TMI Blog2018 (11) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... duction under section 80lA on the profits from all the projects carried out during the year under reference. Hence direct the Assessing Officer to allow deduction under section 80lA as claimed by the assessee. - decided against revenue - ITA Nos. 1521 & 1522/Hyd/2017 - - - Dated:- 24-10-2018 - Smt. P. Madhavi Devi, Judicial Member And Shri S. Rifaur Rahman, Accountant Member For the Assessee : Shri S. Rama Rao For the Revenue : Shri P. Soma Sekhar Reddy ORDER PER P. MADHAVI DEVI, J.M.: Both are revenue appeals for AYs. 2013-14 and 2014-15 against the orders of CIT(A) 12, Hyderabad dated 14/06/2017 and 16/06/2017 respectively. 2. The facts and circumstances in both the AYs are same and the Revenue has raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether on the facts and circumstances of the case, and in law, the Ld. CIT(A) erred in its assumption that the assessee is a developer without any basis and without even referring to the terms of the agreement entered into by the assessee and without even adverting the specific findings of the AO given in assessment order? 6. Whether on the facts and circumstances of the case, and in law, the Ld. CIT(A) erred in allowing the claim u/s.80IA inspite of admitted fact that the project has not been completed and started to operate and thereby not appreciating and ignoring the provisions of section 80IA(2) of the Act which clearly stipulates that the undertaking or the enterprise develops and begins to operate. 7. The appellant craves l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the orders of AO, while the ld. Counsel for the assessee supported the orders of CIT(A) and placed reliance on the decision of the coordinate bench of this Tribunal in assessee s own case for earlier AYs. 6. Having regard to the rival contentions and material on record, we find that the CIT(A), has considered that these projects have been carried on by the assessee in earlier AYs and after considering the issue in detail, has allowed deduction u/s 80IA(4). The CIT(A) has also reproduced the relevant portion of the order of the Tribunal in her order at paras 7 and 7.1. For the sake of ready reference and clarity the said paragraphs are reproduced hereunder: 7.0 I have carefully perused the submissions of the appellant and the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a 45% member, that the other constituent, Maytas, required the appellant to complete its share of 55% of the work and therefore, the appellant completed the entire work. The AR submitted that similarly for the construction of BG Tunnel No. 17, the work had been allotted to Sushee-TTS JV in which the appellant had an 80% share and the work had been completed in its entirety by the appellant. 5.6 The AR submitted that the APCSS Project was allotted by the Government of Andhra Pradesh, Irrigation and CAD Department, that the appellant was the lead partner in Sushee hi Tech-Prasad-NCC-Maytas JV which had been awarded the work, that the entire work was executed by the appellant being a lead partner and that the nature of the work was simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. The claim of deduction u/s 80-lA(4) on the profits derived out of these works was disallowed by the AO on the ground that the works were not awarded to the taxpayer but to the JV and consortium, the ITAT, relying on the decision of ITO Vs. UAN Raju Constructions ITA No.344/Vizag/ 2009), held that there cannot be any relation of contractor and subcontractor between the JV and its constituents. The ITAT further held that deduction u/s 80-IA had to be allowed to the enterprises who are actually carrying on the business of developing or operating and maintaining or developing, maintaining and operating any infrastructure facility, even if the contract was awarded to a JV or Consortium. The Tribunal further held that the consortium or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng employees of the assessee, it would still be possible to argue that an assessee had not executed the work itself. This argument of the Assessing Officer is, therefore, rejected as irrelevant. 5.13 A perusal of the agreements entered into by the appellant/JVs for allotment of the work shows that site was taken over from the government for undertaking the entire development of the infrastructure, that there was a defect liability period for each of the works, that thereafter, the infrastructure was handed over to the government, that the entire material was to be procured by the appellant and the government did not supply any material, that the finances were to be brought in by the appellant apart from providing the performance guaran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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