRUCTURE FACILITY, THEREFORE, INCOME/PROFITS DERIVED DURING AY 2009-10 FROM SUB-LEASE OF LAND ARE THE FIRST DEGREE OPERATI ONAL PROFITS OF THE BUSINESS WHICH IS ELIGIBLE FOR DEDUCTION U/S 80 IA(4)(I) READ WITH EXPLANATION (A) THERETO. 79. SINCE WE HAVE ALREADY HELD THAT THE ASSESSEE COMPAN Y IS IN THE BUSINESS OF DEVELOPMENT OF ROAD INCLUDING TOLL ROAD INFRASTRUCTURE FACILITY AND THE ENTERPRISES WHICH O NLY DEVELOPS INFRASTRUCTURE FACILITY ARE ELIGIBLE FOR DEDUCTION U/S 80IA(4)(I) OF THE ACT FROM THE DATE WHEN IT BEGINS TO OPERATE ITS BUSINESS ACTIVITY OF DEVELOPMENT OF INFRASTRUCTURE FACILITY. LD. CIT DR COULD NOT DEMOLISH THESE CONTENTIONS OF THE ASSESSEE INCLUDING THE CON TENTION THAT THE BUSINESS OPERATIONS OF ELIGIBLE ENTERPRISES VISUALI SES THE DEVELOPMENT OF INFRASTRUCTURE FACILITY. WHEN DEVELOPMENT ACTIVITIES COME TO AN END OR COMPLETED AND SUCH ACTIVITY BEGINS TO FACILITATE THE INTENDED USERS, THE ACT OF OPERATION AND MAINTENANCE STARTS ONLY AFTER CREATION OF ENTIRE OR PART DEVELOPMENT OF INFRASTRU CTURE FACILITY AS PER REQUIREMENT. FURTHER, THE DEVELOPMENT WORK M AY SPREAD OVER YEARS WHICH FALLS UNDER SEVERAL ASSESSMENT PER IOD/YEARS AND IF THE BENEFICIARY IS EXPECTED TO COMPLETE THE PROJECT OR COMPLETION OF PROJECT IS CONSIDERED TO BE A PRE-CON DITION FOR DEDUCTION, THEN THE ELIGIBLE DEVELOPING ENTERPRISE WILL HAVE TO WAIT TILL COMPLETION OF THE ENTIRE PROJECT DURING W HOLE DEVELOPMENT PERIOD, WHICH MAY HAVE SPREAD OVER SEVE RAL YEARS, FOR WANT OF THIS IMPRACTICAL CONDITION. IN THIS SIT UATION, THE ELIGIBLE ENTERPRISE WOULD BECOME ELIGIBLE ONLY IN T HE LAST YEAR OF DEVELOPMENT WHEREIN DEVELOPMENT WORK ENDS AND INFRASTRUCTURE I.T.A .NO.-414/DEL/2015 PAGE 83 OF 95 FACILITY BEGINS TO OPERATE, THIS CERTAINLY CAN NOT BE AN INTENTION OF THE BENEFICIAL TAXATION LEGISLATION. 80. WE FURTHER DECLINE TO ACCEPT THE CONTENTION OF LD. CIT, NOIDA AND LD. CIT DR THAT SINCE THE ASSESSEE HAS NOT MAINTAINED S EPARATE BOOKS OF ACCOUNTS AND HAS NOT CREATED A RESERVE AS REQUIRED IN RULE 18BBC AND HAS NOT FIELD REQUIRED UTILIZATION CERTIFICATE IN F ORM 10CCC, THEREFORE, THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION U/S 80IA (4)(I) OF THE ACT AS THE SALE OF LAND OR OTHER ACTIVITIES BEING INTEGRAL PAR T OF ITS HIGHWAY PROJECT BECAUSE SINCE BY EARLIER PART OF THIS ORDER, WE HAVE HELD THAT THE ASSESSEE IS IN THE BUSINESS OF DEVELOPMENT OF INFRA STRUCTURE FACILITY OF ROAD INCLUDING TOLL ROAD AND THE ASSE SSEE ACTIVITIES FALL WITHIN THE AMBIT OF CLAUSE (A) OF EXPLANATION TO SUB-SECTION (4)(I) OF SECTION 80IA OF THE ACT AND ALLEGATIONS A ND CONCLUSION OF LD. CIT, NOIDA ARE CONTRARY TO THE FACTS AND CIRCUM STANCES OF THE ACT. 81. IN VIEW OF FOREGOING DISCUSSION, WE ARE OF THE CONSIDERED VIEW THAT THE BENEFICIAL TAXATION PROVISIONS DESERVE A LIBERA L INTERPRETATION WHICH ACTUALLY SUBSERVE THE VERY PURPOSE AND OBJECT OF TH E LEGISLATION AND DOES NOT DEFEAT OR FRUSTRATE THE SAME AS HAS BEEN H ELD IN SEVERAL DECISIONS AND ORDERS OF HONBLE SUPREME COURT AND H IGH COURT INCLUDING DECISION IN THE CASE OF HONBLE APEX COUR T IN THE CASE OF CIT VS VATIKA TOWNSHIP LTD. 367 ITR 466 (SC). 