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TMI Blog2015 (6) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... t of disallowance of deduction claimed u/s 80IA(4) without appreciating the material facts that for eligible of deduction u/s 80IA(4), the assessee must fulfill the prime condition that '' The assessee must be owner of the infrastructure facilities'', within the meaning of section 80IA(4) of the Act and assessee had failed to fulfill the said prime condition. 2. The assessee company is engaged in the business of consulting of pollution control and environmental related works, erection and commissioning of plant and also providing service of the treatment and disposal of bio medical waste. The assessee filed its E-return of income on 29.09.2008 showing total income at Rs. 24,32,420/-. The return was processed u/s 143(1) of the I.T. Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AR supported the order of ld. CIT(A). She submitted that the issue is covered in favour of assessee by the order of the Tribunal in ITA Nos. 2902/Ahd/2008 for AY 2005-06 and others dated 30/4/2012. She placed on record a copy of the Tribunal's order in ITA No.2902/Ahd/2008 for AY 2005-06 and others. 6. After considering the rival submissions and going through the material on record, we are of the view that the ld. CIT(A) has rightly deleted the addition. We find that the issue has been decided by the Tribunal in assessee's own case vide its order dated 30/04/2012 with the following observations:- ''7. We have heard both the parties at some length. We have perused the compilation filed, in the light of the provisions of the Act. Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 15/07/2004. The assessee has also entered into an another agreement with Surat Municipal Corporation dated 14/11/2002. We have examined both the agreements. Undisputedly, the assessee has been referred as a "Contractor" in the agreement dated 15/07/2004. However, it was not so in the agreement dated 14/11/2002 executed with Surat Municipal Corporation. Be that as it was, merely mentioning the assessee as "Contractor" the exact nature of the execution of the work do not alter. Rather, this controversy has been resolved by Respected Co-ordinate Bench in the case of Patel Engineering Ltd. 94 ITD 411(Mum.)cited-supra. We are convinced with the argument of the ld.AR that a contractor can also be a developer. In this context, our attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ". One of the clauses [clause-(ii)] prescribes that the plant shall be set up at assessee's own cost at the site. For the purpose of construction of the said facility "local body" has provide land only. Thereafter, clause(iii) says that the said facility shall be operated without any hindrance during the term of lease for thirty years. Only a token Re.1/- is charged as lease amount. We have also noted that vide clause(v) the Collector is authorized to observe the operation and maintenance of the facility. But it does not mean that the Municipal Council has financed the said project. This clause is meant only for supervision of the operation & maintenance. Therefore, according to us, it is a far fetched proposition on the part of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Boot Tender. The assessee has offered and on a token rent of Re.1/- per square meter per annum, the said agreement was entered into for seven years. The assessee is to make the construction on the land as per the approved plans. The assessee has to install necessary equipment and machinery. One of the clauses is very clear that "En-Vision shall bear all the expenses for putting up the said plan". The assessee is entitled to charge for treatment of waste per kg. as fixed by Municipal Corporation from time to time. One of the clauses, thus is clear that the rate shall be as per the quotations agreed upon. On termination of agreement, the project is to be taken over. At this juncture, ld.AR has also mentioned the change in the Statute throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries Ltd. 322 ITR 323(Bom.), wherein scope of the provision of section 80IA have been discussed and held as under:- ''The obligations which had been assumed by the assessee under the terms of the contract were obligations involving the development of an infrastructure facility. Section 80-IA of the Act essentially contemplated a deduction in a situation where an enterprise carried on the business of developing, maintaining and operating an infrastructure facility. A port was defined to be included within the purview of the expression "infrastructure facility". The obligations which the assessee assumed under the terms of the contract were not merely for supply and installation of the cranes, but involved a continuous obligation right from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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