TMI Blog2015 (12) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... d maintain is also eligible for claim of deduction u/s 80IA( 4) of the Act. The Hon’ble High Court has been pleased to observe that qua such a person the condition stated in subsection (c) of sec.80IA( 4)(i) has to be read harmoniously with the main provision under which deduction is available to an assessee, who develops; or operates and maintain; or develops, maintains and operates an infrastructural facility. In other words a developer who only develops (i.e., constructs) an infrastructural facility is not envisaged to operate and maintain such facility, cannot be accepted to fulfil the condition in clause (c) of sec. 80IA( 4) since it would be an impossibility. Therefore, in view of the construction placed by the Hon’ble Bombay High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for A.Y. 2003-04 in case of the assessee upheld the action of the AO. The Tribunal vide ITA No.968/PN/2007 order dated 08- 12-2010 following the order of the Tribunal in assessee s own case for A.Y. 2003-04 upheld the order of the CIT(A) and dismissed the appeal filed by the assessee. 4. Similarly for Assessment Year 2005-06 the AO disallowed claim of deduction of ₹ 1,46,85, 364/- u/s.80IA(4) in the order passed u/s.143(3) dated 25-04-2007 which was upheld by the CIT(A) vide order dated 16-11-2007. The Tribunal vide order dated 25-11-2010 following the order for A.Y. 2003-04 in assessee s own case vide ITA No.433/PN/2007 order dated 24-02-2010 upheld the order of the CIT(A) and dismissed the appeal filed by the assessee. 5. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties are kept open to be urged before the Tribunal. 5. The appeal is accordingly disposed of with no order as to costs. (Identical order has been passed by the Hon ble High court for A.Y. 2005-06) 6. We have considered the rival arguments made by both the sides. We find after the order for A.Y. 2003-04 was set aside by the Hon ble Bombay High Court to the file of the Tribunal, the Tribunal vide ITA No.433/PN/2007 order dated 06-02-2012 decided the issue of allowability of deduction u/s.80IA(4) in favour of the assessee by observing as under : 7. We find that the Hon ble Jurisdictional High Court in the appeal preferred by the assessee has been pleased to restore the matter to the file of the Tribunal for fresh decision on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of sec. 80IA. On this basis, it was urged that since the assessee was not operating and maintaining the facility, he did not fulfil the condition. This submission is fallacious both in fact and in law. As a matter of fact, the Tribunal has entered a finding that the assessee was operating the facility and this finding has been confirmed earlier in this judgment. That the assessee was maintaining the facility is not in dispute. The facility was commenced after 1st April, 1995. Therefore, the requirement was met in fact. Moreover, as a matter of law, what the condition essentially means is that the infrastructure facility should have been operational after 1st April, 1995. After sec. 80IA was amended by the Finance Act of 2001, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es would be governed by the same principle. The subsequent amendment of sec. 80IA( 4A) of the Act to clarify that the provision would apply to an enterprise engaged in (i) developing; or (ii) operating and maintaining; or (iii) developing, operating and maintaining an infrastructure facility was reflective of a position which was always construed to hold the field. Before the amendment that was brought about by Parliament by Finance Act of 2001, we have already noted that the consistent line of circulars of the Board postulated the same position. The amendment made by Parliament to sec. 80IA( 4) of the Act set the matter beyond any controversy by stipulating that the three conditions for development, operation and maintenance were not inten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the decision of the Hon ble Bombay High Court on the issue in the case of CIT vs. ABG Heavy Industries Ltd Ors (supra) decide the matter in favour of the assessee with this finding that assessee is eligible to claim the deduction in question u/s 80IA (4). The issue is thus decided in favour of the assessee. The related grounds are thus allowed with this direction to the AO to allow the claimed deduction to the assessee. 10. Consequently the appeal is allowed. 7. Respectfully following the decision of the Tribunal in assessee s own case for A.Y. 2003-04 and in absence of any contrary material brought to our notice against the order of the Tribunal in assessee s own case for A.Y. 2003-04 the claim of deduction u/s.80IA(4) amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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