10.20. THE POSITION WAS AGAIN RE-ITERATED BY THE CO-ORDINA TE BENCH IN CATEGORIC TERMS AS WOULD BE EVIDENT FROM THE FOLLOW ING EXTRACT:- 101. WE MAY FURTHER NOTE THAT BY THE EARLIER PART OF THIS ORDER, WE HAVE HELD THAT THE ASSESSEE COMPANY IS INTO THE BUSINESS OF DEVELOPMENT OF INFRASTRUCTURE FACILITY I.E. WHICH I S A TOLL ROAD AS PER ITS OPERATIONAL FEATURES AND CONTROLLED AND CHA RGEABLE ACCESS AND EXIT AND THE ASSESSES CLAIM UNDER CLAUS E (A) OF EXPLANATION TO SECTION 80IA (4) (I) OF THE ACT IS J USTIFIABLE AND PLAUSIBLE AS PER RELEVANT PROVISIONS OF THE ACT IN THE LIGHT OF THE CHARACTER, FACTS AND CIRCUMSTANCES OF THE BUSINESS OF THE ASSESSEE. HENCE, WE ARE OF THE CONSIDERED OPINION T HAT THE PREPOSITIONS OF TWO VIEWS IS NOT APPLICABLE TO THE PRESENT CASE AND EVEN IF VIEW POSED BY THE LD. CIT IS ANALYSED T HEN WE NOTE THAT THE LD. CIT HIMSELF HAS NOT CONCLUSIVELY DECIDED THAT T HE ASSESSEES CLAIM OF DEDUCTION FALLS UNDER AMBIT OF CLAUSE (B) OF EXP LANATION TO SECTION 80IA (4) (I) OF THE ACT. 10.21. CONSIDERING THE RATIO OF THE DECISIONS RELIED UPON BY THE REVENUE TO SHOW THAT THE ASSESSMENT ORDER IN THE BASE YEAR WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, THE CO-ORDINATE BEN CH DISMISSED THE CLAIM AND I.T.A .NO.-414/DEL/2015 PAGE 84 OF 95 UPHELD THE CORRECTNESS OF THE ORDER AGAIN IN CATEGO RIC TERMS BY HOLDING AS UNDER:- 110. IN VIEW OF RATIOS LAID DOWN BY THE JUDGMENTS, AS RELIED BY THE LD. CIT DR AND HAVING GONE THROUGH THE FACTS OF THESE C ASES, AT THE OUTSET, WE SINCERELY NOTE THAT JUDGMENTS ARE THE LIGHT HOUS ES IN THE PATH OF ADJUDICATION OF TAXATION APPEALS BUT WE RESPECTFULL Y OBSERVE THAT THE BENEFIT OF THE RATIO OF THE SAME IS NOT AVAILABLE T O THE REVENUE AS THE PRESENT CASE IS NEITHER A CASE OF NO ENQUIRY NOR IS A CASE WHERE THE AO, FAILED TO MAKE NECESSARY ENQUIRY AND THE ASSESSMENT ORDER WAS PASSED WITHOUT ANY DISCUSSION OR ENQUIRY AND THE AO ALLOWED THE CLAIM OF THE ASSESSEE WITHOUT APPLICATI ON OF MIND AND THUS, WE RESPECTFULLY HOLD THAT THE BENEFIT OF THE RATIO OF THESE ORDERS/ JUDGMENTS ARE NOT AVAILABLE FOR THE REVENUE IN THE PRESENT APPEAL AS THE FACTS AND CIRCUMSTANCES OF THE PRESEN T CASE ARE CLEARLY DISTINGUISHABLE FROM THE FACTS OF THESE CASES AND I NSTANT CASE IS NOT A CASE WHEREIN THE AO PASSED ASSESSMENT ORDER WITHOUT ANY ENQUIRY, WITHOUT APPLICATION OF MIND AND THE AO FAILED TO MA KE PROPER ENQUIRY. (EMPHASIS PROVIDED) 10.22. WE NOTE THAT THE ASSESSMENT ORDER IN THE BASE YEAR HAS ALSO BEEN EXAMINED BY THE CO-ORDINATE BENCH IN THE LIGHT OF T HE RATIO OF THE HONBLE DELHI HIGH COURT IN CIT VS DLF LTD. (2013) 350 ITR 555 (D ELHI) TO SEE WHETHER THE ASSESSMENT ORDER PASSED BY THE AO COULD BE CONSIDER ED TO BE UNSUSTAINABLE IN LAW. CONSIDERING THE RATIO OF THE SAID JUDGEMENT, THE CO-ORDINATE BENCH FOUND THAT THE REQUISITE SHORTCOMING WAS NOT EVIDENT IN T HE ASSESSMENT ORDER. 10.23. THE CO-ORDINATE BENCH IN PARA 119 IT IS SEEN EVEN PROCEEDED TO CONSIDER THE ISSUE OF ALLOWABILITY OF DEDUCTION ON THE INCOME EARNED BY THE ASSESSEE FROM INTEREST ON FIXED DEPOSITS OF SURPLUS FUNDS WITH BANKS AND ALLOWABILITY OF DEPRECIATION CLAIMED AND ALLOWED BY THE AO AND IT NOTED THAT IN THE ABSENCE OF SPECIFIC NOTICE BY CIT, NOIDA THEREO N THE DISALLOWANCE DIRECTED WAS NOT PERMISSIBLE. NOT STOPPING THERE THE CO-ORD INATE BENCH NOTING THE ARGUMENTS OF THE ASSESSEE PROCEEDED TO HOLD THIS I SSUE IS COVERED IN FAVOUR OF I.T.A .NO.