TMI Blog2019 (4) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... d authority for availing the benefit under Section 80IA. There is no dispute before us that the Assessee was duly recognised as transferee or assignee of the principal contractor M/s.ST-CMS Company Private Limited and was duly so recognised by the Railways to operate and maintain the said railway sidings at Vadalur and Uthangalmangalam Railway Stations. The findings of fact with regard to the said position recorded by the learned Tribunal are, therefore, unassailable and that clearly attracted the first Proviso to Section 80IA(4) - Decided in favour of the Assessee and against the Revenue. - Tax Case Appeal Nos.741, 1266 of 2009 and 162 of 2015 - - - Dated:- 6-3-2019 - Dr. Justice Vineet Kothari And Mr. Justice C.V. Karthikeyan For the Appellant : M/s.T.R.Senthilkumar K.G.Usharani Sr. Standing Counsel For the Respondent : Mr.R.Vijayaraghavan for M/s. Subbaraya Aiyar Padmanabhan COMMON JUDGMENT (Delivered by DR.VINEET KOTHARI,J.) The Revenue has filed these appeals under Section 260-A of the Income Tax Act, 1961, raising the following substantial questions of law arising from the orders of the learned Tribunal dated 27th July 2007; 31st July 2007 and 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (No.2) Act, 2009 with retrospective effect from 1.4.2000? 3.Whether under the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the assessee is eligible for deduction under Section 80IA, though the assessee did not fulfil the condition laid down in Section 80 IA(4) of having a contract with any Government/authority referred to in that section? 4.Whether under the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the assessee is eligible for deduction under Section 80IA, the assessee did not satisfy proviso to Section 80IA(4) inasmuch as there is no transfer of infrastructure facility? 2. Section 80IA of the Act is quoted below for ready reference: S.80-IA. Deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc. (1) Where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to in sub-section (4) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Section 80IA(4) of the Act, especially, the Provisos thereto, permits even the transferee of an infrastructure facility to avail such deduction under Section 80IA of the Act and the Tribunal has rightly allowed the said benefit to the Assessee invoking the first Proviso to Section 80IA(4) of the Act. 5. The relevant findings of the learned Tribunal in this regard are quoted below for ready reference: 8. On a careful consideration of the rival submissions advanced by the parties and from a careful perusal of the orders of the authorities below and the documents placed on record including the precedents relied upon, we find that the Department had rejected the assessee's claim for relief u/s 80IA on the ground that the assessee has not satisfied the requirement of subsec.(4) to sec.80IA. According to the authorities below the assessee had not entered into an agreement with the Central or State Government, local authority or any statutory body for developing or operating and maintaining or developing, operating and maintaining a new infrastructure facility. For rejecting the assessee's claim another reason adopted by the Department is that operation and maintena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we also derive support from the decision of the Hyderabad Bench of the Tribunal in the case of Ocean Sparkle Ltd. v. DCIT, 99 TTJ (Hyd) 582, wherein under similar set of facts the Tribunal concluded as under: Proviso to sec.80IA(4) does not require that there should be a direct agreement between the transferee enterprise and the specified authority, the assessee-company engaged in operation and maintenance of port infrastructure which was transferred by the developer to the assess in accordance with the agreement with the specified authorities was eligible for deduction under sec.80-IA. Under the above circumstances, we set aside the orders of the authorities below and direct the AO to allow the claim of the assessee for deduction under sec.80IA of the Act. 9. In the result, appeal of the assessee stands allowed. 6. We have heard the learned counsel for the Revenue and the Assessee. 7. The provisions of Section 80IA(4) of the Act, including its Provisos and Explanations to the extent relevant are also quoted below for ready reference: (4) This section applies to (i) any enterprise carrying on the business of (i) developing or (ii) operating and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisos to Section 80IA(4), it is clear that the Legislature intended to extend the said benefit under Section 80IA of the Act to an enterprise involved in (i) developing or; (ii) operating and maintaining or; (iii) developing, operating and maintaining any infrastructure facility. The term infrastructure facility has been defined in the Explanation and the same includes a toll road, a bridge or a rail system, a highway project, etc. These are, obviously, big infrastructure facilities for which the enterprise in question should enter into a contract with the Central Government or State Government or Local Authority. However, the Proviso intends to extend the benefit of the said deduction under Section 80IA of the Act even to a transferee or a contractor who is approved and recognised by the concerned authority and undertakes the work of the said development of infrastructure facility or only operating or maintaining the same. The Proviso to sub-section (4) stipulates that subject to the fulfillment of conditions, the transferee will be entitled to the said benefit, as if the transfer in question had not taken place. It has been found by the Assessing Authority himself, in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owned by Samalpatti Power Corporation Private Limited (SPCL). On these facts, the Court held that the Assessee was not entitled to deduction under Section 80IA of the Act. We do not find any parity of facts of the said case with the facts available before us. The power generating companies are entitled to deduction under Section 80IA of the Act in different sub clauses viz., under Section 80IA(4)(iv) of the Act. Where there is no such Proviso, as is available in clause (i) of Section 80IA(4) of the Act, which deals with deduction to enterprise involved in developing, operating and maintaining the infrastructure facilities. Obviously, if the Assessee is getting only fees for the maintenance of certain power generating plant, as was the case before the Co-ordinate Bench of this Court in Covanta case (supra), he may not be entitled to such deduction, but the fact situation before us is entirely different and, therefore, we do not find any support from the said case cited by the learned counsel for the Revenue. 11. We are, therefore, of the considered opinion that there is no merit in these appeals filed by the Revenue and the questions of law framed above deserve to be answered in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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