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2013 (5) TMI 300 - AT - Income TaxEntitlement to deduction u/s 80IA(4) - whether the assessee is a developer or mere works contractor - Revenue relied on the amendments brought in by the Finance Act 2007 and 2009 to mention that the activity undertaken by the assessee is akin to works contract and he is not eligible for deduction under section 80IA (4) of the Act - Held that:- according to sub-clause (a), clause (i) of sub section (4) of Section 80-IA the word "it" denotes the enterprise carrying on the business. The word "it" cannot be related to the infrastructure facility, particularly in view of the fact that infrastructure facility includes Rail system, Highway project, Water treatment system, Irrigation project, a Port, an Airport or an Inland port which cannot be owned by any one. Even otherwise, the word "it" is used to denote an enterprise. Therefore, there is no requirement that the assessee should have been the owner of the infrastructure facility. Considering the case of GVPR Engineers Ltd. v. ACIT [2012 (4) TMI 149 - ITAT HYDERABAD], KMC Construction Ltd. v. ACIT [2012 (5) TMI 181 - ITAT HYDERABAD] & Sushee Hi-Tech Constructions Pvt. Ltd. vs. DCIT [2012 (8) TMI 633 - ITAT HYDERABAD] remit the issue back to the file of the AO with a direction to examine the issue afresh and to see whether the assessee carried on the development of infrastructure facilities cumulatively with the activities of design, development, operation, maintenance, financial involvement, defect correction of the contract executed by the assessee itself. In the event, the assessee itself carried on the development of infrastructure facilities/contract along with design, development, operation, maintenance, financial involvement, defect correction of the contract during the warranty period, then such contract to be considered as a development of infrastructure facility executed by the assessee and thereby eligible for deduction u/s. 80IA.
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