TMI Blog2012 (6) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... ther on the facts and circumstances of the case, the Ld. CIT(A) was correct ion holding that the assessee is eligible for deduction u/s.80IA in respect of profits derived from Kakinada port, Jamnagar port and Dahei port thought the assessee did not enter into an agreement for operation and maintenance of infrastructure facility with the Central Government/State Government/Local Authority/Statutory Authority? 3. Whether on the facts and circumstances of the case, the Ld. CIT(A) was correct in holding that the assessee is eligible for deduction u/s. 80IA though the assessee is not in the business of development operation and maintenance of any infrastructure facility.? 4. The Ld. CIT(A) erred in holding that the assessee is eligible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofits pertaining to Kakinada, Jamnagar and Dahej ports for the assessment year 2008-09. We find that the view taken by the CIT(A) for the assessment years 2005-06 to 2007-08 on the issue in dispute, was subject matter of appeal before this Tribunal, and the Tribunal vide its order dated 25th January, 2012, has upheld the orders of the CIT(A) for those years dismissing the grounds of the Revenue on that issue. The Tribunal for those years has relied on the still earlier order of the Tribunal dated 25.11.2005 in assessee s own case for the assessment years 2000-01 and 2001-02, and the relevant portion of the order of the Tribunal dated 25.1.2012 reads as follows- 7. We have heard both the parties and perused the material available on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de an argument that in Tribunal in assessee's own case held the requirement of section 80IA(4)(1)(b) is waived by the proviso to section 80IA. This interpretation has also been endorsed by the Bombay High Court in the case of CIT Vs. ABG Industries Ltd. (322 ITR 323) at page 330 : By the Finance Act 2001 the word 'or' came to be introduced after the word 'developing', to clarify in effect that the agreement between the enterprise and the authority of the central or state govt. or, as the case may be a local authority or a statutory body may provide for i) Developing or ii) Maintaining and operating or iii) Developing, maintaining and operating a new infrastructure facility. 10. With these observations, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to section 80IA(4)(i), it is righteously entitled to deduction u/s 80IA of the Act. 11.1 In view of the above decision of the Tribunal, we are of the opinion that for these assessment years also the assessee claim u/s. 80IA has to be allowed on the same reasons. 12. With regard to the deduction claimed in respect of Dhej Port, the Tribunal in its order dated 25.11.2005 had held the case fell outside the purview of the provisions of section 80IA (4) since O M of the infrastructure facility had commenced prior to 1.4.1999. However, the Tribunal allowed the claim of the assessee to be considered u/s 33AC and set aside the matter to the file of assessing officer. Before us the learned AR submitted that the claim for the present year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position that the claim allowed to the assessee in the initial assessment year of 2001-02 and thereafter in the asst. yr. 2002-03has not been withdrawn. There is no contravention from the Revenue either at the stage of the proceedings before the lower authorities or even before the Tribunal. Thus, factually speaking the claim of the assessee for deduction under s. 80IB stands admitte4d in the initial assessment year and also thereafter up to the assessment year prior to the year under consideration. On the factual matrix, there is no justification for the AO to deny the claim of the assessee for deduction under s. 80IB. The implication of the earlier assessment made for the initial assessment year under s. 143(3) is that the assessee has f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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