TMI Blog2022 (10) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... f project Number 6 Sabli Dam work - We are of the considered view that the assessee is not acting as a mere works contractor in respect of this project. The assessee has taken the responsibility of complete handholding of the project and also additional maintenance after 12 months post completion of project. Accordingly, we are of the view, that Ld. CIT(Appeals) has not erred in facts and in law in holding that the assessee is eligible for claim of deduction under section 80-IA (4) of the Act in respect of project Number 6. Contract No. 7: Tapi River, Kathor PKG-6 Irrigation - From the terms of the contract, primarily the work seems to involve restoration/upgradation/strengthening/maintenance of existing flood protection earthern embankment on the bank of river Tapi. The scope of work, in our view does not involve development of an infrastructure facility, as envisaged within the meaning of section 80-IA (4) of the Act. The work primarily has upgraded/strengthened the existing projects, but no development of infrastructural facility, in our view has taken place. Although, the assessee has undertaken responsibility of maintenance of the safer. 12 months after completio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee is not acting as a mere works contractor in respect of this project. The assessee has taken the responsibility of complete handholding of the project and also additional maintenance for 60 months post completion of project.Accordingly, we are of the view, that Ld. CIT(Appeals) has not erred in facts and in law in holding that the assessee is eligible for claim of deduction under section 80-IA (4) of the Act in respect of contract number 10 mentioned above. C ontract number 11: GIDC Dahej Road - Assessee is not acting as a mere works contractor in respect of this project. The assessee has taken the responsibility of complete handholding of the project and also additional maintenance after 60 months post completion of project. In this case, it may be useful to refer to CIRCULAR NO. 4/2010 [F.NO. 178/14/2010-IT(A-I)], DATED 18-5- 2010, wherein Board considered the issue as to whether widening of existing roads constitutes creation of new infrastructure facility for the purpose of section 80-IA(4)(i) of the Income-tax Act, 1961. Vide the above Circular, CBDT clarified that widening of an existing Road by constructing additional lanes as a part of a highway project by an un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 248 NH-8 NHAI ROAD - From perusal of the observations made by Ld. CIT(Appeals), it is evident that the assessee has not developed any infrastructure facility but only rendered services of civil work in the form of repairing and restoration of the existing road. In this case, it may be useful to refer to CIRCULAR NO. 4/2010 [F.NO. 178/14/2010-IT(A-I)], DATED 18-5-2010, wherein Board clarified that widening of an existing Road by constructing additional lanes as a part of a highway project by an undertaking would be regarded as a new infrastructure facility for the purpose of section 80-IA(4)(i). However, simply relaying of an existing Road would not be classifiable as a new infrastructure facility for this purpose. Accordingly, in our view, we find no infirmity in the order of Ld. CIT(Appeals) with respect to Contracts as not eligible for claiming deduction under section 80-IA(4). - ITA No. 126/Rjt/2015, ITA No. 147/Rjt/2015 - - - Dated:- 28-9-2022 - Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : Shri D.M. Rindani, A.R. For the Revenue : Shri Aarsi Prasad, CIT-D.R. ORDER PER BENCH: - These are th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f infrastructure facility in respect of projects specified by him and listed in ground No. 2 above. The appellant craves leave to add, amend, alter and withdraw any ground of appeal anytime up to the hearing of this appeal. We shall first take up the Department s appeal. 4. The brief facts of the case are that the assessee company is a government contractor doing mainly government work on contractual basis. The assessee claimed deduction under section 80-IA(4) of the Act in respect of contracts carried out with Government and Semi-Government Bodies. During the course of assessment, the AO denied the claim of 80-IA(4) of the Act to the assessee on ground that the assessee is contractor and is not a developer within the meaning of 80-IA(1) of the Act and hence is not eligible for deduction respect of receipts from contracts carried out with Government and Semi-Government Bodies. The AO held that the assessee had carried out works contract in respect of each of the projects for which it had claimed deduction under section 80-IA(4) of the Act. The assessee has not been able to establish as to how it made investment in the project in addition to the fact that he has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 80-IA. In contrast to this, a person who enters into a contract with