-414/DEL/2015 PAGE 85 OF 95 THE ASSESSEE ON ALL FOUR CORNERS AND SUMMED UP THE POSITION IN PARA 127 OF THEIR ORDER HOLDING AS UNDER:- 127. IN THE LIGHT OF AFORESAID DISCUSSION, IF WE A NALYSE THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE OBSERVE THAT THE ASSESSEE COMPANY IS IN THE BUSINESS OF DEVELOPING, OPERATING AND MAINTAINING INFRASTRUCTURE FACILITY PROJECT SINCE I TS INCORPORATION W.E.F. 5.4.2007. WE ALSO OBSERVE THAT THE DEVELOPMENT OF THE TOLL ROAD WITH CONTROLLED ACCESS AND EXIT PO INTS AND RIGHT TO COLLECT TOLL FROM THE USERS CLEARLY PUT THE EXPRESSWAY WITHIN THE AMBIT OF ROAD WHICH IS A TOLL ROAD. WE FURTHER HOLD THAT THE DEVELOPMENT OF THE EXPRESSWAY BETWEEN NOIDA AND AGRA AND DEVELOPME NT OF FIVE LAND PARCELS ADJACENT TO EXPRESSWAY ARE INSEPARABLE AND INTEGRAL PART OF ONE PROJECT AND THE ASSESSEE IS EN TITLED AND ELIGIBLE FOR DEDUCTION U/S 80IA (4) OF THE ACT ON T HE INCOME EARNED AND DERIVED FROM THE BUSINESS OF DEVELOPMENT OF INFRASTRUCTURE FACILITY DURING AY 2009-10 AFTER COM MENCEMENT OF ITS BUSINESS W.E.F. 5.4.2007 AT THE OPTION OF THE A SSESSEE WHICH CANNOT BE DENIED BY WRONGLY PUTTING THE CASE OF THE ASSESSEE IN CLAUSE (B) OF EXPLANATION TO SECTION 80IA(4)(I) OF THE ACT. (EMPHASIS PROVIDED) 10.24. ACCORDINGLY ON CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE RELEVANT PROVISIONS WHICH HAVE BEEN CONSIDERED BY THE CO-ORDINATE BENCH IN THE BASE YEAR AND CONSIDERING THE ASSESSMENT ORDER WHICH WAS U/S 143(3) IN THE BASE YEAR WHICH REMAINS UNDISTURBED AND THE ASSESSMENT ORDER U/S 143(3) IN THE IMMEDIATELY PREC EDING ASSESSMENT YEAR WHICH HAS BEEN PASSED BY A DIFFERENT ASSESSING OFFI CER THEN THE ONE WHO PASSED THE ORDER IN THE BASE YEAR, WE FIND THAT THE REVENUE HAS FAILED TO MAKE OUT A CASE TO SHOW HOW THE CLAIM OF DEDUCTION UNDER CLAUSE (A) OF EXPLANATION U/S 80IA(4) CAN BE HELD TO BE DISALLOWABLE. NO FR ESH ARGUMENT HAS BEEN PLACED BY THE REVENUE BEFORE US TO EITHER SHOW INFI RMITY IN THE REASONING ADOPTED IN THE JUDICIAL PRECEDENT AVAILABLE OR TO J USTIFY WHY IT SHOULD NOT BE FOLLOWED. THE REPETITION OF ARGUMENTS ALREADY ADVA NCED WHICH HAVE BEEN I.T.A .NO.-414/DEL/2015 PAGE 86 OF 95 CONSIDERED AND NOT ACCEPTED BY THE CO-ORDINATE BENC H IN A SPEAKING ORDER CANNOT BE OF MUCH HELP. IN THE ABSENCE OF ANY INFI RMITY JUSTIFYING DEVIATION FROM THE VIEW TAKEN IN THE BASE YEAR, WE FIND NO JU STIFICATION FOR DEVIATING THEREFROM ON SAME SET OF FACTS AND LAW. FINDING OU RSELVES IN AGREEMENT WITH THE CONCLUSIONS ARRIVED AT BY THE CO-ORDINATE BENCH IN THE BASE YEAR, WE FIND THAT THE ASSESSEE SUCCEEDS IN ITS MAIN PRAYER. ACC ORDINGLY THE WITHOUT PREJUDICE CLAIM U/S 80IA(6) BECOMES ACADEMIC AND RE QUIRES NO ADJUDICATION AT THIS STAGE. 10.25. WE FIND THAT THE ISSUES OF OTHER INCOME AND DEPR ECIATION CAN BE SAID TO HAVE ALSO BEEN CONSIDERED TO SOME DEGREE BY THE CO-ORDINATE BENCH. SIMILARLY THE FACTS RELATABLE TO THE CLAIM U/S 40(A )(IA) HAVE ALSO BEEN NOTED IN PASSING BY THE CO-ORDINATE BENCH. SINCE FACTS RELA TABLE TO THIS ARE NOT IN DISPUTE THE ISSUE IS CLAIMED TO BE ALLOWABLE IN THE LIGHT OF THE PROPOSITION OF LAW CANVASSED ON ADMITTED FACTS. THESE ASPECTS, WE SHAL L ELABORATE HEREINAFTER. 10.26. ADDRESSING THE REMAINING ISSUES IN THE PRESENT APPE AL, IT IS SEEN THAT VIDE GROUND NUMBER AND 7 THE ASSESSEE BEFORE THE CO -ORDINATE BENCH ADDRESSED THE DENIAL OF DEDUCTION IN RESPECT OF INT EREST ON FDRS AND DEPRECIATION. QUA DEPRECIATION, IT IS SEEN THAT THE ARGUMENTS ON BEHALF OF THE PARTIES BEFORE THE BENCH HAVE BEEN FOUND RECORDED I N PARAS 93 ONWARDS BY THE CO-ORDINATE BENCH. A PERUSAL OF THE SAME SHOWS THA T THE REVENUE ARGUED THAT THAT THE ASSESSEE HAD CLAIMED DEDUCTION U/S 80IA OF THE ACT ON INTEREST INCOME ON FDS MADE BY DEPLOYING ITS SURPLUS FUNDS IN THE B ANK AND THE SAME HAS BEEN ERRONEOUSLY ACCEPTED BY THE AO. THE LD. CIT- D R IN THE FACTS OF THAT CASE I.T.A .NO.