TMI Blog2021 (2) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of an infrastructure facility in the light of provisions of SPRH agreement. The aforesaid finding has been affirmed in appeal by the Tribunal. The aforesaid findings are concurrent findings of fact which do not suffer from any perversity. Revenue was unable to point out any perversity in the findings of fact recorded by the Commissioner of Income Tax (Appeals) as well as by the Tribunal. It is well settled in law that the concurrent findings of fact do not suffer from any perversity warranting interference of this court in exercise of powers under Section 260A of the Act. [SEE: SYEDA RAHIMUNNISA VS. MALAN BI BY L.RS. AND ORS. [ 2016 (10) TMI 1233 - SUPREME COURT] and PRINCIPAL COMMISSIONER OF INCOME TAX, BANGALORE ORS. VS. SOFTBRANDS INDIA P. LTD. [ 2018 (6) TMI 1327 - KARNATAKA HIGH COURT] - Decided in favour of the assessee. - I.T.A. NO.186 OF 2016 I.T.A. NO.262 OF 2014 - - - Dated:- 25-1-2021 - THE HON'BLE MR. JUSTICE ALOK ARADHE And THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY FOR THE APPELLANTS : BY MR. E.R. INDRAKUMAR, SR. COUNSEL FOR MR. E.I. SANMATHI, ADV., FOR THE RESPONDENT : BY MR. A. SHANKAR, SR. COUNSEL FOR MR. M. LAVA, ADV. JUDGMEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 20.12.2011 passed under Section 143(3) of the Act, held that the assessee has entered into an agreement with BIAL which is not a statutory body and the cargo handling facility does not form part of the airport and do not fall within the meaning of the expression 'infrastructure facility' as the assessee is a contractor and not a developer and therefore, denied the deduction claimed by the assessee under Section 80IA(4) of the Act. The assessee thereupon filed an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals), by an order dated 11.06.2012, inter alia held that the BIAL is a statutory body and the cargo handling facility forms part of airport and is covered within the expression 'infrastructure facility'. Thereupon, the revenue filed an appeal before the Tribunal. The Tribunal, by an order dated 30.01.2014, inter alia held that though the cargo handling facility falls within the expression 'infrastructure facility', yet the BIAL is not a statutory body and allowed the appeal preferred by the revenue. 3. The assessee thereupon filed a miscellaneous petition under Section 254(2) of the Act seeking rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding nearly 13% share and therefore, the BIAL is a company whose motive is to make profit and same cannot be termed as an authority. Our attention has also been invited to the agreement entered into by the assessee with BIAL and in particular, clause 3.2 and it has been contended that the assessee is operating the cargo handling services only on contract basis and he does not have any right over the building / structure occupied by it and BIAL has not actually transferred the cargo handling facility to the assessee and has only engaged the assessee to run cargo handling facility. Our attention has also been invited to cargo services as defined in the agreement to mean services to be provided to the users as detailed in Schedule A thereto. Section 2(b) of the Airports' Authority of India Act, 1994 has also been brought to our notice and it has been contended that airport means a landing off area for aircrafts, usually with runways and aircraft maintenance and passenger facilities and includes aerodrome as defined in clause (2) of Section 2 of the Aircraft Act, 1934. Reference has also been made to Section 2(2) of the Aircraft Act, which defines the expression 'aerodrome' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has to be held that BIAL is a statutory body. 7. With regard to the second issue whether the assessee is engaged in providing infrastructure development services within the meaning of Section 80IA(4) of the Act, it is submitted that cargo facilities are an integral part of airport. In this connection, reliance has been placed on Circular No.793 dated 23.06.2000 which was issued to clarify whether structures at ports for storage, loading and unloading etc. will fall within the definition of Section 10(23G) and 80IA of the Act. It is also urged that the assessee has developed cargo handling services under the built, operate and transfer scheme entered into with BIAL under Service Provider Right Holder (SPRH) agreement. Learned Senior counsel for the assessee has also placed reliance on the findings recorded by the Commissioner of Income Tax (Appeals) and has held that SPRH agreement gives the assessee right to design, construction, financing, testing, commissioning, maintenance, management and operation of the facility for the period of 20 years and it is specifically mentioned in the agreement that assessee is on built, operate and transfer basis and the facility has to be tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s owned by a company registered 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 xxxx Explanation.--For the purposes of this clause, infrastructure facility means-- (a) a road including toll road, a bridge or a rail system; (b) a highway project including housing or other activities being an integral part of the highway project; (c) a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system; (d) a port, airport, inland waterway, inland port or navigational channel in the sea. Thus, from close scrutiny of Section 80IA(4)(i)(b) of the Act, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... linked with critical airside service road and partaking of statutory infrastructure relating to security, customs, x-rays, etc. within its own operations, indicates that this service is part of commercial operations undertaken by air cargo operators and other air transporters whose equipment and machinery are also integrated in to the definition of aerodrome as per Section 2(22) of the Aircraft Act, 1934. Thus, it has been held by the Commissioner of Income Tax (Appeals) that cargo handling services are located within the airport and are critical infrastructure facilities and are deemed to be part of the airport. 11. The Appellate Authority has also taken note of the fact that SPRH agreement gives rights for design, construction, financing, testing, commissioning, management and operation of the facility for a total period of 20 years to the assessee and the concession is on built, operate and transfer basis. Therefore, it has been held that every contractor may not be a developer but every developer developing infrastructure facility on behalf of the Government is a contractor. In CHETTINAD LIGNITE TRANSPORT SERVICES P. LTD., supra, it has been held that proviso intends to ext ..... X X X X Extracts X X X X X X X X Extracts X X X X
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