another person for executing works contract will not be eligible for the tax benefit under section 80-IA. 9. Hence, it is evident that the Explanation, below sub section (13) of section 80IA, as inserted by the Finance Act, 2009 with retrospective effect from 01.04.2000, has only clarified it that the deduction is not available to business referred to in sub-section (4) which is in the nature of a works contract awarded by any person (including .the Central or State Government) and executed by an enterprise referred to in sub-section (1). The argument as to whether a contractor is a 'developer' within the meaning of the above provision of the Act has only been put to rest by providing an explicit clarification which leaves no scope for any ambiguity as regard the issue that the 'contractors' are not 'developers' within the meaning of sub-section (1) of section 80IA and hence, they are not eligible for deduction in respect of their business income from executing work orders as per contract with either Central Govt. or State Govt. or any other agency. The explanation does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of each of the projects for which it has claimed deduction u/s. 80IA(4) of the Act. The assessee has also been unable to establish as to how did it make an investment in the project, part from not being able to prove that it had not executed a works contract as is evident above. In view of the foregoing, I find no merit in the claim of the assessee for a deduction u/s.80IA of the Act. Hence, in consideration of the above discussion and provisions of section 80IA of the Income-tax Act, 1961, as applicable for the year under consideration, it is evident that the assessee is not eligible for deduction out of its business income under the provisions of the said section and hence, the deduction claimed by the assessee in the return of income under section 80IA(4) of the Act is to be disallowed and added back to the total income of the assessee for the assessment year under consideration. Hence, the deduction claimed by the assessee company u/s.80IA(4) amounting to Rs.13,46,89,674/- is hereby disallowed and withdrawn and added back to the taxable income of the assessee company. 5. In appeal, Ld. CIT(Appeals) discussed facts of each of the individual projects carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Laxmi Civil Engg. P. Ltd. (Pune Tribunal) in ITA Nos. 766/PN/09, 254/PN/08, 431/PN/07 435/PN/07 14. Gayatri Projects Ltd. (Hyderabad Tribunal) in ITA Nos. 211/Hyd/2008, 711 712/Hyd/2010 15. Koya Co. Construction (P.) Ltd. (Hyderabad Tribunal) (2012) 32 CCH 0043 16. Pratibha Industries Ltd. (Mumbai Tribunal) in ITA Nos. 2197 to 2199/Mum/2008 dated 19-12-2012 17. Katira Construction Ltd. (2013) 31 taxmann.com 250 (Gujarat HC) 18. KMC Constructions Ltd. (2012) 32 CCH 0297 (Hyderabad Tribunal) 19. Vijay Infrastructure Ltd. (2018) 402 ITR 0363 (Allahabad HC) 20. The Supdt. Engineer vs ITO (2013) 36 CCH 0568 (Chandigarh Tribunal) 21. Circular no. 4 of 2010 dated 18-05-2010 (widening of an existing roads) 22. Rohan Rajdeep Infrastructure (2013) 157 TTJ 333 (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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: The above provision has been further clarified by way of explanation under sub-section (13) of section 80-IA(4) of the Act, with retrospective effect from 01-04-2000, which reads as under: Explanation.-For the removal of doubts, it is hereby declared that nothing contained in this section shall apply in relation to a business referred to in sub-section (4) which is in the nature of a works contract awarded by any person (including the Central or State Government) and executed by the undertaking or enterprise referred to in sub-section (1) The Memorandum to the Finance Bill 2009 explaining the above provision reads as under Further, with a view to preventing the misuse of the tax holiday under section 80-IA of the Income-tax Act, it is proposed to amend the Explanation to the said section to clarify that nothing contained in the said section shall apply in relation to a business referred to in sub-section (4) of the said section which is in the nature of a works contract awarded by any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions under section 80-IA(4) of the Act is for encouraging private sector participation. Secondly, only investment in development of the infrastructure sector is eligible for deduction under section 80-IA(4) of the Act and benefit is not available for the persons who merely executes the civil construction work or any other works contract . Thirdly , where a person makes the investment and himself executes the development work i.e., carries out the civil construction work, he will be eligible for tax benefit under section 80- IA(4) of the Act. Fourth , the Income Tax Act does not define what would constitute as works contract/works contractor (as opposed to section 194C of the Act, where the word contractor finds a specific