-414/DEL/2015 PAGE 87 OF 95 RELIED UPON VODAPHONE ESSAR LTD. (2013) 153 TTJ (CH D) 451, SO AS TO CANVASS THAT WHERE, IN A GIVEN SITUATION, AN IDENTICAL ISSU E HAD BEEN OVERLOOKED BY THE AO AND THE CIT HAD INVOKED THE POWERS AVAILABLE U/S 263 OF THE ACT, IT WAS HELD BY THE ITAT THAT THE AO HAD FAILED TO MAKE PRO PER INVESTIGATION INTO THE ELIGIBILITY OF THE ASSESSEE IN VIOLATION TO THE CLA IM OF DEDUCTION U/S 80IA OF THE ACT ON THE BUSINESS PROFITS, INTEREST AND OTHER INC OME RECEIVED DURING THE YEAR, THEREFORE, THE ORDER OF THE AO WAS HELD TO BE ERRON EOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THE TRIBUNAL UPHELD THE ORDER OF THE CIT U/S 263 OF THE ACT. WE FIND THAT THE CO-ORDINATE BENCH ALSO P ROCEEDS TO RECORD THE ARGUMENTS OF THE LD. CIT DR BY NOTING THAT IT WAS ALSO POINTED OUT BEFORE THEM THAT THE ASSESSEE HAD CLAIMED DEPRECIATION AMO UNTING TO RS. 22.97 CRORES AND HAD BEEN GRANTED BY THE AO EVEN WHILE TH E HIGHWAY PROJECT HAD NOT BEEN COMPLETED, THEREFORE LD. CIT RIGHTLY H ELD THAT THE ASSESSMENT ORDER WAS PATENTLY ERRONEOUS AND PREJUDI CIAL TO THE INTEREST OF THE REVENUE. 10.27. WE FIND THAT THE SAID SUBMISSION OF THE REVENUE WA S OPPOSED BY THE ASSESSEE BEFORE THE CO-ORDINATE BENCH AS WOULD BE E VIDENT FROM THE FOLLOWING PARA:- 95. THE LD. AR PLACED BRIEF REJOINDER TO THE ABOVE SUBMISSIONS AND CONTENTIONS OF THE LD. CIT-DR AND POINTED OUT THAT THE AO MADE SUFFICIENT AND REQUIRED ENQUIRY ABOUT CLAIM OF THE ASSESSEE AS THE AO RAISED SEVERAL QUERIES DURING ASSESSMENT PROCEEDING S AND THE ASSESSEE SUBMITTED DETAILED REPLIES SUPPORTED BY VARIOUS DOC UMENTS AND EVIDENCE TO SHOW THAT THE CLAIM OF THE ASSESSEE IS SUSTAINABLE AND FURTHER, THE AO ADJUDICATED THE QUERIES BY PASSING A DETAILED NOTE SHEET VIDE DATED 30.12.2011 AND THEREFORE, IT CANNOT SAID THAT THE AO DID NOT MAKE ADEQUATE, PROPER AND REQUIRED ENQUIRY WHILE AL LOWING THE CLAIM OF THE ASSESSEE. THE LD. AR ALSO POINTED OUT THAT THE AO TOOK A REASONABLE AND PLAUSIBLE VIEW WHICH CANNOT BE HELD AS UNSUSTAI NABLE BY ANY I.T.A .NO.-414/DEL/2015 PAGE 88 OF 95 STRETCH OF IMAGINATION. THE LD. AR FINALLY SUBMITTE D THAT THE LD. CIT DID NOT CONCLUSIVELY HOLD THAT THE ORDER OF THE AO IS N OT SUSTAINABLE AND THE LD. CIT IS NOT EMPOWERED TO SET ASIDE THE ASSESSMEN T ORDER, WITHOUT ANY CONCLUSION, FOR FRESH ADJUDICATION WITHOUT ANY LEGAL CAUSE OR BASIS, HENCE, IMPUGNED ORDER IS NOT VALID AND JUSTIFIED. (EMPHASIS PROVIDED) 10.28. IT IS SEEN THAT CONSIDERING THE FACTS AND THE POW ER INVOKED BY CIT, NOIDA THE CO-ORDINATE BENCH PROCEEDED TO CONSIDER T HE ISSUES IN THE FOLLOWING MANNER:- 99. IN THE LIGHT OF ABOVE STAGES EMERGED FROM THE LANGUAGE USED IN SECTION 263 OF THE ACT AND THE PROPOSITION & RATIO OF THE DECISIONS RELIED BY BOTH THE PARTIES, WE PROCEED TO EXAMINE THE VALI DITY OF ASSUMPTION OF JURISDICTION. 