ACIT, CHENNAI V. B.Dhanasekaran, CHENNAI

ITA 620/CHNY/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96346 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH IRS
• Assessee Lawyers: N DEVANATHAN
• Section: 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , ! . '# , $ %& BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER ./ ITA NOS .620/MDS/2013 AND ITA NO.360/MD/2015 $ ' )' / ASSESSMENT YEARS: 2009-2010 AND 2010-2011 THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE III, CHENNAI. ( /APPELLANT) VS SHRI.B. DHANASEKARAN, R-3, TNHB SHOPPING COMPLEX, SHASTRI NAGAR, 1 ST AVENUE, ADYAR, CHENNAI 600 020. [PAN: ADXPD 7168E] ( /RESPONDENT) *+ , - / APPELLANT BY : SHRI. A.V.SREEKANTH, IRS, JCIT. ./*+ , - / RESPONDENT BY : SHRI.N. DEVANATHAN, ADVOCATE , 0 /DATE OF HEARING : 16.09.2015 12) , 0 /DATE OF PRONOUNCEMENT : 06.11.2015 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE TWO APPEALS BY REVENUE ARE DIRE CTED AGAINST THE DIFFERENT ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-VIII & V, CHENNAI FOR THE ABOVE ASSESSMENT YEARS. I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 2 -: 2. THE ONLY ISSUE IN THESE TWO APPEALS IS WITH REGARD TO ALLOWABILITY OF DEDUCTION U/S.80IA(4) OF THE ACT. SINCE THE ISS UE IN THESE APPEALS ARE COMMON IN NATURE, THESE APPEALS ARE CLUBBED, HE ARD TOGETHER, AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE. 3. THE FACTS NARRATED IN THE CASE OF ITA NO.620/MDS/20 13 FOR THE ASSESSMENT YEAR 2009-10 IS CONSIDERED FOR ADJUDICAT ION. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 WAS FILED ON A TOTAL INCOME OF F28,83,467/-. THE CASE WAS SELECTED THROUGH CASS FOR SCRUTINY. N OTICES U/S.143(2) AND 142(1) WERE ISSUED TO THE ASSESSEE. THE ASSESS ING OFFICER COMPLETED THE ASSESSMENT U/S.143(3) ON 27.12.2011 A FTER MAKING THE DISALLOWANCE OF SECTION 80-IA WHICH WAS CLAIMED AS EXEMPTION OF F18,45,450/- TO THE RETURNED INCOME. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCO ME TAX (APPEALS). 5. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED T HAT THE ASSESSEE IS NOT A WORKS CONTRACTOR AND A DEVELOPER AS STIPULATED U/S.80IA(4) OF THE ACT. THE SECTION 80-IA(4) APPLI ES TO ANY ENTERPRISE, WHICH CARRIES ON THE BUSINESS OF (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING, OPERATING AND MAIN TAINING ANY I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 3 -: INFRASTRUCTURE FACILITIES, WHICH FULFILL ALL THE AB OVE CONDITIONS. FROM THE ASSESSMENT YEAR 2000-01, DEDUCTION IS AVAILABLE IF THE ASSESSEE IS CARRYING OUT THE BUSINESS OF ANYONE OF THE ABOVE M ENTIONED THREE TYPES OF ACTIVITIES. WHEN AN ASSESSEE IS ONLY DEVEL OPING AN INFRASTRUCTURE FACILITY PROJECT AND IS NOT MAINTAIN ING NOR OPERATING IT, SUCH AN ASSESSEE WILL BE PAID FOR THE COST INCURRED BY IT. IF THE INFRASTRUCTURAL FACILITY, AFTER ITS DEVELOPMENT IS TRANSFERRED TO THE GOVERNMENT, THE COST WOULD BE PAID BY THE GOVERNMENT. MERELY BECAUSE THE TRANSFEREE HAD PAID FOR THE DEVELOPMENT OF INFRASTRUCTURE FACILITY CARRIED OUT BY THE ASSESSEE, IT CANNOT BE SAID THAT THE ASSESSEE DID NOT DEVELOP THE INFRASTRUCTURE FACILITY. IF THE INTERPRETATION DONE BY THE ASSESSING OFFICER IS ACCEPTED, NO ENTERPRISE CA RRYING ON THE BUSINESS OF ONLY DEVELOPING THE INFRASTRUCTURE FACI LITY WOULD BE ENTITLED TO DEDUCTION U/S. 80 IA(4), WHICH IS NOT THE INTENT ION OF THE LAW. AN ENTERPRISE WHO DEVELOP THE INFRASTRUCTURE FACILITY IS NOT PAID BY THE GOVERNMENT, THE ENTIRE COST OF DEVELOPMENT WOULD BE A LOSS IN THE HANDS OF THE DEVELOPER AS HE IS NOT OPERATING THE I NFRASTRUCTURE FACILITY. THE LEGISLATURE HAS PROVIDED THAT THE INC OME OF THE DEVELOPER OF THE INFRASTRUCTURE PROJECT WOULD BE ELIGIBLE FOR DEDUCTION, IT PRESUPPOSES THAT THERE CAN BE BECOME TO DEVELOPER I .E. TO A PERSON WHO IS CARRYING ON THE ACTIVITY OF ONLY DEVELOPMENT INFRASTRUCTURE I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 4 -: FACILITY. A DEVELOPER WOULD HAVE INCOME ONLY IF HE IS PAID FOR THE DEVELOPMENT OF INFRASTRUCTURE FACILITY, THAT HE IS HAVING THE RIQHT /AUTHORIZATION TO OPERATE THE INFRASTRUCTURE FACILI TY AND TO COLLECT TOLL THERE FROM, HAS NO OTHER SOURCES OF RECOUPMENT OF H IS COST OF DEVELOPMENT. AFTER TAKING A CONTRACT FROM THE GOVE RNMENT, IF THE ASSESSEE DEVELOPS INFRASTRUCTURE FACILITIES, THE AS SESSEE WOULD BE REGARDED AS 