definition). However, from the language of the Statute read with the Memorandum the Finance Bill, benefit is sought to be denied only to persons who merely executive works contract, but in cases where a person makes the investment and himself executes the development work i.e., carries out the civil construction work, benefit under section 80-IA(4) of the Act would be available. Fifth , apparently there is no conflict between the term works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be available to works contractor/civil contractor engaged in development of the project by making the investment and himself executing the development work and is only sought to be denied to those class of persons engaged merely in execution of works contract/ civil construction work. 5.5 Now, in the absence of any definition of works contractor with reference to section 80-IA(4) of the Act, the issue for consideration is what class of cases would fall under the definition of mere execution of works contract and hence not eligible for benefits under section 80-IA(4) of the Act which cases would fall under the category of development activities done by a civil/ works contractor and hence eligible for benefits under section 80- IA(4) of the Act. The Hyderabad bench of Tribunal in case of M/s. GVPR Engineers Ltd. Vs. ACIT (2012) 51 SOT 0207 (Hyd) (URO) held that whether the assessee is a developer or works contractor is purely depends on the nature of the work undertaken by the assessee. Each of the work undertaken has to be analyzed and a conclusion has to be drawn about the nature of the work undertaken by the assessee. 5.6 Therefore, in our view, in order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsibility. 5.6.1 To sum up, (i) first to see any new infrastructural facility has been put in place (and not mere repairs/ restoration/ upgradation/ strengthening etc. is done of the existing facility) (ii) In addition to works contract, the assessee undertakes addition responsibilities and risks attached to the project being undertaken, both financial risk as well as undertaking responsibility towards various other obligations attached towards successful completion and handling over the project including post completion performance guarantee, then he would, in our considered view, be eligible to deduction u/s 80-IA(4) of the Act. 5.7 Now having discussed the legal background, we shall come to the facts of the case in hand. Department's appeal 6. Now, with the above background in place, we shall first deal with the Department s appeal in which it has challenged the various projects in respect of which relief has been given by the Ld. CIT(Appeals). As stated earlier, Ld. CIT(Appeals) has discussed the facts and merits of each of the projects undertaken by the assessee individually and then decided on the allowability of deduction u/s 80-IA(4) of the Act. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and plant, deployment of personnel and supervisory staff, quality control, testing etc. The work of building in quality insurance shall be deemed to be covered in this scope of the work. The cost of contract was of 10,20,09,748/- and it was to be completed within a period of 18 months. The Contractor had to give 12 months free maintenance guarantee period from the certified date of taking over. During this period the contractor was to repair the damaged portion of any portion of the project. The terms and conditions of the contract were similar to those as mentioned in the contracts entered by the government or by its agencies for developing any infrastructure facility for public utility. After having regard to the terms and conditions of the agreement for development of the infrastructure facility, the rulings of the courts and position of law on the issue, in my opinion, the assessee acted as a developer because he developed infrastructure facility and handed over the same to the authority concerned with guarantee period for maintenance. Therefore, the assessee was eligible for claim of deduction u/s. 80IA(4)(i) of the Act. Accordingly, the same is allowed. 7.1 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clause 17 and 20 of the printed B-2 form, the contractor for a period from the date of issue of the final certificate under clause 7 of the printed B-2 form till the expiry of twelve calendar months commencing immediately after the plant or works have been considered to be put to commercial use, shall be liable for the proper maintenance and for replacement of any part of the plant, materials, workmanship or any other reason for which in the judgment of the engineer, the contractor is responsible and for making good any damage arising therefrom. The Department's decision regarding date of beginning of .commercialize, of the completed work under the contract/depending upon the circumstances and merits of the situation shall be final. The maintenance period in respect of plant tor works for which replacement of any part has been made for the above