TMI Blog2012 (2) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... (4). The issue is thus decided in favour of the assessee. - ITA No.433/PN/2007 - - - Dated:- 6-2-2012 - SHRI I.C.SUDHIR, JM AND SHRI D. KARUNAKARA RAO, AM For the Appellant : Shri Sunil Pathak Nikhil Pathak For the Respondent : Ms. Ann Kapthuama, DR ORDER Per I.C. Sudhir, JM The assessee has questioned first appellate order on several grounds involving the issue as to whether learned CIT (A) has erred in upholding the denial of deduction of ₹ 1,52,76,714/- claimed u/s 80-IA(4) in respect of income derived by the assessee from development of eligible infrastructural facilities. 2. The relevant facts are that the AO denied the claimed deduction u/s 80-IA(4) of the Act to the assessee, on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the action of the AO. 3. The matter went to the Tribunal and the Tribunal following the decision of Third Member Bench in the case of M/s. B.T. Patil Sons Belgam Construction (P) Ltd. vs. ACIT, 126 TTJ (Mum) (TM) 577, held (vide its order dated 24.2.2010 in ITA No.433/PN/2007) that the assessee is not entitled to the claimed deduction. Against the said order of the Tribunal, the assessee preferred appeal before the Hon ble Jurisdictional Bombay High Court. The Hon ble Bombay High Court vide its order dated 30.8.2011 in ITA No.4610/PN/2010 (copy supplied) has been pleased to quash the order dated 24.2.2010 of the Tribunal and set aside the matter to the file of the Tribunal for fresh decision in accordance with law. 4. In complian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct by the Finance (2) Act, 2009 with retrospective effect from 1.4.2000. The learned DR pointed out that the said Explanation has been substituted for the removal of doubts declaring that nothing contend in sec.80-IA shall apply in relation to a business referred to in sub-section (4) which is in the nature of works awarded by any person (including Central or State Government) and executed by the undertaking or enterprise referred to in sub-section (1). 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 issue in accordance with law. On earlier occasion the Tribunal had decided the issue in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. 80-IA was amended by the Finance Act of 2001, the section applied to an enterprise carrying on the business of (i) developing; or (ii) operating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 80-IA(4) of the Act set the matter beyond any controversy by stipulating that the three conditions for development, operation and maintenance were not intended to be cumulative in nature. 9. We find from the decision of Hon ble Bombay High Court in afo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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