'DEVELOPER' AND NOT AS A 'WORKS CONTRAC TOR'. THE ASSESSEE FIRM HAS CARRIED ON ENTIRE CONSTRUCTION/DEVELOPMENT OF THE INFRASTRUCTURE FACILITIES AND SATISFY ALL THE COND ITIONS OF SECTIONS 80 IA(4)(I)(A) OF THE ACT. IT IS FACT THAT THE ASSESSE E HAS TAKEN DEVELOPMENT OF INFRASTRUCTURE FACILITY AGREEMENT FR OM THE STATE GOVERNMENT/LOCAL AUTHORITY. A CONTRACTOR WHO DEVELO PS THE INFRASTRUCTURE FACILITY BECOMES A DEVELOPER TO CLAI M EXEMPTION U/S 80IA(4). THE BOMBAY BENCH OF THE TRIBUNAL WHILE DE CIDING THE CASE OF PATEL ENGINEERING LIMITED VS. DCIT 94 ITD 411 (MUMB AI) HELD THAT A CIVIL CONTRACTOR, HAVING EXECUTED A PART OF CONTRAC TS OF IRRIGATION AND WATER SUPPLY ON 'BUILD AND TRANSFER BASIS AND HAN DED OVER THEM OVER TO CONTRACTEE GOVERNMENTS WAS ELIGIBLE FOR DEDUCTIO N U/S.80IA(4). SIMILARLY, TRIBUNAL CHENNAI BENCH HAS TAKEN A SIMIL AR VIEW IN ITA NO.554/MDS/ 2010 IN THE CASE OF EAST COST CONSTRUCT IONS & INDUSTRIES LIMITED VS. DCIT VIDE ORDER DATED 13.09.2011. THE D EDUCTION U/S 80 LA I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 5 -: (4) IS AVAILABLE TO AN ENTERPRISE WHICH DEVELOPS OR OPERATES AND MAINTAINS, OR DEVELOPS MAINTAINS AND OPERATES THAT INFRASTRUCTURE FACILITY AFTER 01.04.1995. A 'DEVELOPER' IS A SPECI FIC KIND OF WORKS CONTRACTOR TO BE ELIGIBLE FOR DEDUCTION U/S.80IA (4 ) WHO FULFILLS ALL THE CONDITIONS VIZ., IF THE ASSESSEE DEVELOPS THE INFRA STRUCTURE FACILITY IF IT OPERATES THE INFRASTRUCTURE FACILITY AND IF IT MAINTAINS THE INFRASTRUCTURE FACILITY, THE DEDUCTION IS AVAILABLE TO AN ENTERPRI SE WHO DEVELOPS OR OPERATES AND ALSO MAINTAINS, OR DEVELOPS, MAINTAINS AND OPERATES THAT INFRASTRUCTURE FACILITY. THE HANDING OVER OF THE I NFRASTRUCTURE FACILITY/PROJECT BY THE DEVELOPER TO THE GOVERNMENT OR AUTHORITY TAKES PLACE AFTER RECOUPMENT OF THE DEVELOPER'S COST WHET HER IT BE 'BT' OR 'BOT' OR 'BOOT', BECAUSE IN 'BOT' AND 'BOOT' THIS R ECOUPMENT IS BY WAY OF COLLECTION OF TOLL THEREFROM WHEREAS IN 'BT' IT IS BY WAY OF PERIODICAL PAYMENT BY THE GOVERNMENT/AUTHORITY. THE LAND INVOLVED IN INFRASTRUCTURE FACILITY/ PROJECT ALWAYS BELONGS TO THE GOVERNMENT/LOCAL AUTHORITY ETC., WHETHER IT BE THE CASE OF 'BOT' OR 'BOOT' AND IT IS HANDED OVER BY THE GOVERNMENT/AUTHORITY TO THE DEVE LOPER FOR DEVELOPMENT OF INFRASTRUCTURE FACILITY/PROJECT. THE SAME HAS BEEN THE POSITION IN THE INSTANT CASE AS WELL. SO DEDUCTION U/S 80 IA(4) IS AVAILABLE TO THE ASSESSEE WHO HAS UNDERTAKEN WORK O F A MERE DEVELOPER . I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 6 -: 4.1 IN THIS REGARD, THE DECISION OF ACIT VS. BHARAT UDYAG LIMITED 118 ITD 336 AND PATEL ENGINEERING LTD., VS.DCIT 84 TTJ 646 ARE RELEVANT. AS PER CBDT CIRCULAR NO.4/2010(F.NO.178/1 4/210 ITA-I) DATED 18.05.2010, WIDENING OF EXISTING ROADS CONSTI TUTES CREATION OF NEW INFRASTRUCTURE FACILITY FOR THE PURPOSE OF SECT ION 80 IA(4)(I). THE ASSESSEE IS NOT REQUIRED TO DEVELOP THE ENTIRE ROAD IN ORDER TO QUALIFY FOR DEDUCTION U/S 8OLA AS HAS BEEN HELD BY THE HON' BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ABG HEAVY INDUSTRIES LIMITED 332 ITR 323 . THE NEWLY INSERTED EXPLANATION 2 TO SECTION 80 L A VIDE FINANCE ACT 2007, NOT APPLY TO A WORK CONTRACT ENTERED INTO BY THE OV ERNMENT AND THE ENTERPRISE. IT APPLIES TO A WORK CONTRACT E NTERED INTO BETWEEN THE ENTERPRISE AND OTHER PARTY 'THE SUB CONTRACTOR' . THE AMENDMENT AIMS AT DENYING DEDUCTION TO THE SUB CONTRACTOR WHO EXECUTES A WORK CONTRACT WITH THE ENTERPRISE AS HELD BY THE ITAT JA IPUR 'A' BENCH IN THE CASE OF OM METAL INFRAPROJECTS LTD. VS. CIT-I, JAIPUR ITA NO.722 & 723/JP/2008 DATED 31.12.2008 . THE RELIANCE BY THE COMMISSIONER OF INCOME TAX (APPEALS) ON THE DECISION OF ITAT, CHENN AI BENCH IN THE CASE OF ACIT VS. INDWELL LIANINGS PVT. LTD. 313 ITR (AT) 11 8, HAS BEEN ENLARGED ITS FINDINGS BY THE ITAT MUMBAI F BENCH IN ITS DECISION RENDERED IN THE CASE OF ACIT VS. BHARATH UDYAG LTD . BY HOLDING THAT SUCH A DEDUCTION IS ONLY TO BE DENIED TO A SUB CON TRACTOR AND NOT TO A I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 7 -: MAIN CONTRACTOR. SIMILAR VIEW HAS BEEN TAKEN BY THE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. SMT.C.RAJINI IN WHICH THE DIFFERENCE BETWEEN WORKS CONTRACTOR AND A DEVELOPER HAS BEEN EXAMINED IN DETAIL. THE MAIN THRUST OF THE DECISION IS THAT A DEVELOPER NEED NOT BE