reason, shall be further extended until the expiry of twelve months after the replaced parts have been put into commercial use . PLAN AND DRAWINGS : The contractor shall submit the following information to the Engineer-in-charge for approval within the time stipulated against each item below. A. general la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ength of 1050 mtr. with qty. of earthwork of 77389m3, geo- fabric filter of 32871m2, gabions of (1.5x1.0x0.6 mt.) in 32871 nos., Rope Gabion (1.5x1.0x0.6 mtr) and gabion (4.0x1.0x1.0 mtr.) in 263 nos. This work was to be completed according to a time bound programe. The cost of the contract was of Rs.10,88,54,285/- The project was to be completed within a period of 15 months and maintenance period was for a period of 12 months after completion of the project. The terms and conditions of the contract were similar to those as mentioned in the contracts entered by the government or by its agencies for developing any infrastructure facility for public utility. After having regard to the terms and conditions of the agreement for of the infrastructure facility, the rulings of the courts and position of law on the issue, in my opinion, the assessee acted as a developer because he developed infrastructure facility and handed over the same to the authority concerned with guarantee period for maintenance. Therefore, the assessee was eligible for claim of deduction u/s. 80IA(4) (i) of the Act. Accordingly, the same is allowed. 7.5 From the reading of the contention of the Ld. CIT(App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of contract number 8 and contract number 7 mentioned above are similar. Accordingly, observations in respect of contract number 7 would apply to contract number 8 as well. Accordingly, Accordingly, we are of the view that Ld. CIT(Appeals) has erred in facts and in law in holding that the assessee is eligible for claim of deduction under section 80-IA (4) of the Act in respect of contract number 7 as mentioned above. 7.8 Accordingly, we are of the view that the assessee is not eligible for claim of deduction under section 80-IA (4) of the Act in respect of contract number 8. Contract number 9: Bharuch 4, Lane Road: 7.9 In this case, Ld. CIT(Appeals) while allowing the relief with the following observations: 11.8 The contract at Sr. No. 9 was between Gujarat State Road Development ion Ltd. and the appellant for construction of additional 2-Lane of Bharuch- Dahej Road to make Bharuch-Dahej (SH-6) as Lane Road. The terms and conditions of the agreement included complete work including all ancillary works on turnkey basis and the project was handed over to the state agency after its execution with warranty period of twelve months from the date of its completion. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was for construction of roads including SWD, Street light, providing water supply distribution network system and providing treated effluent collection network system for chemical zone at Dahej. It was construction of four lane asphalt road in chemical sector at Dahej in a length of about 3250 mtrs, with provision of a center verge 1 mtr. wide for dividing the traffic moving in opposite directions, pucca sides shoulders of 1.5 mtrs. width were to be constructed on either side of roads for allowing facility of pedestrian traffic/two wheelers to move on the pucca side shoulder duly segregated from the heavy traffic in the main lane, pucca portion of side shoulder could also be used for road widening in future, construction of two lane asphalt road in length of about 800 mtrs. This portion of road was also proposed to have a pucca side shoulder of 1 mtr wide segregated from the trafficable lane for slow moving and pedestrian traffic and for use of widening in future, construction of RCC storm water drains on both sides of the roads for effective surface run off from the chemical zone away from the chemical zone through a outfall RCC storm water drain, so as to prevent the water loggi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the observations made by Ld. CIT(Appeals), we have also perused terms of the contract/agreement and it would be useful to produce some of the terms, which would throw useful light on the additional responsibility of being undertaken by the assessee. Security Deposit Initial Security Deposit shall be in the form of DD/FDR of Nationalized Banks/ Scheduled banks - UTI, ICICI, HDFC, IDBI banks NSC or SSNNL bonds etc. equivalent to 2.5% of the estimated cost put to tender i.e. Rs.61,12,109.00 and 2.5% of the estimated cost i.e. Rs.61,12,109.00 shall be deducted from the running account bills as Security Deposit 5% i.e. Rs.1, 22,24,218.00 in form of performance bond of any Nationalized banks / UTI, ICICI, HDFC, IDBI banks NSC or SSNNL bonds etc. so as to make total Security Deposit not more than 10% of the estimated cost i.e. 2,44,48,436.00. Defect Liability Period 12 months after the actual date of completion of the completion of the work Performance Maintenance Guarantee The Contactor shall give performance guarantee in form of unequivocal bank guarantee amount for 5% of Estimated cost put to tender i.e. Rs. 1,22,24,218.00. The performa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Security Deposit not more than Rs. 2, 44, 48,436.00 equivalent to 10% of the estimated cost. 4.2 Earnest Money paid by furnishing the initial Security Deposit or adjusted against the Initial Security Deposit at the discretion of the Owner. 