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2019 (12) TMI 138

..... ure facilities need not be owned by a company. It was held that the word ‘ownership’ is attributable only to the enterprise carrying on the business which would mean that only companies are eligible for deduction under section 80IA(4) and not any other person like new HUF Firm etc. Hence, we hold that the assessee fails to satisfy the applicability clause of the provision as envisaged under section 80IA(4)(i) of the “Act”. So far as catena of the judgments submitted assessee, we notice that they only pertain to section 80IA(4)(i)(b) i.e. regarding the issue of contractor viz-a-vis developer. Hence, we do not deem it appropriate to decide on the said issue since the assessee does not fulfill the condition enumerated in the first part of the statutory provision. Disallowance u/s 40A(3) - HELD THAT:- The provisions of section 40A(3) of the Act restrict payment or aggregate of payment made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, exceeding ₹.20,000/-. Moreover, in the case of N. Mohammed Ali v. ITO [2016 (1) TMI 941 - MADRAS HIGH COURT] the Hon’ble Jurisdictional High Court has held .....

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..... sion of the Tribunal in assessee s own case for the assessment year 2009-10 and 2010-2011, the ld. CIT(A) confirmed the disallowance claimed under section 80IA of the Act. 3. On being aggrieved, the assessee is in appeal before the Tribunal. At the time of hearing, the ld. DR has submitted that the issue involved in this appeal is squarely covered against the assessee by the decision of the Tribunal and pleaded that the same should be followed. 4. On the other hand, the ld. Counsel for the assessee could not controvert the submissions of the ld. DR. 5. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below including case law. Similar ground on identical facts was subject matter in appeal in assessee s own case for the assessment year in I.T.A. Nos. 620/Mds/2013 & 360/Mds/2015 vide order dated 06.11.2015, wherein, the Tribunal has observed as under: 8. We have considered the elaborate submissions made by both the parties and also perused the materials available on record. We have also gone through all the case laws cited by both the parties. We find that the provisions of Section 80IA(4) of the Act when introduced .....

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..... egistered in India or by a consortium of such companies or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act; (b) it has entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility; (c) it has started or starts operating and maintaining the infrastructure facility on or after the 1st day of April, 1995: Provided that where an infrastructure facility is transferred on or after the 1st day of April, 1999 by an enterprise which developed such infrastructure facility (hereafter referred to in this section as the transferor enterprise) to another enterprise (hereafter in this section referred to as the transferee enterprise) for the purpose of operating and maintaining the infrastructure facility on its behalf in accordance with the agreement with the Central Government, State Government, local authority or statutory body, the provisions of this section shall apply to the transferee enterprise as if it were the enterprise to w .....

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..... he Act or not. For the said subsection, a reading of the provision makes it unambiguous that the concerned claimant has to be an enterprises carrying on the business of developing or operating and maintaining or developing, operating and maintaining any infrastructure facility and it has to be owned by a consortium of such company or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act. Admittedly, the assessee is a proprietorship. As we notice from the relevant statutory provision, the enterprise in the nature of proprietorship nowhere finds mention in the mandate of the legislature. Although it was emphasized from the definition of the word body in the Law Lexicon which reads as follows: Statutory definition, includes partnership, Financial Services and Markets Act, 2000 (c.8), S. 367(2) (Stroud, 6th Edn., 2000, Supplement, 2003). It also includes group of bodies, partnership of enterprise card on by one or more persons or bodies and a body which is substantially the same at or successor, to, another body, Government Resources and Accounts Act, 2000 (c.20), S. 17(7) (Stroud, 6th Edn., 2000, Supplement, 2003). The .....

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..... above decision of the Tribunal in assessee s own case for earlier assessment years, the ground raised by the assessee in the present appeal stands dismissed. 6. The next ground raised in the appeal of the assessee relates to disallowance of expenses of ₹.17,80,436/- claimed as deduction. During the course of assessment proceedings, the Assessing Officer noticed that the assessee has made cash payments on a single day to the single party, i.e., M/s. New Bharat Electricals & Enterprises of ₹.90,826/-, ₹. 6,78,600/- to PSK Blue Metal and ₹.10,000/- to Raghvendra Blue Metal. Moreover, the assessee has also made cash payment to New Bharath Foundations on three occasions at ₹.3,89,600 on 05.10.2011, ₹.4,15,650/- and ₹.1,95,760/- totalling to ₹.10,01,010/-. Accordingly, in view of the provisions of section 40A(3) of the Act, the Assessing Officer disallowed the same and brought to tax. On appeal, the ld. CIT(A) confirmed the disallowance made under section 40A(3) of the Act. 6.1 The assessee carried the matter in appeal before the Tribunal. 6.2 We have heard both the sides, perused the materials available on record and gone through the .....

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