10.29. AS EXTRACTED EARLIER THE CO-ORDINATE BENCH OBSERVED THAT PRIMA-FACIE THERE MUST BE MATERIAL ON RECORD TO SHOW THAT THE O RDER WAS NOT SUSTAINABLE. THE FOLLOWING PARAS 101 AND 103 EXTRACTED HEREUNDER WILL BRING OUT THE POSITION:- 101. WE MAY FURTHER NOTE THAT BY THE EARLIER PART OF THIS ORDER, WE HAVE HELD THAT THE ASSESSEE COMPANY IS INTO THE BUS INESS OF DEVELOPMENT OF INFRASTRUCTURE FACILITY I.E. WHICH I S A TOLL ROAD AS PER ITS OPERATIONAL FEATURES AND CONTROLLED AND CHA RGEABLE ACCESS AND EXIT AND THE ASSESSES CLAIM UNDER CLAUSE (A) OF EXPLANATION TO SECTION 80IA (4) (I) OF THE ACT IS JUSTIFIABLE AND PLAUSIBLE AS PER RELEVANT PROVISIONS OF THE ACT IN THE LIGHT OF THE CHARACTER, FACTS AND CIRCUMSTANCES OF THE BUSINESS OF THE ASSESSEE. HENCE, WE ARE OF THE CONSIDERED OPINION THAT THE PREPOSITIONS OF TWO VIEWS IS NOT APPLICABLE TO THE PRESENT CASE AND EVEN IF VIEW POS ED BY THE LD. CIT IS ANALYSED THEN WE NOTE THAT THE LD. CIT HIMSELF HAS NOT CONCLUSIVELY DECIDED THAT THE ASSESSEES CLAIM OF DEDUCTION FALL S UNDER AMBIT OF CLAUSE (B) OF EXPLANATION TO SECTION 80IA (4) (I) O F THE ACT. .. 103. IN THE PRESENT CASE, THE AO HAS RAISED A NUMBE R OF QUERIES REGARDING THE CLAIM OF THE ASSESSEE U/S 80IA (4) OF THE ACT WHICH WERE REPLIED BY THE ASSESSEE THROUGH DETAILED SUBMISSION S SUPPORTED BY RELEVANT DOCUMENTS AND OTHER EVIDENCE COUPLED WITH SEVERAL LEGAL PROPOSITIONS AND DECISIONS. IT IS ALSO PERTINENT TO NOTE THAT THE AO HAS PASSED A DETAILED ORDER / NOTE SHEET ENTRY (ENCLOSE D HERE WITH THIS ORDER AS ANNEXURE A FOR SAKE OF CLARITY AND BREVI TY) WHILE DEALING AND ADJUDICATION THE ISSUE OF ALLOWABILITY OF THE CLAIM OF THE ASSESSEE FOR I.T.A .NO.-414/DEL/2015 PAGE 89 OF 95 DEDUCTION U/S 80 IA (4) OF THE ACT. WE MAY RESPECTF ULLY TAKE NOTE OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F GABRIEL INDIA LTD. (SUPRA) AND HOLD THAT THE ORDER OF THE AO CANNOT BE HELD AS ERRONEOUS MERELY BECAUSE, ACCORDING TO THE LD. COMMISSIONER, THE ORDER SHOULD HAVE BEEN WRITTEN MORE ELABORATELY IN SO MANY WORDS FOR INVOKING SUPERVISORY PROVISIONS U/S 263 OF THE ACT. THERE MUST BE SOME PRIMA FACIE MATERIAL ON THE RECORD TO SHOW THAT THE ORDER IS UNSUSTAINABLE IN LAW AND THE TAX WHICH WAS LEGALLY ELIGIBLE HAS NOT BEEN IMPOSED. 10.30. THUS OBSERVING AS UNDER IN PARA 111 THE CO-ORDINATE BENCH CONSIDERING THE VARIOUS CASE LAW CITED BEFORE THE B ENCH FINALLY RELYING UPON CIT(A) VS DLF INDIA (2013) 350 ITR 555 (DELHI) DECI DED THE ISSUE IN FAVOUR OF THE ASSESSEE HOLDING THAT THE ASSESSMENT ORDER IS N EITHER ERRONEOUS NOR PREJUDICIAL TO THE INTERESTS OF THE REVENUE THUS IT CANNOT BE REVISED UNDER SECTION 263 OF THE ACT BUT ALSO THAT IN ORDER TO EXERCISE THE POWER U/S 26 3 THERE SHOULD BE AN ELEMENT OF UNSUSTAINABILITY IN THE ORDER OF THE ASSESSING OFFICER WHICH WAS FOUND TO BE MISSING. IN THE SAID BACKGROUND, ADDRESSING THE CLAIM OF THE ASSESSEE ADDRESSED VIDE GROUND NO.5 TO 8 CLUBBED UNDER THE HEADING OTHER INCOME WE FIND THAT APART FROM THE ARGUMENT THAT IDENTICAL CLAIMS HAVE BEEN ALLOWED BY TWO DIFFERENT ASSESSING OFFICERS IN 2009- 10 AND 2010-11 AYS IN THE SCRUTINY ASSESSMENT ORDER PASSED U/S 143(3) WITH DUE ENQUIRY WHEREIN THE CORRECTNESS OF THE BASE YEA R HAS BEEN UPHELD BY THE ITAT IN THE AFORESAID ORDER, IT HAS ALSO BEEN ARGUE D ON BEHALF OF THE ASSESSEE THAT IN THE SET ASIDE PROCEEDINGS THE AO HIMSELF HA D ALLOWED THE SAID CLAIM WHICH FACTUAL ASSERTION HAS NOT BEEN ASSAILED BY TH E REVENUE. RELIANCE BY THE ASSESSEE IT HAS BEEN PLACED EVEN BEFORE US ON DECIS ION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF LOK HOLDING 308 ITR 356 ( BOMBAY) SO AS TO SUBMIT THAT THE BANK INTEREST EARNED IS BUSINESS INCOME FO R AN ASSESSEE ENGAGED IN I.T.A .NO.