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TMI Blog2021 (2) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, 'D' Bench, Chennai ('the Tribunal' for brevity) for the assessment year 2014-15. 2. The appeal was admitted on 27.11.2019 on the following substantial questions of law: "(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 the Audit Report in Form 10 CCB cannot be filed at the time of the Assessment Proceedings? (iv) Whether on a correct construction of Clause 12.2 of the Concession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act?" 4. We have heard Mr.Srinath Sridevan, learned counsel for the appellant and Mr.Karthik Ranganathan, learned Senior Standing Counsel, assisted by Mr.S.Rajesh, learned Junior Standing Counsel appearing for the respondent/Department. 5. The appellant-assessee is a subsidiary of L&T Infrastructure Development Projects Limited incorporated in 2008. The assessee was awarded the contract, which is termed as a Concession Contract in respect of Six-laning of Chennai-Tada Section on NH-5 from KM 11.00 to KM 54.40 (Length of 43.40 KM) in the State of Tamil Nadu to be executed as Build, Operate and Transfer-BOT (TOLL) on DBFO Pattern under NHDP Phase-V. 6. The National Highways Authority of India (NHAI) entered into an agreement with the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here under the Income Tax Rules was amended with effect from 01.04.2013 and the filing of the statutory form was made mandatory. The CIT(A) considered the said argument of the Revenue and held that though the rule has been amended and filing of such form along with the return of income was made mandatory, held that violation of the said rule would not take away the substantive right of the assessee in claiming a deduction under Section 80IA. Ultimately, the appeal stood allowed on the above ground in favour of the assessee. The CIT(A) also opined that, at best, it can be only a procedural formality and cannot deny the substantive right of the assessee. The Revenue was on appeal before the Tribunal. 10. From the impugned order, more partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the assessee Company has not derived any profits from the activities of developing or operating and maintaining any infrastructure facilities. 14. Firstly, we need to mention that 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 been granted the development work. 15. Furthermore, Section 80IA(4) would apply to any enterprise carrying on business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility which fulfills all the conditions, which are set out in clause (a), (b) and (c), to be read along with the provisos thereunder. 16. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Concession Agreement as set out in Article 12 of the Concession Agreement would be very relevant, more particularly Clause 12.2, which mandates that the assessee shall maintain, at its cost, the existing lanes of the project. Therefore, to state that the existing four lanes would not fall within any one of the clauses under Sub-section 4 of 80IA is factually incorrect, as the assessee develops the fifth and sixth lane and would also operate and maintain the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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