TMI Blog2021 (2) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... ial undertakings would undertake infrastructural projects. In the case on hand, the claim made by the assessee was under Section 80IA(4), by executing a project with the Government of India Organization. Therefore, we are of the view that the CIT(A) was right in rejecting such a plea raised by the Revenue. Tribunal did not go into the question as to the effect of the mandate under Rule 12(2), but proceeded to hold that the assessee Company has not derived any profits from the activities of developing or operating and maintaining any infrastructure facilities. There are absolutely no examination of the factual position in the case on hand. The Tribunal did not go through the Concession Agreement based on which the assessee Company had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same and so far as the existing lanes, namely 1 to 4, in terms of the Concession Agreement, the assessee has to operate and maintain the same, so that the traffic worthiness and safety are at no time materially inferior as compared to its existing condition prior to the execution of the agreement. Therefore, we are of the clear view that the finding rendered by the Tribunal is utterly perverse and calls for interference. - Decided in favour of assessee. - Tax Case Appeal No.654 of 2019 And C.M.P.No.24830 of 2019 - - - Dated:- 2-2-2021 - Honourable Mr.Justice T.S. Sivagnanam And Honourable Ms.Justice R.N. Manjula For the Appellant : Mr.Srinath Sridevan For the Respondent : Mr.Karthik Ranganathan, SSC assisted by Mr.S.Rajesh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law (iii), as framed above, does not arise for consideration in this appeal, as the Tribunal, in the impugned order, has not dealt with the issue nor raised by the Revenue before the Tribunal. Therefore, we delete the same from the array of questions for consideration and accordingly re-frame the questions on the following terms: (i) Whether on facts and circumstances of the case, the Tribunal is correct in rejecting the claim under Section 80IA of the Act on the ground never urged or argued before the authorities below? (ii) Without prejudice, based on the material available on record, has the Tribunal erred in stating that the Appellant has not carried on operation and maintenance activities? (iii) Whether on a correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 80IA of the Act. The Assessing Officer rejected the claim made by the assessee on the ground that Form No.10CCB, which is an audit report duly signed and verified by the Chartered Accountant, was not filed along with the return of income. 8. It is not in dispute that the said form was filed during the course of the assessment proceedings i.e., before the assessment was finalized. Aggrieved by the same and as well as by other findings rendered by the Assessing Officer, the assessee was on appeal before the Commissioner of Income Tax (Appeals)-8, Chennai [CIT(A)]. 9. The contentions advanced by the assessee as well as the Revenue was considered and the CIT(A) opined that it is an undisputed fact that the assessee had filed F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny profits from the activities of developing or operating and maintaining any infrastructure facilities. The correctness of this question is called in before us. 12. Firstly, we may note that though the Revenue had raised the issue regarding the mandate under Rule 12(2) of the Income Tax Rules before the Tribunal, the Tribunal did not take a decision on the same. Nevertheless, there are long line of decisions which hold that a substantive right cannot be denied or taken away by virtue of a rule which is only a machinery provision. In any event, the benefit granted under Section 80IA is a special benefit bearing in mind that industrial undertakings would undertake infrastructural projects. In the case on hand, the claim made by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the assessee was entitled to claim deduction under any one of the these heads, made a sweeping observation that the assessee has not derived any profits from the activities of developing or operating and maintaining any infrastructure facilities. 17. It is the submission of the learned Senior Standing Counsel appearing for the Revenue that the Concession Agreement pertain to formation of the fifth and sixth lane adjoining the existing four lane road, which was developed and was hither to maintain by NHAI and the assessee at no point of time made any development to the four lane road, which was already in existence. Therefore, her submission that whatever was the income earned by the assessee, for the purpose of developing and maint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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