THE OWNER OF THE LAND ON WHICH DEVELOPM ENT IS MADE. THE INCENTIVE PROVISIONS ALLOWED TO THE ASSESSEE, THE C ONSTRUCTION SHOULD BE LIBERALLY GIVEN AS HELD BY THE SUPREME COURT RENDERED IN THE CASE OF BAJAJ TEMPO LTD. VS. CIT 196 ITR 198 . THUS, WHEN THE ASSESSEE MAKES INVESTMENT AND HIMSELF EXECUTES DEVELOPMENT W ORK AND CARRIES OUT CIVIL WORK, HE IS ELIGIBLE FOR TAX BENEFIT U/S. 80-IA OF THE ACT. THEREFORE, THE ASSESSEE IS ENTITLED TO DEDUCTION U/ S. 80 IA(4) OF THE ACT AND THE COMMISSIONER OF INCOME TAX (APPEALS) D IRECTED THE ASSESSING OFFICER TO DELETE THE ADDITION MADE AT F1 8,45,450/- DISALLOWED U/S 80 IA(4). THE LD. AUTHORISED REPRESE NTATIVE FOR ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER WHILE COMPUTING INCOME OF THE ASSESSEE HAS WRONGLY DISALLOWED THE DEDUCTIO N U/S 80LA. THE AO HAS PROCEEDED TO THE COMPUTE THE INCOME FROM THE TOTAL INCOME ADMITTED BY THE ASSESSEE BEFORE CLAIMING THE DEDUC TION U/S 80LA AND AGAIN DISALLOWED THE DEDUCTION U/S 80LA AND THUS TH E ADDITION HAS BEEN MADE TWICE IN THE ORDER RESULTING IN EXCESS DI SALLOWANCE TO THE EXTENT OF F18,45,450/-. THE COMMISSIONER OF INCOME TAX (APPEALS) I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 8 -: DIRECTED THE ASSESSING OFFICER TO VERIFY THE COMPU TATION OF INCOME OF THE ASSESSEE AND IF THE CONTENTION OF LD. AUTHORISE D REPRESENTATIVE FOR ASSESSEE FOUND TO BE CORRECT, THE ASSESSING OFFICE R MAY RE-COMPUTE THE TAXABLE INCOME AND DELETE THE EXCESS ADDITION M ADE IN THE COMPUTATION OF INCOME. THUS, THE COMMISSIONER OF IN COME TAX (APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE. AGAIN ST THIS, THE REVENUE IS IN APPEAL BEFORE US. 6. THE MAIN CONTENTION OF THE DEPARTMENTAL REPRESENTAT IVE IS THAT THE ASSESSEE IS A CONTRACTOR AND NOT DEVELOPER AND THE ASSESSEE DOES NOT DEVELOP ANY INFRASTRUCTURE FACILITY BY INVESTIN G OWN FUNDS. RATHER IT EXECUTED THE WORK CONTRACTS AWARDED BY THE CLIEN TS INVOLVED IN CONSTRUCTION OF INFRASTRUCTURE RELATED PROJECTS. ME RELY BY EXECUTING THE CONTRACTS RELATING TO INFRASTRUCTURE PROJECTS ASSES SEE CANNOT BE TREATED AS DEVELOPER OF INFRASTRUCTURE. 6.1 FURTHER ACCORDING TO THE LD. DEPARTMENTAL REPRESEN TATIVE THE PROVISIONS OF 80IA(4) APPLIES TO ANY ENTERPRISE WH ICH IS OWNED BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM OR A CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONSTITUTED UNDER ANY CEN TRAL OR STATE ACT. IN THIS CASE, THE ASSESSEE IS AN INDIVIDUAL HAVING PROPRIETARY CONCERN ENGAGED IN THE BUSINESS OF CIVIL CONTRACT WORK IN T HE RELEVANT FINANCIAL I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 9 -: YEAR AND HENCE IT IS ALSO HIT BY THE ABOVE CONDITIO N LAID DOWN IN SEC.80IA (4)(I)(A) OF THE ACT. 7. ON THE OTHER HAND, THE LD. AUTHORISED REPRESENTATIV E FOR ASSESSEE SUBMITTED THAT THE MAIN ISSUE INVOLVED IN THE APPEALS BEFORE THIS TRIBUNAL IS ALLOWABILITY OF DEDUCTION UNDER SE CTION 80IA(4)(I) OF THE ACT. THIS ISSUE IS COMMON FOR ALL THE ASSESSMENT YE ARS UNDER APPEAL. HE DEALT WITH THE INTRODUCTION AND CHANGES MADE BY THE LEGISLATURE TO SECTION 80IA(4) OF THE ACT TILL DATE. THE SAID SECT ION IS MEANT FOR ALLOWING DEDUCTION IN RESPECT OF PROFITS AND GAINS FROM INDUSTRIAL UNDERTAKINGS OR ENTERPRISES ENGAGED IN INFRASTRUCTU RE DEVELOPMENT. THE ASSESSEE CLAIMED DEDUCTION AS IT IS ENGAGED IN DEVELOPMENT OF INFRASTRUCTURE AND AS IT SATISFIED ALL THE CONDITIO NS MENTIONED THEREIN. THE PROVISIONS OF SECTION 80IA(4)(I) AS INTRODUCED BY THE BY THE FINANCE ACT, 1999 AND AS AMENDED FROM TIME TO TIME ARE APPLICABLE TO THE ASSESSEE. 7.1 HE SUBMITTED THAT FROM A READING OF THE SECTION, I T IS CLEAR THAT THE DEDUCTION IS ALLOWABLE TO: (A) ANY COMPANY INCORPORATED; I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 10 -: (B) WHICH ENTERED INTO AGREEMENT WITH GOVERNMENT; O R ANY GOVERNMENT BODY; AND UNDERTAKES DEVELOPMENT OF INFR ASTRUCTURE FACILITY . THE PURPOSE FOR WHICH THE SAID SECTION WAS AMENDED WITH EFFECT FROM THE ASSESSMENT YEAR 2000-01, CAN BE TRACED TO A BRO CHURE ISSUED BY THE GOVERNMENT OF INDIA, MINISTRY OF ROADS, TRANSPO RT AND HIGH WAYS IN AUGUST, 2001. HE HAS TAKEN SUPPORT FROM THE AFOR ESAID BROCHURE. IN THE SAID BROCHURE, THE GOVERNMENT OF INDIA EXTRACTE D SOME OF THE DECISIONS TAKEN BY IT TO BRING IN THE DEVELOPMENT O F INFRASTRUCTURE FACILITY IN THE COUNTRY. HE POINTED