-414/DEL/2015 PAGE 90 OF 95 CONSTRUCTION BUSINESS. THE BOMBAY HIGH COURT IN TH E SAID DECISION IT WAS SUBMITTED HAD CONSIDERED THE DECISION OF HONBLE AP EX COURT IN THE CASE OF TUTICORIN ALKALI (SUPRA). 10.31. WE FURTHER FIND THAT THE INCOME FROM SALE/LEASE OF PLOTS HAS BEEN IN VERY CATEGORIC TERMS BEEN HELD TO BE ELIGIBLE FOR D EDUCTION UNDER CLAUSE (A) OF EXPLANATION TO SECTION 80IA(4). WE FURTHER NOTE TH AT IN PARA 57 CONSIDERING THE GAMUT OF BUSINESS ACTIVITIES ON THE BASIS OF THE AG REEMENTS AND DOCUMENTS ON RECORD WHICH ADMITTEDLY HAD ACCEPTED THAT THE ONLY AIM AND OBJECT OF THE ASSESSEE WAS DEVELOPING INFRASTRUCTURE FACILITY THE CO-ORDINATE BENCH IN PARA 57 HELD THAT THE BUSINESS ACTIVITIES OF THE ASSESSE E COMPANY FELL WITHIN THE AMBIT OF CLAUSE (A) OF EXPLANATION TO SECTION 80IA( 4). THE SOURCE OF THE BANK INTEREST ADMITTEDLY IS INCOME FROM THE SALE/LEASE OF PLOTS IN BANKS TEMPORARILY TILL THE PAYMENTS ARE DUE; OR TPO FUNDS TEMPORARILY IN BANKS; OR THE FUNDS SOURCED THROUGH THE DEVELOPMENT ACTIVITY BY WAY OF SALE AND DEVELOPMENT OF PLOTS WHICH WERE TO BE UTILIZED FOR DEVELOPING THE INFRASTRUCTURE FACILITY HAVING BEEN TEMPORARILY PARKED IN BANKS AND USED FOR RAISI NG LOANS FROM THE BANKS AGAINST GUARANTEES ETC. THE UTILIZATION OF THESE A MOUNTS ADMITTEDLY IS AGAIN FOR THE VERY SAME SOLE PURPOSE OF INFRASTRUCTURAL F ACILITY. IN THE CIRCUMSTANCES, WE FIND THE INCOME IS NECESSARILY, DIRECTLY AND I NEXTRICABLY LINKED WITH THE ELIGIBLE BUSINESS OF THE ASSESSEE. CONSIDERING THE CHARACTER OF THE SAME, THE FACTS AND CIRCUMSTANCES OF THE SPECIFIC AND PECULIA R NATURE OF ASSESSEES BUSINESS, THE NEXUS IS DIRECT. THE INCOME CAN BE S AID TO BE INSEPARABLY LINKED WITH THE SOLE BUSINESS PURPOSE OF THE ASSESSEE WHIC H IS THE INFRASTRUCTURAL I.T.A .NO.-414/DEL/2015 PAGE 91 OF 95 FACILITY. THE ACCEPTANCE OF THIS FACT BY WAY OF PR ECEDENT IS NOT ONLY EVIDENT FROM THE FACT THAT THE INCOME WAS INCLUDED IN ELIGI BLE BUSINESS BY TWO DIFFERENT ASSESSING OFFICERS IN TWO SEPARATE ASSESSMENT ORDE RS BUT IS ALSO EVIDENT FROM THE ORDER OF THE CO-ORDINATE BENCH IN THE BASE YEAR ITSELF. 10.32. A PERUSAL OF THE REASONING IN THE ASSESSMENT ORDER SHOWS THAT AO HAS HELD THAT INTEREST INCOME IS NOT DERIVED FROM ELIGI BLE BUSINESS. THE ORDER U/S 263 ORDER IT IS SEEN IS THE REASON TO DEVIATE FROM THE VIEW TAKEN IN TWO CONSECUTIVE YEARS AND HENCE PROCEEDED TO DEVIATE FR OM THE PRECEDENT AND DISALLOWED THE CLAIM. AS DISCUSSED EARLIER, THE IS SUE OF WHAT CONSTITUTES THE ELIGIBLE BUSINESS HAS ALREADY BEEN EXAMINED BY THE CO-ORDINATE BENCH. THESE AMOUNTS SHOWN AS INTEREST ADMITTEDLY PROCEEDS FROM THE FUNDS KEPT IN THE BANKS FROM IPO AND DEVELOPMENT PROCEEDS FROM LAND T EMPORARILY AND ARE EXCLUSIVELY APPLIED TO THE SOLE BUSINESS OF DEVELOP ING INFRASTRUCTURAL FACILITY. IN THE PECULIAR FACTS OF THE PRESENT CASE, WE FIND ON FACTS AND CONSIDERING THE PRECEDENT AVAILABLE NOTHING HAS BEEN BROUGHT ON RE CORD TO JUSTIFY DEVIATING FROM THE VIEW TAKEN. THE DECISIONS RELIED UPON OPE RATE ON FACTS THEIR OWN. THUS, WE HOLD THAT INTEREST INCOME IS TO BE TREATED AS BUSINESS INCOME OF THE ASSESSEE. THE MISCELLANEOUS INCOME QUA SALE OF SCR AP ETC. AGAIN BEING DIRECTLY AND INEXTRICABLY LINKED WITH THE DEVELOPMENT OF IN FRASTRUCTURAL FACILITY IT IS TO BE TREATED AS BUSINESS INCOME. SAME IS THE POSITIO N FOR MONEY FORFEITED IN THE PECULIAR FACTS OF THE PRESENT CASE. HOWEVER, ON TH ESE LAST TWO SOURCES OF INCOME SINCE SUPPORTING EVIDENCES ARE NOT AVAILABLE THE ISSUE IS RESTORED FOR VERIFICATION ON FACTS. THE CLAIMS PRINCIPALLY WE FI ND ARE DIRECTLY LINKED TO THE I.T.A .NO.