4.3 If the successful tenderer fails to commence the work within the prescribed time specified in the Contract the security deposit shall be forfeited to action under clause no. 7/8. 4.4 The Initial Security Deposit under this clause shall become due for discharge only after the completion of Defect Liability Period and issue of a Final Acceptance Certificate by the Engineer - in - Charge, settlement of dues to the Company and after the Contractor furnishes a Bank Guarantee in accordance with clause 56 towards Defect Liability. 4.5 If the Contractor/ Sub- Contractor or their employees shall damage, break, deface or destroy any property belonging to the Owner or others during the execution of the Contract, the same shall be made good by the Contractor at his own expenses in all respects and in default thereof, the Engineer - in -Charge may cause the same to be made good by other agencies and recover expenses form the Contracto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k as certified by the Engineer-in-Charge which is indicated in the Completion Certificate. Any damage or defect that may arise or lie undiscovered at the time of issue of Completion Certificate, connected in any way with the equipment or materials supplied by him or in the workmanship, shall be rectified or replaced by the Contractor at his own expense as deemed necessary by the Engineer-in-Charge or in default, the Engineer-in-Charge may carry out such works by other agencies and deduct actual cost incurred towards labour, supervision and materials, consumables or otherwise plus 15% towards over heads (of which the Certificate of Engineer-in- Charge shall be final) from any sums that may be then or at any time thereafter become due to the Contractor or from his Security Deposit or the proceeds of sale thereof or a sufficient part on thereof. This 12 months period will be termed as Defect Liability Period. 56.2 If the Contractor feels that any variation in work or in quality of material or proportions would be beneficial or necessary to fulfill the guarantees called for, he shall bring this to the notice of the Engineer-in-Charge in writing. If during the Defect Liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a 5 met. Wide central verge, within 4 lane carriage way, bound by R.C.C. kerb wall with due provision in between to facilitate vehicles to change lanes at locations defined in working drawings. Providing 2 met wide cycle track / foot path on either side of 4 lane concrete carriage way with necessary R.C.C. guard stones and on either side of both the cycle track / foot path to separate heavy traffic and pedestrians and the two wheeled light traffic. Developing a new 4 lane concrete carriage way in portion C7 to C8 including central verge and cycle track / foot path as specified under para 1b (i) 1b(ii) above. Construction of R.C.C. storm water drain on both sides of 4 lane road concrete carriage CC1 to C8 for effective disposal of the surface water run off for preventing the damage in the road structure as well as adding to the aestheticism in all adverse situations. Necessary support is provided in crossincpthe S.W.D. runoff to flow under the carriage way through R.C.C. box culverts at appropriate locations. Care has been taken to provide facility of un hindered maintenance and inspection of existing services of water supply lines, chemical and gas pipe lines, cables without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce guarantee bond in the format given shall be submitted at the time of issue of completion certificate and having validity of 5 years from the date of completion certificate. 10.0 DEDUCTIONS FROM THE CONTRACT PRICE AIL costs, damages or expenses which 60-Developer may have paid or incurred which under the provisions of the Contract the Contractor ,s liable/will be liable, will be claimed by the Co- Developer. All such claims shall be billed by the Co-Developer to the Contractor regularly as and when they fall due Such claims shall be paid by the Contractor within 15 (fifteen) days of the receipt of the corresponding bills and if not paid by the Contractor within the said period, the Co-Developer may then deduct the amount from any moneys due i.e. Security Deposit or becoming due to the Contractor under the Contract or may be recovered by actions of law or otherwise, if the Contractor fails to satisfy the Co-Developer of such claims. 