OUT THAT THE GO VERNMENT PROVIDED THE BENEFITS TO THE INDIAN ENTREPRENEURS BY PROVIDI NG CONTRACT PACKAGES TO THE PRIVATE ENTERPRISES. WHILE PROVIDIN G BENEFITS, THE GOVERNMENT SPECIFICALLY SPECIFIED CERTAIN GRANTS ON LY TO BOT SCHEMES. FOR THE OTHER SCHEMES ALL THE OTHER BENEFITS ARE MA DE AVAILABLE. THE CLASSIFICATION PROVIDED IN THE BROCHURE CLEARLY IND ICATES THAT THE SCHEMES OF PACKAGES ARE MEANT FOR ALL THE ENTERPRIS ES WHETHER ENGAGED IN THE DEVELOPMENT OF INFRASTRUCTURE OR UND ER BOT. HENCE, IT CLEARLY INDICATES THAT THE GOVERNMENT OF INDIA WITH A VIEW TO DEVELOP THE INFRASTRUCTURE FACILITY PROVIDED VARIOUS INCENT IVES TO THE INDIAN CONCERNS FOR DEVELOPMENT OF SUCH INFRASTRUCTURE FAC ILITY. WITH A VIEW TO PROVIDE THE EXEMPTIONS TO THE ENTREPRENEURS CARRYIN G ON SUCH ACTIVITY, THE LEGISLATURE INTRODUCED THE AMENDMENT TO SECTION 80IA(4) IN THE I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 11 -: FINANCE BILL 1999 TO BE EFFECTIVE FOR AND FROM THE ASSESSMENT YEARS 2000-01 AND ONWARDS TO FULFIL THE OBJECTIVE OF THE PRIME MINISTER. THE PROVISIONS OF SEC. 80IA(4) ARE MADE APPLICABLE TO ' ANY ENTERPRISE CARRYING ON THE BUSINESS OF (I) DEVELOPING, (II) MA INTAINING AND OPERATING OR (III) DEVELOPING, MAINTAINING AND OPER ATING OR DEVELOPMENT, MAINTENANCE AND OPERATING ANY INFRASTR UCTURE FACILITY'. BECAUSE OF THE AMENDMENT, THE ENTERPR ISES WHICH ARE ENGAGED IN ANY OF THE THREE ACTIVITIES BECAME ELIGI BLE FOR DEDUCTION COMPARED TO THE EARLIER PROVISION, WHICH WAS MADE A PPLICABLE ONLY TO SUCH ENTERPRISES ENGAGED IN ALL THE THREE ACTIVITIE S CUMULATIVELY. THE PROVISIONS OF SUB SECTION (4A) WHICH WERE EARLIER A PPLICABLE TO THE ENTREPRENEURS ENGAGED IN DEVELOPING, MAINTAINING AN D OPERATING WAS DELETED WITH EFFECT FROM 01-04-2000, BUT IS INCORPO RATED IN SECTION 80IA(4) OF THE ACT. IT IS CLEAR THAT THE ENTERPRISE S WHICH WERE DEVELOPING, OPERATING AND MAINTAINING AND DEVELOPIN G, OPERATING AND MAINTAINING WERE ONLY ELIGIBLE FOR SUCH DEDUCTION U P TO THE ASSESSMENT YEAR 1999-2000 BY VIRTUE OF THE PROVISIONS OF SECTI ON 80IA(4A). WITH THE INTRODUCTION OF THE NEW SECTION 80IA(4) AMENDIN G THE SUB SECTION (4) OF SECTION 80IA AND DELETING THE SUB SECTION (4 A), THE LEGISLATURE PROVIDED DEDUCTION FOR ANY ENTERPRISE CARRYING ON T HE BUSINESS EITHER DEVELOPING OR OPERATING AND MAINTAINING OR DEVELOPM ENT, OPERATING I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 12 -: AND MAINTAINING INSTEAD ALLOWING DEDUCTION ONLY TO THE ENTERPRISES ENGAGED IN ACTIVITY COVERING ALL THE THREE ACTIVITI ES TOGETHER . 7.2 ACCORDING TO LD. AUTHORISED REPRESENTATIVE FOR ASS ESSEE THE PROVISION EXTENDED TO AN ENTERPRISE CARRYING ON ANY ONE OF THE THREE ACTIVITIES. IT MAKES THE MATTERS MORE CLEAR THAT TH E SUB SECTION (4) IS AMENDED AGAIN BY THE FINANCE ACT, 2001 WITH EFFECT FROM 01-04- 2002.THE LEGISLATURE SPECIFICALLY ADDED THE CONJUNC TION 'OR' BETWEEN THE WORDS (DEVELOPING), (OPERATING AND MAINTAINING) (DEVELOPING, OPERATING AND MAINTAINING). IT MAKES IT CLEAR THAT THE PROVISION WOULD APPLY TO ANY ENTERPRISE CARRYING ON THE BUSINESS OF DEVELOPING OR CARRYING ON THE BUSINESS OF OPERATING AND MAINTAINI NG OR CARRYING ON THE BUSINESS OF DEVELOPMENT, OPERATING AND MAINTAIN ING THE INFRASTRUCTURE FACILITY. THEREFORE, THERE IS NO REQ UIREMENT THAT ALL THE THREE ACTIVITIES SHOULD HAVE BEEN CARRIED ON BY A S INGLE ENTERPRISE SO AS TO ENABLE IT TO CLAIM DEDUCTION UNDER SECTION 80 IA(4) OF THE ACT. THIS VIEW IS ALSO SUPPORTED BY THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF CIT V. ABG HEAVY INDUSTRIES LTD. [20 10] 322 ITR 323/ 189 TAXMAN 54 . IT MENTIONED CLEARLY THAT THE THREE CONDITIONS DEVELOPMENT, OPERATION AND MAINTENANCE WERE NOT INT ENDED TO BE CUMULATIVE IN NATURE. THEREFORE, ANY ASSESSEE WHO H AS UNDERTAKEN ANY ONE OF THE ACTIVITY IS ELIGIBLE FOR DEDUCTION U NDER SECTION 80IA(4) OF I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 13 -: THE ACT. THE MUMBAI BENCH OF THE ITAT IN THE CASE O F ASSTT. CIT V. BHARAT UDYOG LTD. [2009] 118 ITD 336/[2008] 24 SOT 412(MUM.) ALSO HELD THAT AFTER THE AMENDMENT OF SECTION 80IA(4) IT IS APPLICABLE TO ENTERPRISES WHO ARE ENGAGED IN DEVELOPING INFRASTRU CTURAL FACILITY. EARLIER, THE MUMBAI BENCH IN THE CASE OF PATEL ENGG. LTD., V. DY. CIT [2005] 94 ITD 411 ALSO OBSERVED THAT THE CIVIL CONTRACTORS WHO ARE DEVELOPING THE INFRASTRUCTURE FACILITY IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. IT IS MENTIONED THAT TH E STATUTORY PROVISIONS AS CONTAINED IN 80IA(4) PROVIDES FOR DEVELOPMENT OF INFRASTRUCTURE FACILITY. THEREFORE, IT IS CLEAR THAT TO BE ELIGIBL E FOR DEDUCTION UNDER SECTION 80IA(4), AN ENTERPRISE NEED NOT NECESSARILY BE ENGAGED IN ALL THE THREE ACTIVITIES OF DEVELOPING, MAINTAINING AND OPERATING THE INFRASTRUCTURE. IT IS ENOUGH IF IT IS CARRYING ON T HE BUSINESS OF EITHER DEVELOPING OR MAINTAINING AND OPERATING OR DEVELOPI NG, MAINTAINING AND OPERATING THE INFRASTRUCTURE FACILITY. 7.3. IT WAS SUBMITTED BY COUNSEL FOR ASSESSEE T HAT, AS PER THE AGREEMENT, THE POSSESSION OF THE SITE IS HANDED OVE R TO THE ASSESSEE BY THE GOVERNMENT. THE ASSESSEE TAKES POSSESSION AN D ACCESS TO THE PROPERTY AND THEREAFTER IT SHALL BE THE RESPONSIBIL ITY OF THE ASSESSEE TO DEVELOP THE SAID AREA INTO MORE USEFUL INFRASTRUCTU RE FACILITY. IN THE I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 14 -: PROCESS, EVERY ACT REQUIRED (WHETHER MENTIONED IN T HE AGREEMENT OR NOT) IN CONVERTING THE AREA INTO MORE USEFUL ONE SH ALL BE THAT OF THE ASSESSEE. THE ASSESSEE HAS TO UNDERTAKE THE RESPONS IBILITY OF MAINTENANCE OF THE EXISTING TRAFFIC AND THERE SHOUL D NOT BE INCONVENIENCE TO THE REGULAR TRAFFIC. THE DEVELOPED AREA AFTER COMPLETION OF THE DEVELOPMENT OF INFRASTRUCTURE IS HANDED OVER TO THE GOVERNMENT. AFTER HANDING OVER, THE ASSESSEE SHALL MAINTAIN THE INFRASTRUCTURE FOR A PERIOD OF 48 MONTHS AND ANY DE FECTS ARE TO BE RECTIFIED AND IT IS CLEAR THAT THE ASSESSEE IS CONV ERTING THE AREA ENTRUSTED TO IT INTO MORE USEFUL AND MORE PROFITABL E AREA AND HANDING OVER THE DEVELOPED ONE TO THE GOVERNMENT. THEREFORE , THE ACTIVITY OF THE ASSESSEE IS 'TO DEVELOP' AN EXISTING TWO LANE R OAD INTO FOUR LANE ROAD THEREBY MAKING THE ROAD MORE USEFUL AND PROFIT ABLE. THE LD. AUTHORISED REPRESENTATIVE FOR ASSESSEE FURTHER SUB MITTED THAT AS PER THE EXPLANATION INTRODUCED BY THE FINANCE ACT, 2007 , ANY ASSESSEE WHO ENTERED INTO A CONTRACT WITH THE ENTERPRISE MEN TIONED IN SUB- SECTION (4) WOULD NOT BE ELIGIBLE FOR DEDUCTION. IT CLEARLY INDICATES THAT ANY SUB-CONTRACTOR WHO UNDERTAKES A PART OF THE WOR K FROM THE UNDERTAKING WHICH WAS ALLOTTED THE WORK WOULD NOT B E ELIGIBLE FOR SUCH DEDUCTION. THE SAID EXPLANATION HAS NO APPLICATION TO THE ASSESSEE. THE ASSESSEE DID NOT CLAIM SUCH DEDUCTION OR ANY IN COME PERTAINING TO I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 15 -: A SUB CONTRACT WORK UNDERTAKEN FROM THE ENTERPRISES REFERRED TO IN SECTION 80IA(4). THEREFORE, THE EXPLANATION INTRODU CED BY THE FINANCE ACT, 2007 SHALL NOT AFFECT THE CLAIM MADE BY THE AS SESSEE. THE EXPLANATION INTRODUCED BY THE FINANCE ACT, 2009 ADD ED THAT THOSE ENTERPRISES UNDERTAKING SIMPLE WORKS CONTRACTS BY E NTERING INTO AGREEMENTS WITH THE ENTERPRISES OR WITH THE GOVERNM ENT OR GOVERNMENT ORGANIZATIONS. AS PER THIS EXPLANATION, ANY ENTERPRISES WHICH ENTER INTO A MERE WORKS CONTRACT EITHER WITH ANY OTHER ENTERPRISE OR GOVERNMENT OR GOVERNMENT CORPORATION SHALL NOT BE ELIGIBLE FOR THE DEDUCTION. IT IS MADE CLEAR THAT A NY ENTERPRISE, WHICH ENTERED INTO DEVELOPMENT OF INFRASTRUCTURE, WOULD B E ELIGIBLE FOR DEDUCTION AND NOT THOSE ENTERPRISES, WHICH ENTER IN TO CONTRACT FOR EXECUTING WORKS CONTRACTS. THE ASSESSEE HEREIN ENTE RED INTO AGREEMENT FOR DEVELOPMENT OF INFRASTRUCTURE FACILIT Y AND NOT FOR A MERE WORKS CONTRACT. IT IS SUBMITTED THAT THIS EXPLANATI ON HAS TO BE READ IN THE CONTEXT OF THE APPLICATION OF THE MAIN PROVISIO NS OF SECTION 80IA(4) OF THE ACT. FROM A READING OF SECTION 80IA(4)(I) OF THE ACT, IT IS CLEAR THAT THE DEDUCTION IS AVAILABLE FOR ANY COMPANY WHI CH ENTERS INTO AGREEMENT WITH ANY GOVERNMENT OR GOVERNMENT BODY. I T IS CLEAR THAT THE DEDUCTION IS AVAILABLE NOT FOR ANY PERSON BUT F OR THOSE COMPANIES ENTERING INTO AGREEMENT WITH THE GOVERNMENT OR OTHE R GOVERNMENT I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 16 -: BODIES/CORPORATIONS. IT IS ALSO MADE CLEAR THAT THE DEDUCTION IS AVAILABLE FOR THE CORPORATE BODIES ENTERING INTO AG REEMENT WITH THE GOVERNMENT ORGANIZATIONS. THEREFORE, THE MAIN PROVI SION MAKES IT CLEAR THAT THE DEDUCTION IS AVAILABLE TO COMPANIES ENTERING INTO AGREEMENT WITH GOVERNMENT BODIES OR GOVERNMENT. THE REFORE, IT IS NOT CORRECT TO READ THE EXPLANATION TO MEAN THAT THE GO VERNMENT BODY IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA OF THE AC T AND THE COMPANY ENTERING INTO AGREEMENT WITH SUCH GOVERNMENT BODY I S NOT ELIGIBLE FOR DEDUCTION. 7.4 IN SO FAR AS THE MEANING OF THE WORD 'WORKS CON TRACT' IS CONCERNED, THE LD. AR PLACED RELIANCE ON THE JUDGEM ENT OF BOMBAY HIGH COURT IN THE CASE OF CIT V. GLENMARK PHARMACEUTICALS LTD., [2010] 324 ITR 199/ 191 TAXMAN 455(BOM .) WHEREIN HELD THAT IN A WORKS CONTRACT, THE CONTRACTEE WOULD PROVIDE THE MATERIAL AND ALL OTHER REQUIREMENTS IN THE PROCESS OF MANUFACTURE/PRODUCTI ON. THE CONTRACTOR MERELY CARRIES ON THE WORK WITH THE MATERIAL SUPPLI ED BY THE CONTRACTEE AND THE KNOWLEDGE SUPPLIED BY THE CONTRA CTEE. FURTHER, IN A WORKS CONTRACT, THE RISK IS UNDERTAKEN BY THE CONTR ACTEE AND IN CASE OF DEVELOPMENT CONTRACT, THE CONTRACTOR UNDERTAKES THE RISKS INVOLVED. IN THE CASE OF THE ASSESSEE, IT WAS ALLOTTED A PREMISE S AND THE POSSESSION I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 17 -: OF THE PREMISES WAS HANDED OVER TO THE ASSESSEE. IT WAS ASKED BY THE GOVERNMENT TO DEVELOP THE SAID AREA INTO AN INFRAST RUCTURE FACILITY. ALL THE ACTIVITIES NECESSARY IN THE PROCESS OF DEVELOPM ENT AND THE LOSSES SUFFERED IN THE PROCESS, THE MATERIAL TO BE USED IN CLUDING THE EXPERTISE SHALL BE OF THE ASSESSEE. THE MAINTENANCE OF THE EX ISTING FACILITY DURING THE PERIOD OF DEVELOPMENT ALSO SHALL BE OF T HE ASSESSEE. THEREFORE, THE ASSESSEE IS A DEVELOPER AND NOT A WO RKS CONTRACTOR. HE RELIED ON THE CIRCULAR NO. 4 OF 2010 DATED 18-05-20 10, WHICH IS AFTER INTRODUCTION OF THE EXPLANATION BY THE FINANCE ACT, 2009, FOR THE PROPOSITION THAT WIDENING OF EXISTING ROAD IS AN IN FRASTRUCTURE FACILITY AND ANY ENTERPRISE CARRYING ON THE ACTIVITY OF WIDE NING OF AN EXISTING ROAD WOULD BE ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA(4) OF THE ACT. 7.5 THE LD. AUTHORISED REPRESENTATIVE FOR ASSESSEE SUBMITTED THAT AS PER CIRCULAR NO.4/2010, DATED 18.5.2010 WHEREIN THE CENTRAL BOARD OF DIRECT TAXES HAS CLARIFIED THAT WIDENING OF EXIS TING ROADS CONSTITUTES CREATION OF NEW INFRASTRUCTURE FACILITY FOR THE PUR POSES OF SECTION 80IA(4)(I) OF THE ACT. 7.6 THE LD. AUTHORISED REPRESENTATIVE FOR ASSESSEE ALSO RELIED ON THE FOLLOWING DECISIONS. I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 18 -: (I) CTI VS. RADHE DEVELOPERS, 341 ITR 403 (GUJ) (II) PATEL ENGINEERING LTD. VS. DCIT, 84 TTJ 646 (MUM) (III) ACIT VS. BHARAT UDYOG LTD, 123 TTJ 689 (MUM ) (IV) CIT VS ABG HEAVY INDUSTRIES LTD, 322 ITR 3 23(BOM) (V) THE ORDER OF THE TRIBUNAL IN THE CASE OF RAM KY INFRASTRUCTURE LTD VS. DCIT IN ITA NO.472/HYD/09 DATED 17.07.2013 8. WE HAVE CONSIDERED THE ELABORATE SUBMISSIONS MADE BY BOTH THE PARTIES AND ALSO PERUSED THE MATERIALS AVA ILABLE ON RECORD. WE HAVE ALSO GONE THROUGH ALL THE CASE LAWS CITED B Y BOTH THE PARTIES. WE FIND THAT THE PROVISIONS OF SECTION 80IA(4) OF T HE ACT WHEN INTRODUCED AFRESH BY THE FINANCE ACT, 1999, THE PRO VISIONS UNDER SECTION 80IA(4A) OF THE ACT WERE DELETED FROM THE A CT. THE DEDUCTION AVAILABLE FOR ANY ENTERPRISE EARLIER UNDER SECTION 80IA(4A) ARE ALSO MADE AVAILABLE UNDER SECTION 80IA(4) ITSELF. FURTHE R, THE VERY FACT THAT THE LEGISLATURE MENTIONED THE WORDS (I) 'DEVELOPING ' OR (II) 'OPERATING AND MAINTAINING' OR (III) 'DEVELOPING, OPERATING AN D MAINTAINING' CLEARLY INDICATES THAT ANY ENTERPRISE WHICH CARRIED ON ANY OF THESE THREE ACTIVITIES WOULD BECOME ELIGIBLE FOR DEDUCTIO N. THEREFORE, THERE IS NO AMBIGUITY IN THE INCOME-TAX ACT. WE FIND THAT WH ERE AN ASSESSEE INCURS EXPENDITURE ON ITS OWN FOR PURCHASE OF MATER IALS AND TOWARDS LABOUR CHARGES AND ITSELF EXECUTES THE DEVELOPMENT WORK I.E., CARRIES I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 19 -: OUT THE CIVIL CONSTRUCTION WORK, IT WILL BE ELIGIBL E FOR TAX BENEFIT UNDER SECTION 80 IA OF THE ACT. IN CONTRAST TO THIS, A AS SESSEE, WHO ENTERS INTO A CONTRACT WITH ANOTHER PERSON INCLUDING GOVER NMENT OR AN UNDERTAKING OR ENTERPRISE REFERRED TO IN SECTION 80 IA OF THE ACT, FOR EXECUTING WORKS CONTRACT, WILL NOT BE ELIGIBLE FOR THE TAX BENEFIT UNDER SECTION 80 IA OF THE ACT. AT THIS STAGE, WE DEEM I T APPROPRIATE TO REPRODUCE HEREUNDER SECTION 80IA OF THE ACT PROVI DING DEDUCTION IN RESPECT OF PROFITS AND GAINS FROM INDUSTRIAL UNDERT AKING OR ENTERPRISES ENGAGED IN INFRASTRUCTURE DEVELOPMENT WHICH READS A S FOLLOWS:- 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) (S UCH BUSINESS BEING HEREINAFTER REFERRED TO AS THE ELIGIBLE BUSIN ESS), THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVIS IONS OF THIS SECTION, BE ALLOWED, IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, A DEDUCTION OF AN AMOUNT EQUAL TO HUNDRED PER CENT OF THE PROFITS AND GAINS DERIVED FROM SUCH BUSINESS FOR TEN CONSECUTIVE ASSESSMENT YEARS. (2) .. (2A) (3) .. (4) THIS SECTION APPLIES TO (I) ANY ENTERPRISE CARRYING ON THE BUSINESS OF (I) DEVELOPING OR (II) OPERATING AND MAINTAINING OR (II I) DEVELOPING, OPERATING AND MAINTAINING ANY INFRASTRUCTURE FACILITY WHICH FULFILS ALL THE FOLLO WING CONDITIONS, NAMELY: (A) IT IS OWNED BY A COMPANY REGISTERED IN INDIA O R BY A CONSORTIUM OF SUCH COMPANIES OR BY AN AUTHORITY OR A BOARD OR A CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONSTITUTED UNDER ANY CENTRAL OR STATE ACT; (B) IT HAS ENTERED INTO AN AGREEMENT WITH THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORITY OR ANY OTHER STATUTORY BODY FOR (I) DEVELOPING OR (II) OPERATING AND MAINTAINING I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 20 -: OR (III) DEVELOPING, OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY; (C) IT HAS STARTED OR STARTS OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR AFTER THE 1ST DAY OF APRIL, 1995: PROVIDED THAT WHERE AN INFRASTRUCTURE FACILITY IS T RANSFERRED ON OR AFTER THE 1ST DAY OF APRIL, 1999 BY AN ENTERPRIS E WHICH DEVELOPED SUCH INFRASTRUCTURE FACILITY (HEREAFTER R EFERRED TO IN THIS SECTION AS THE TRANSFEROR ENTERPRISE) TO ANOTH ER ENTERPRISE (HEREAFTER IN THIS SECTION REFERRED TO AS THE TRANS FEREE ENTERPRISE) FOR THE PURPOSE OF OPERATING AND MAINTA INING THE INFRASTRUCTURE FACILITY ON ITS BEHALF IN ACCORDANCE WITH THE AGREEMENT WITH THE CENTRAL GOVERNMENT, STATE GOVERN MENT, LOCAL AUTHORITY OR STATUTORY BODY, THE PROVISIONS O F THIS SECTION SHALL APPLY TO THE TRANSFEREE ENTERPRISE AS IF IT W ERE THE ENTERPRISE TO WHICH THIS CLAUSE APPLIES AND THE DED UCTION FROM PROFITS AND GAINS WOULD BE AVAILABLE TO SUCH TRANSF EREE ENTERPRISE FOR THE UNEXPIRED PERIOD DURING WHICH TH E TRANSFEROR ENTERPRISE WOULD HAVE BEEN ENTITLED TO THE DEDUCTIO N, IF THE TRANSFER HAD NOT TAKEN PLACE. EXPLANATION.FOR THE PURPOSES OF THIS CLAUSE, INFR ASTRUCTURE FACILITY MEANS (A) A ROAD INCLUDING TOLL ROAD, A BRIDGE OR A RAIL SYSTEM; (B) A HIGHWAY PROJECT INCLUDING HOUSING OR OTHER AC TIVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT; (C) A WATER SUPPLY PROJECT, WATER TREATMENT SYSTEM, IRRIGATION PROJECT, SANITATION AND SEWERAGE SYSTEM OR SOLID WA STE MANAGEMENT SYSTEM; (D) A PORT, AIRPORT, INLAND WATERWAY, INLAND PORT O R NAVIGATIONAL CHANNEL IN THE SEA; (5) (13) . *EXPLANATION. - FOR THE REMOVAL OF DOUBTS, IT IS HE REBY DECLARED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY IN RELATION TO A BUSINESS REFERRED TO IN SUB-SECTION ( 4) WHICH IS IN THE NATURE OF A WORKS CONTRACT AWARDED BY ANY PERSO N (INCLUDING THE CENTRAL OR STATE GOVERNMENT) AND EXE CUTED BY THE UNDERTAKING OR ENTERPRISE REFERRED TO IN SUB-SE CTION (1). *IT INTRODUCED BY FINANCE (NO.2) ACT, 2009 W..E.F. 1.4.2000 A PERUSAL OF THE STATUTORY PROVISIONS MAKES IT CLEA R THAT IT DOES NOT PROVIDE A BLANKET DEDUCTION I.E. IN ORDER TO SU CCEED IN A CLAIM OF DEDUCTION; THE CONCERNED ASSESSEE HAS TO DERIVE PRO FITS AND GAINS I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 21 -: FROM ANY BUSINESS REFERRED TO IN SUB-SECTION 4. FUR THER, SUB-SECTION 4 PRESCRIBES APPLICABILITY OF CLAUSE I.E. THE CASE IN WHICH THE DEDUCTION PROVISION WOULD APPLY. IT IS IN THIS SUB-SECTION TH AT THE LEGISLATURE HAS ENUMERATED THE NATURE OF THE UNDERTAKINGS, THEIR AC TIVITIES IN CONTRIBUTING RAISING OF INFRASTRUCTURE. FURTHER, IN THE EXPLANATION ATTACHED TO THE SUB-SECTION, THE LEGISLATURE HAS AL SO ENTRUSTED THE MEANING OF THE INFRASTRUCTURE FACILITIES. IN OUR OP INION, AN ASSESSEE WHILE CLAIMING DEDUCTION HAS TO SATISFY ALL CONDITI ONS IN SUB-SECTION 4(1)(A) OR (B) OR (C). IT IS MANDATORY FOR THE ASSE SSEE TO FIRST SATISFY SUB-SECTION CLAUSE I(A), THEN (B) THEN (C), THEN PR OVISO AND SO ON. IN CASE THE CONCERNED ASSESSEE FAILS IN ANY ONE OF THE CLAUSES, EVEN IF IT SATISFIES THE OTHER PART OF THE SUB-SECTION, THE CL AIM HAS TO BE REJECTED. NOW WE PROCEED TO DECIDE AS TO WHETHER THE ASSESSEE PROPRIETORSHIP CONCERN SATISFIES SUB-SECTION 4(I) OF THE ACT OR NOT. FOR THE SAID SUB- SECTION, A READING OF THE PROVISION MAKES IT UNAMBI GUOUS THAT THE CONCERNED CLAIMANT HAS TO BE AN ENTERPRISES CARRYIN G ON THE BUSINESS OF DEVELOPING OR OPERATING AND MAINTAINING OR DEVEL OPING, OPERATING AND MAINTAINING ANY INFRASTRUCTURE FACILITY AND IT HAS TO BE OWNED BY A CONSORTIUM OF SUCH COMPANY OR BY AN AUTHORITY OR A BOARD OR A CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONSTI TUTED UNDER ANY CENTRAL OR STATE ACT. ADMITTEDLY, THE ASSESSEE IS A PROPRIETORSHIP. AS I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 22 -: WE NOTICE FROM THE RELEVANT STATUTORY PROVISION, TH E ENTERPRISE IN THE NATURE OF PROPRIETORSHIP NOWHERE FINDS MENTION IN T HE MANDATE OF THE LEGISLATURE. ALTHOUGH IT WAS EMPHASIZED FROM THE DE FINITION OF THE WORD BODY IN THE LAW LEXICON WHICH READS AS FOLLOWS: STATUTORY DEFINITION, INCLUDES PARTNERSHIP, FINANC IAL SERVICES AND MARKETS ACT, 2000 (C.8), S. 367(2) (ST ROUD, 6 TH EDN., 2000, SUPPLEMENT, 2003). IT ALSO INCLUDES GROUP OF BODIES, PARTNERSHIP OF EN TERPRISE CARD ON BY ONE OR MORE PERSONS OR BODIES AND A BODY WHICH IS SUBSTANTIALLY THE SAME AT OR SUCCESSOR, TO, ANOTHER BODY, GOVERNMENT RESOURCES AND ACCOUNTS ACT, 2000 (C.20), S. 17(7) (STROUD, 6 TH EDN., 2000, SUPPLEMENT, 2003). THE MAIN-CENTRAL OR PRINCIPAL PART [ART. 110 (2), C ONST.]; PHYSICAL OR MATERIAL FRAME OF A MAN OR ANIMAL; GANG OF THIEVES ETC. 8.1 IN OUR OPINION, THE SAID DEFINITION BEING A GEN ERAL PREPOSITION DOES NOT HELP THE ASSESSEES CASE. IT IS A TRITE PR EPOSITION OF LAW WHILE INTERPRETING A STATUTE AND MORE SO A FISCAL STATUE, NEITHER THE JUDICIAL FORUM CONCERNED CAN INSERT ITS OWN WORDS NOR IT CAN TAKE AWAY ANY FROM THE STATUTE. AS IT IS SEEN, THE EARLIER PORTIO N OF THE STATUTORY PROVISION PRESCRIBES A COMPANY REGISTERED IN INDIA OR A CONSORTIUM OF SUCH COMPANIES OR BY AN AUTHORITY OR CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONSTITUTED AND SO ON. IN OUR VIEW, THE LATTER PART IS LIABLE TO BE READ IN THE LIGHT OF THE EARLIER PART BY FOLLOWING THE PRINCIPLES OF EJUSDEM GENERIS . I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 23 -: 8.2 FURTHER, IT WAS NOTICED THAT IN THE CASE OF M/S. RAMKY INFRASTRUCTURE LTD VS. DCIT, IN ITA NO.472/HYD/2009 & OTHERS THE HYDERABAD BENCH OF THE TRIBUNAL VIDE ORDER DATED 17 .07.2013 OBSERVED IN HIS ORDER IN PARA 14 FOLLOWING THE EARL IER ORDER OF THE TRIBUNAL IN THE CASE OF NCC-ECCI(JV) VS. ITO IN ITA NOS. 124 & 125/HYD/2009 VIDE ORDER DATED 17.06.2013 INTER ALIA THAT WORD OWNED IN SUB-CLAUSE (A) ON CLAUSE (1) OF SUB-SECTION (4) OF SECTION 80IA OF THE ACT REFERRED TO THE ENTERPRISE. IN OTHER WORDS, TH E ENTERPRISES CARRYING ON DEVELOPMENT OF THE INFRASTRUCTURE FACILITIES SHO ULD BE OWNED BY A COMPANY OR CONSORTIUM OF COMPANIES. THE INFRASTRUC TURE FACILITIES NEED NOT BE OWNED BY A COMPANY. IT WAS HELD THAT TH E WORD OWNERSHIP IS ATTRIBUTABLE ONLY TO THE ENTERPRISE CARRYING ON THE BUSINESS WHICH WOULD MEAN THAT ONLY COMPANIES ARE E LIGIBLE FOR DEDUCTION UNDER SECTION 80IA(4) AND NOT ANY OTHER P ERSON LIKE NEW HUF FIRM ETC. HENCE, WE HOLD THAT THE ASSESSEE FAILS TO SATISFY T HE APPLICABILITY CLAUSE OF THE PROVISION AS ENVISAGED UNDER SECTION 80IA(4)(I) OF THE ACT. 9. SO FAR AS CATENA OF THE JUDGMENTS SUBMITTED BY THE AR OF THE ASSESSEE, WE NOTICE THAT THEY ONLY PERTAIN TO SECTI ON 80IA(4)(I)(B) I.E. REGARDING THE ISSUE OF CONTRACTOR VIZ-A-VIS DEVELOP ER. HENCE, WE DO NOT DEEM IT APPROPRIATE TO DECIDE ON THE SAID ISSUE SIN CE THE ASSESSEE DOES NOT FULFILL THE CONDITION ENUMERATED IN THE FI RST PART OF THE I.T.A.NOS.620/MDS/13 AND 360/MDS/2015 :- 24 -: STATUTORY PROVISION. 10. CONSEQUENTLY, IN THE LIGHT OF OUR ABOVE DISCUSSIONS , THE APPEALS OF THE REVENUE IN ITA NO.620/MDS/2013 AND ITA NO.36 0/MDS/2015 ARE ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE 6TH DAY OF NOVEMB ER, 2015 AT CHENNAI. SD/- SD/- ( ! . '# ) (DUVVURU R.L. REDDY) / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER /CHENNAI. 3 /DATED:06.11.2015. KV 4 , .$056 76)0 /COPY TO: 1. *+/ APPELLANT 2. ./*+ / RESPONDENT 3. 90 ( )/CIT(A) 4. 90 /CIT 5. 6:; .$0$ /DR 6. ;#' < /GF.