TMI Blog2015 (6) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... e cranes was, therefore, based on the material on record. The fact that the assessee was also maintaining the cranes was not disputed. The facility was commenced after April, 1995. The assessee was entitled to the special deduction under section 80-IA - Decided in favour of assessee. - ITA No.1593/Ahd/2011 - - - Dated:- 10-6-2015 - Shri Shailendra Kumar Yadav and Shri Anil Chaturvedy, JJ. For the Petitioner : Smt. Sonia Kumar, Sr. DR For the Respondent : Smt. Urvashi Sodhan, AR ORDER PER SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER. This is an appeal filed by the Revenue against the order of ld. CIT(A)-1, Surat, dated 14.3.2011 wherein the following effective ground has been raised :- 1. On the facts and circumstance of the case and in law, the ld. CIT(A) has erred in deleting the addition of ₹ 66,53,384/- made on account 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 fulfil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 80IA was subject to a change on several occasions in the past, however for the year under consideration,i.e.A.Y.2005-06, the section substituted by the Finance Act, 2001 w.e.f. 1/4/2002 is applicable. This section prescribes that in respect of profits and gains from an Industrial Undertaking engaged in infrastructure development; a deduction of an amount equal to 100% of the profits shall be allowed. Section 80IA(4) prescribes that an Enterprise carrying on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility shall qualify for the deduction. This subsection says that the Enterprise has to enter into an agreement with the Government, either Central or State, for developing or operating and maintenance or developing, operating and maintenance of a new infrastructure facility and that it has been starte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and following the view expressed by the Hon ble Court as also considering the nature of the work executed by this assessee, we are not inclined to agree with the AO that the assessee has acted merely as a contractor , rather, we hereby hold that the assessee has acted as a developer . Here-in-below are few other reasons hereby assigned by us. 7.1. As per the terms of the agreement, the assessee has to set up biomedical waste treatment facility . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificates are concerned, we have examined that the assessee has raised bills and the TDS certificates are issued by the Corporation for bio-medical waste treatment (charges) and for the services rendered to various hospitals and the amount of bill represented payment attributable to waste treatment and not in respect of any construction or development. We have also seen the invoices and the description therein was also bio-medical waste treatment facility . Because of this reason, we are not inclined to accept the allegation of the Revenue Department that since on TDS certificate the assessee has been mentioned as Contractor , therefore the assessee has not acted as a Developer . These TDS certificates evidently were not in respect of the developing or maintaining or operating or construction of the said infrastructure facility but only in respect of the charges for treatment of waste. 8.1. As far as the balance-sheets are concerned, it has been demonstrated that year-wise the assessee has shown the said infrastructure as fixed assets. The assessee has shown the investment in its books of account and we have been informed that because of the said reason the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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