-414/DEL/2015 PAGE 92 OF 95 ONLY BUSINESS ACTIVITY OF THE ASSESSEE IN TERMS OF THE AGREEMENT AND FINDINGS THEREON AND PRINCIPALLY IT DESERVES TO BE ALLOWED. SIMILARLY GAINS FROM FOREIGN EXCHANGE FLUCTUATIONS ARISING DIRECTLY OUT OF THE S OLE BUSINESS ACTIVITY OF THE ASSESSEE WHICH IS THE INFRASTRUCTURAL FACILITY DEVE LOPMENT WE HOLD IS INEXTRICABLY LINKED AND HAVING A DIRECT FIRST DEGRE E NEXUS WITH THE SOLE BUSINESS OF THE ASSESSEE THUS INCOME THEREFROM WE H OLD HAS TO BE ALLOWED AND TREATED AS BUSINESS INCOME. 10.33. CONSIDERING THE ISSUE OF DEPRECIATION WE NOTE THAT FACTS RELATABLE TO IT HAVE ALREADY BEEN ADDRESSED IN THE EARLIER PART OF THIS ORDER. WE FIND THAT CONSISTENTLY IT HAS BEEN CANVASSED THAT DEPRECIATIO N RELATES TO THE ASSETS WHICH HAVE BEEN USED FOR THE BUSINESS AND THE REQUIREMENT RELATABLE TO ITS CLAIM STAND FULFILLED. THE LD.AR HAS ALSO ARGUED THAT W HEN BUSINESS INCOME OF THE ASSESSEE WAS EXEMPTED U/S 80IA(4) OF THE ACT, THEN WHY ASSESSEE WOULD ASSAIL A WRONG DISALLOWANCE OF DEPRECIATION AS IN SUCH AN EVENTUALITY THE DEDUCTION WOULD STAND AUTOMATICALLY ENHANCED AND INFACT APART FROM OPPOSING THE STAND ON PRINCIPLES THERE IS NO PURPOSE TO ASSAIL THE SAM E. WE FIND THAT THE CLAIM OF THE ASSESSEE IS THAT DEPRECIATION CLAIMED IS LIMITE D TO THE ASSETS USED IN THE BUSINESS AND THE OWNERSHIP OF THE ASSETS IS NOT IN DOUBT. THE PAST PRECEDENT OF NO DISALLOWANCE HAVING BEEN MADE ON THE SAID ISS UE IS ALSO CITED. APART FROM THAT THE ADDITIONAL ARGUMENT THAT INCASE DISAL LOWANCE IS SUSTAINED THEN IT GOES TO INFLATE THE INCOME OF THE ASSESSEE AND THE FACT THAT THE ONLY INCOME OF THE ASSESSEE IS THE BUSINESS INCOME WHEREIN DEDUCTI ON IS CLAIMED AND ALLOWABLE THE PURPOSE OF DENYING THE SAME DEPARTING FROM THE PRECEDENT WITH I.T.A .NO.-414/DEL/2015 PAGE 93 OF 95 NO PURPOSE WAS QUESTIONED. WE FIND ON CONSIDERING THE ORDERS OF THE TAX AUTHORITIES AND THE PRECEDENT INCLUDING THE AFORESA ID ORDER OF THE CO-ORDINATE BENCH THE CLAIM OF THE ASSESSEE SUBJECT TO VERIFICA TION ON FACTS DESERVES TO BE ALLOWED. ON A CONSIDERATION OF THE REASONING QUA DE PRECIATION RECORDED BY THE AO AND UPHELD BY THE CIT(A), WE FIND THAT THE ONLY REASONING TAKEN IS THAT SINCE THE PROJECT OF TOLL ROAD CONSTRUCTION WAS IN PROGRESS WHERE FROM NO RECEIPT WAS DECLARED THE PROFIT BEING SOLELY FROM S ALE/LEASE OF PLOTS THE CLAIM WAS DISALLOWED. IN VIEW OF THE CATEGORIC FINDING O F THE CO-ORDINATE BENCH THAT THE BUSINESS HAS COMMENCED THE REASONING ADOPTED CA NNOT BE SUSTAINED. SUBJECT TO VERIFICATION OF OWNERSHIP AND USER PRINC IPLES THE CLAIM HAS TO BE ALLOWED. WE NOTE THAT DISALLOWANCE OF THE SAID EXP ENDITURE ANYWAY WOULD GO TO INFLATE THE INCOME AND RESULT IN AN ENHANCED DEDUCT ION ON A FACT WHICH MAY HAVE ESCAPED THE TAX AUTHORITIES. ACCORDINGLY, WE HOLD THAT PRINCIPALLY DEPRECIATION ON ASSETS USED IN THE DEVELOPING OF IN FRASTRUCTURAL FACILITY AND OWNED BY THE ASSESSEE HAS TO BE ALLOWED. WE RESTO RE THE ISSUE FOR VERIFICATION ON FACTS. 