3.0 CONTRACTOR TO INDEMNIFY THE CO-DEVELOPER The Contractor shall indemnify the Co-Developer and every member and employee of the Co-Developer and also the Engineer-in-Charge and his staff against all actions, proceedings, cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned above. Contract number 13: Bhopal Vidisa Road: 7.21 In this case, Ld. CIT(Appeals) while allowing the relief made the following observations: 11.12 The Contract at Sr. No. 13 was between the appellant and the Public Works Department to construct road of 36.10 k. mtrs. as between Bhopal and Vidisa as a part of the Madhya Pradesh State Road Sector Development Programe, Phase 1, Six State Highway Corridors. The appellant, after completion of the work, handed over the developed infrastructure facility to the Madhya Pradesh Public Works Department, Thereafter, the assessee had to undertake maintenance of the said infrastructure for a period as specified in the terms of the contract. If any damage occurred during this period, it was the responsibility of the appellant and the entire infrastructure had to be maintained by him alone. The appellant undertook an obligation to design the project which was approved by the competent authority of Gujarat Maritime Board and was assigned with the duty to develop the facility, the appellant was fully responsible to execute and complete the work. He was given possession of the land and property during the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following: The Contractor shall provide security for his performance of the Contract to the Employer within 28 days after the receipt of the Letter of Acceptance. The Performance Security shall be in the form of an unconditional bank guarantee from any nationalised bank or scheduled bank in India or foreign bank. The amount of the bank guarantee shall be 10% (ten percent) of the Contract Price. The performance security shall be denominated in the types and proportions of currencies in which the Contract Price is payable. The same shall be furnished to the Employer in a proforma included in Section VIII of the Bidding Documents. The Contractor shall notify the Engineer when providing the performance security lo the Employer. The performance security of a Joint Venture shall be in the name of the Joint Venture. In cases where the Bid of the successful bidder is seriously unbalanced or front loaded, the Employer may require that the amount of the 'Performance Security set forth above, be increased at the expense of the successful bidder to a level sufficient to protect the Employer against financial loss in the event of default of the successful bidder under the Contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y percent of the depreciated value of plant and equipment as may be determined by the .Engineer. This advance shall be further subject to the condition that: (i) such , plant and equipment are considered by the Engineer to be necessary for the-Works, (ii) such plant and equipment are in working order, and (iii) the Contractor provides an unconditional bank guarantee by a bank acceptable to the Employer in an amount equal to the advance. Such bank guarantee to remain effective until the advance has been completely re-paid by the Contractor out of current earnings under the contract and certified accordingly by the Employer. No advance shall be granted on any piece of plant or equipment with a value of less than Rs.50,000/- (Rupees fifty thousand). No advance for plant and equipment shall be granted after six months from the date of commencement, which period may be extended if considered reasonable by the Employer. (c) The bank guarantee shall be denominated in the types and proportions of currencies in which the mobilisation advance is payable. The Contractor has the option of splitting the bank guarantee into parts each not less than 2.5% (two and one half percent) of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, in light of the aforesaid decision of the Tribunal Hyderabad Bench, we are of the view that merely because the assessee was receiving payments from the Government in progress of work it cannot be said that the projects were financed by Government. The attendant conditions at the time of grant of mobilisation advance play an important role in deciding whether the project is a works contract or development project . In the instant facts, we observe that mobilisation advance was given to the assessee after imposing strict conditions in the form of security deposits/bank guarantee as a precondition before such mobilisation advance was granted to the assessee. This is a pointer to the fact that the assessee was acting as a developer in the instant set of facts in respect of the contract mentioned above. 7.24 Accordingly, we are of the view, that Ld. CIT(Appeals) has not erred in facts and in law in holding that the assessee is eligible for claim of deduction under section 80-IA (4) of the Act in respect of contract number 13 mentioned above. 7.25 In the combined result, the Department s appeal is partly allowed. Now we shall take of the assessee s appeal. Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 80-IA of the Act. 8.3 Accordingly, in our view, we find no infirmity in the order of Ld. CIT(Appeals) with respect to Contract Number 1. Accordingly, in our view, the assessee is not eligible for claiming deduction under section 80-IA of the Act in respect to Contract number 1. Contract No. 2: KKS RJTI-A Road 8.4 In this case, Ld. CIT(Appeals) while disallowing the claim of deduction u/s 80-IA(4) of the Act with the following observations: 11.1 The contract at Sr.No.2 was entered between Gujarat State Roads and Building Department and the appellant for Improvement of Rural Roads under the scheme of 12th Finance Commission in Subdivision of Rajkot district. The contract was for executing repairing and resurfacing of roads in the district of Rajkot. The work included extension of shoulders on both sides of roads, repairing the potholes, fill up depression, excavate and carry out the full depth repair with GSBC, WMM, Prime coat and SD overlay and Wearing of surface, seal the cracks by Fog/Slurry seal, clean the surface, provide tack coat and lay profile corrective course and lay bituminous macadam overlay, providing surface dressing (two coat)/ bitumin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g road. As there was no development of any infrastructure facility, in my considered opinion, the assessee,was not eligible for claim of deduction u/s.80IA(4) of the I.T. Act Therefore, the action of the A.O. was confirmed. 8.9 From perusal of the observations made by Ld. CIT(Appeals), it is evident that the assessee has not developed any infrastructure facility but only rendered services of civil work in the form of repairing and restoration of the existing road. In this case, it may be useful to refer to CIRCULAR NO. 4/2010 [F.NO. 178/14/2010-IT(A-I)], DATED 18-5-2010, wherein Board clarified that widening of an existing Road by constructing additional lanes as a part of a highway project by an undertaking would be regarded as a new infrastructure facility for the purpose of section 80-IA(4)(i). However, simply relaying of an existing Road would not be classifiable as a new infrastructure facility for this purpose. Accordingly, in our view, we find no infirmity in the order of Ld. CIT(Appeals) with respect to Contract Number 3. 8.10 Accordingly, in our view, the assessee is not eligible for claiming deduction under section 80-IA(4) of the Act respect to Contract number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Tankara - Morbi in district of Rajkot. Terms and conditions of the agreement were examined. As a matter of fact, the contract was made for improving/resurfacing rural roads in district of Rajkot . The work included providing and laying thick mix seal surface using stone chips, rolling and consolidation of WBM including sealing depression, preparing the surface by brushes for removing caked mud, loose dirt etc., supplying and spreading of murrum for road-side shoulders including rolling and watering, providing and laying thick bituminous macadam layer, fixing ordinary kilometer stones, indicator stones, guard stones and road sign boards jaf M.S plates and angle irons, including painting, lettering etc. complete with fixing in C.C. block with necessary excavation, pre-casting including necessary reinforcement, painting, including necessary reinforcement, painting, lettering and and fixing hector-meters etc. It was revealed from the terms and conditions of the contracts that the assessee did not develop any infrastructure facility but only rendered services of civil work in the form of repairing and restoring of the existing road. As there was no development of any inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , guard stones and road sign boards of M.S plates and angle irons, including painting, lettering etc. complete with fixing in C.C. block with necessary excavation, pre-casting including necessary re-inforcement, painting, lettering and fixing hector-meters etc.. The terms and conditions of the contracts were examined and it was observed the assessee did not develop any infrastructure facility but only rendered services of civil work in the form of repairing and maintenance of the existing road. As there was no development of any infrastructure facility, the assessee was not eligible for claim of deduction u/s. 80IA(4) of the IT. Act. Accordingly, the action of the A.O. is confirmed. 8.18 From perusal of the observations made by Ld. CIT(Appeals), it is evident that the assessee has not developed any infrastructure facility but only rendered services of civil work in the form of repairing and restoration of the existing road. In this case, it may be useful to refer to CIRCULAR NO. 4/2010 [F.NO. 178/14/2010-IT(A-I)], DATED 18-5-2010, wherein Board clarified that widening of an existing Road by constructing additional lanes as a part of a highway project by an undertaking wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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