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TMI Blog2016 (11) TMI 1693X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed a detailed reply justifying its claim of deduction and in support of its claim, filed copy of order of the Tribunal in assessee's own case in AYs 2003-04 and 2004-05 in ITA Nos. 1681 & 1682/Ahd/2006. 5. The claim of the assessee was not acceptable to AO. The AO stated that the decision of the Tribunal has not been accepted by the Revenue which has preferred appeal before the Hon'ble High Court; and secondly, the assessee is merely a contractor, doing its job as required by the agencies and does not own the infrastructure facilities. 6. Aggrieved by the decision of the AO, the assessee carried the matter before the CIT(A) and reiterated its claim. After considering the facts and the submissions, the CIT(A) dismissed the appeal of the assessee by making following observations:- "The argument of the appellant that the Hon'ble ITAT has allowed the claim of the appellant for AYs 2003-04 & 2004-05 is, with due respect, not acceptable because even though the facts in the current assessment year and those years are similar but there are two crucial point which were not there in the assessment order for A.Y.s 2003-04 & 2004-05 and which the Hon'ble ITAT has not considered. Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private capital in the development of infrastructure facility which is the purpose of granting benefit u/s.80IA. v. The decision in the case of M/s. B.T. Patil has taken away the basis on which ITAT, Ahmedabad decided the matter in favour of appellant for A.Y.2003-04 & 2004-05. Thus, the claim of the appellant for grant of benefit u/s.80IA is without any basis and the disallowance made by the A.O. is upheld. Thus, this ground of appeal is dismissed. '" 7. Aggrieved by this, the assessee is before us. 8. The Counsel for the assessee vehemently stated that the reasons given by the CIT(A) has been already taken care of by the Tribunal in subsequent years, i.e. AY 2005-06 in ITA No.2369/Ahd/2011, AY 2006-07 in ITA No.2589/Ahd/2009, AY 2007-08 in ITA No.783/Ahd/2010 and AY 2009-10 in ITA No.2083/Ahd/2012. It is the say of the Counsel that the Tribunal in assessee's own case in preceding as well as subsequent assessment years has allowed the claim of deduction and therefore, the same should be allowed for the year under consideration also. 9. Per contra, the DR strongly supported the findings of the Revenue Authorities. 10. We have given a thoughtful consideration to the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee as "Contractor" the exact nature of the execution of the work do not alter. Rather, this controversy has been resolved by Respected Coordinate Bench in the case of Patel Engineering Ltd. 94 ITD 411(Mum.)cited-supra. We are convinced with the argument of the ld.AR that a contractor can also be a developer. In this context, our attention has been drawn on a latest decision of Hon'ble Gujarat High Court pronounced in the case of CIT vs. Radhe Developers (2012)341 ITR 403 (Guj.), wherein the issue was in respect of claim of deduction u/s.80IB(10) of IT Act and the assessee happened to be "developer-cum-building contractor". The Hon'ble Court has held that the said developer had to make the construction and to engage labour on contract, therefore the term "developer" has to be understood in common parlance as well as in legal sense. The Hon'ble Court has taken the help of Websters- encyclopedia and other dictionaries and thereupon opined that the term "developer" carries a much wider connotation. As far as the agreement with Surat Municipal Corporation is concerned, the assessee has been referred as "party of the first part", hence no serous objection has been raised by the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase as also the material placed before us, we hereby hold that the said Explanation is not applicable on the assessee because the project assigned to the assessee by Surat Municipal Corporation was not merely in the nature of "works-contract" but much more that i.e. to develop the infrastructure and to operate the same. (c) An another objection of the Revenue Department is that the said infrastructure facility is not owned by the company. We want to clarify that a view has already been taken in this regard and it was held after analyzing the language of section 80IA(4) that the enterprise carrying on the business of development and maintenance of any infrastructure facility is to be owned by a company registered in India or by a Consortium of such companies. Thus, this section says that an Enterprise is to be owned by the assessee company which is in the business of development, maintenance and operation of infrastructure facility. It is not the intention of this section that the infrastructure facility is to be owned by the assessee-company. Otherwise also, an infrastructure facility mostly/generally belongs to the Government, hence there is no question of an infrastructure fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to the projects in question for both the years. The matter is disposed off accordingly." unquote. 7. Finally, the decision of Hon'ble Bombay High Court in the case of ABG Heavy Industries 322 ITR 323(Mum.) is directly applicable on the assessee, wherein it was opined that the said assessee entered into a contract for supply, installation, testing, commissioning and maintenance of container handling cranes at JNPT for a term of 10 years whereafter the same would vest in the letter, is entitled for deduction u/s.80IA(4). This decision of the Hon'ble Court is directly applicable on the facts of the case. 8. In the light of the overall discussion and specially considering the fact that in assessee's own case for AYs 2003-04 & 2004-05 vide an order dated 20/03/2009(supra), the Respected Coordinate Bench has already granted the deduction claimed by the assessee, therefore for the years under consideration the assessee is entitled for the deduction u/s.80IA(4) of the IT Act as per law." 11. Respectfully following the decision of Co-ordinate Bench (supra), we set aside the findings of the CIT(A) and direct the AO to allow the assessee the deduction of Rs. 8,52,50,413/- u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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