10.34. COMING TO THE NEXT ISSUE ADDRESSED IN THE PRESENT PROCEEDINGS I.E THE DISALLOWANCE MADE AND SUSTAINED U/S 40(A)(IA), WE F IND CONSIDERING THE ARGUMENTS AND FACTS AND THE REASONING ADOPTED BY TH E AO THAT TDS WAS NOT DEDUCTED FOR PAYMENT OF INTEREST U/S 194A AND FOR P AYMENT OF LEASE RENT IN TERM OF SECTION 194I. THE ASSESSEE HAS DISPUTED THA T THERE WAS NO NEED TO DEDUCT ON THE BASIS OF FACTS AND AGREEMENTS SO AS T O ARGUE THAT THERE IS NO INTEREST PAYMENT AS IT IS ACTUALLY EDC I.E. EXTER NAL DEVELOPMENT CHARGES I.T.A .NO.-414/DEL/2015 PAGE 94 OF 95 WHICH ARE TO BE MADE IN A PHASED MANNER SO AS TO CO VER FOR INFLATION OVER TIME; AND RENT IS ALSO ACTUALLY A LEASE EXPENSE AND NOT RENT AS UNDERSTOOD AND IS PART OF CAPITAL ACQUISITION OF LEASE HOLD LAND AND CAPITALIZED. THE LD.AR HAS ALSO RAISED THE ARGUMENT THAT IN TERMS OF THE DECIS ION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS VECTOR SHIPPING SE RVICES [2013] 38 TAXMANN.COM 77 (ALL.) THERE IS NO AMOUNT OF THE SO- CALLED RENT OR INTEREST PAYABLE IN THE YEAR UNDER CONSIDERATION AND THE SAI D DECISION IT HAS BEEN SUBMITTED HAS NOT BEEN UPSET TILL DATE AS SLP AGAIN ST THE SAID DECISION HAS BEEN REJECTED BY THE APEX COURT IN CO NO.8068/2014. IT HAS ALSO BEEN ARGUED THAT APART FROM THE AMOUNT OF RS.10,149/- IT HAS NO T EVEN BEEN CLAIMED AS AN EXPENSE. APART FROM THAT VARIOUS OTHER SUBMISSIONS AS RECORDED IN THE EARLIER PART OF THIS ORDER HAVE BEEN ADVANCED. CONSIDERING THE SAME AND THE ORDERS OF THE TAX AUTHORITIES AND DECISIONS OF THE COURTS REL IED UPON WHICH WE FIND HAVE BEEN RELIED UPON BEFORE THE CIT(A) ALSO AND HAVE N OT BEEN ADDRESSED ARE OF THE VIEW THAT WHERE THE ASSESSEE HAS NOT CLAIMED IT AS AN EXPENSE THE OCCASION TO MAKE AN ADDITION BY WAY OF A DISALLOWANCE DOES NOT ARISE AND IF AT ALL IT HAD TO BE MADE IT COULD BE LIMITED ONLY TO RS.10,149/- WH ICH IS THE AMOUNT CLAIMED AS AN EXPENSE. WE ALSO FIND THAT RELIANCE HAS BEEN PLACED ON THE DECISION OF THE JURISDICTIONAL HIGH COURT TO ARGUE THAT AS FAR AS THE ASSESSEE IS CONCEDED NOTHING WAS PAYABLE IN TERMS OF THE DECISION OF THE JURISDICTIONAL HIGH COURT IN CIT VS VECTOR SHIPPING SERVICES. THE APPLICABI LITY OF WHICH DECISION HAS NOT BEEN DISPUTED BY THE REVENUE. ACCORDINGLY, IN THE CIRCUMSTANCES, WE DIRECT THAT SUBJECT TO VERIFICATION ON FACTS THAT NO AMOUN T IS PAYABLE AS PER ASSESSEES I.T.A .NO.-414/DEL/2015 PAGE 95 OF 95 BOOKS AT THE END OF THE YEAR THE RELIEF IN PRINCIPL E HAS TO BE ALLOWED. WE NOTE THAT THE ARGUMENTS THAT PER SE SECTION 194A AND 194 I ITSELF ARE NOT APPLICABLE IS LEFT OPEN AS THE ISSUE BECOMES ACADEMIC AT THIS STAGE. 10.35. BEFORE PARTING, WE MAKE IT CLEAR THAT THE RATIO OF THE DECISION RELIED UPON BY THE PARTIES HAVE BEEN TAKEN INTO CONSIDERAT ION WHILE ARRIVING AT THE CONCLUSION, EVEN THOUGH THEY HAVE NOT BEEN SPECIFIC ALLY REFERRED TO. THE REASON FOR NOT REFERRING TO THE SAME HAS BEEN ON ACCOUNT O F THE FACT THAT THE ISSUES IN THE PRESENT APPEAL REVOLVES ON FACTS AND CIRCUMSTAN CES PECULIAR TO ITS OWN WHICH IN TERMS OF JUDICIAL PROPRIETY WE FIND LAY DO WN A BINDING PRECEDENT ON THE VERY SAME CHARACTER OF ACTIVITY, FACTS, AGREEME NTS AS TO WHAT CONSTITUTING THE BUSINESS OF THE ASSESSEE IN THE LIGHT OF THE PR OVISIONS. THUS THE ISSUES HAVING BEEN CONSIDERED ON FACTS REFERENCE TO DECISI ONS WHICH OPERATE ON FACTS PECULIAR TO THEIR OWN HAS BEEN REPRODUCED FROM. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06 TH SEPTEMBER 2016. SD/- SD/- (L. P. SAHU) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI