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2011 (10) TMI 641 - HC - Income TaxBenefit of Section 80IA - grant the approval under Section 10(23G) - Held that:- A reading of Section 10(23G) of the Income Tax Act shows that where an assessee makes an application in respect of the income by way of dividend or by way of long term funding in any enterprise or undertaking engaged in the business referred to under Section 80IA (4) or (3) or Section 80IB(10) approved by the Central Government, the same shall be exempted in the computation of income. Explanation (1) to Section 10(23G) defines "infrastructure capital company and infrastructure capital fund". As far as infrastructure capital company is concerned, it is defined to mean company, which had made investment by way of acquiring shares or providing long term finance to an enterprise wholly engaged in the business referred to in this clause. It is no doubt true that Section 10(23G), inserted with effect from 01.04.1997, was subsequently omitted from the Statute. As the law then stood, given the definition of an eligible business under the provisions of Section 80IA and the fact that the assessee has taken on lease the windmill, which is infrastructure facility, I have no hesitation in allowing the Writ Petition, thereby quashing the order passed by the Central Board of Direct Taxes. Touching on the scope of Section 84 as it originally stood, later on substituted as Section 80J before its repeal, the Central Board of Direct Taxes, vide F.No15/5/63-IT (AI) dated 13.12.1963, pointed out that "the benefit of Section 84 of the Income Tax Act 1961 (now Section 80J) attaches to the undertaking and not to the owner thereof. The successor will be entitled for the unexpired period of five years provided the undertaking is taken over as a running concern". As far as the present case is concerned, the reasoning of the Board went on the aspect of lease, a fact which does not stand in the way of the assessee claiming approval under Section 10(23G) or the relief under Sec 80IA(4).
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