TMI Blog2023 (3) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... rund Sahakari Pat Sanstha [ 2022 (10) TMI 348 - ITAT NAGPUR] , the assessee is very well entitled to claim deduction u/s 80IA(4) of the Act. Therefore, we are unable to find any valid reason to interfere with the findings arrived at by the ld.CIT(A). Thus, we uphold the same. Accordingly, the sole ground of the Revenue dismissed. Deduction u/s 80IA - denial of deduction as conditions prescribed for claiming deductions u/s 80IA has not been complied with by the assessee because: (i) there was no development of any infrastructure facility; (ii) the appellant had been treating bio medical waste which was not covered in the definition of infrastructure facility as per Explanation to section 80IA(4) of the Act and (iii) the appellant was paying rent for plant machinery which indicate that the facility was not owned by the appellant - HELD THAT:- On being asked by the Bench, rebutting the allegation of the AO that the assessee do not own any plant and machinery as it had paid rent thereon, the ld. Counsel submitted the copies of the financial statements including balance sheet and chart of relevant FY showing claim of depreciation which reveals that the assessee has deployed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of disallowance of deduction u/s 80IA of the Act, even though the assessee failed to file its return of income within the time prescribed under subsection (1) of Section 139 of the Income Tax Act, 1961 and filing of the return within such stipulated period was pre-requisite for claim of deduction under this section. ii) The appellant craves leave to add, amend or modify the grounds of appeal subsequently before disposal of the appeal. 3. The ld. Sr. DR, supporting the action of the AO, submitted that the ld.CIT(A) has erred in deleting the addition made on account of disallowance of deduction u/s 80IA of the Income-tax Act, 1961 (for short, the Act ), even though the assessee failed to file its return of income within the time prescribed under sub-section (1) of section 139 of the Act and filing of the return within such stipulated period was a prerequisite as per the mandate of the Act for claiming the deduction under this section. The ld. Sr. DR, drawing our attention towards relevant part of the first appellate order, submitted that the ld.CIT(A) has granted relief to the assessee without considering the relevant facts and circumstances, therefore, the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 170(1), Department was required to assess income of appellants after taking into account revised returns filed after amalgamation of companies - Held, yes - Appellants had entered into an interconnected scheme of arrangement and amalgamation with nine group entities - After sanctioning of scheme, revised returns were filed on 27-11-2018 - Assessing Officer disregarded revised returns on ground that same were filed late and no condonation of delay had been obtained in accordance with section 119(2)(b) - However, it was found that provisions of section 119(2)(b) would not be applicable where an assessee had restructured his business, and filed a revised return of income with prior approval and sanction of NCLT, without any objection from department - Further, NCLT had passed last orders granting approval and sanction of schemes only on 22-4-2018 and 1-5-2018, hence, it was an impossibility for assessee companies file revised returns of income for assessment year 2016-17 before due date of 31-3-2018 - Whether therefore, Department was to be directed to receive revised returns of income for relevant assessment year 2016-17 filed by appellants on 27-11-2018 and complete assessment afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, the Board is entitled to exercise its power and relax the requirement contained in Chapter IV or Chapter VI-A. If such a power is conferred upon the Board, this Court, while exercising jurisdiction under Article 226 of The Constitution of India, would also be entitled to consider as to whether the petitioner's case would fall within one of the conditions stipulated under Section 119(2)(c). So keeping in view the above facts your honour will find that the assessee has made all compliances in time but due to technical default the return uploaded could not be generated on 28.09.2012. From the above decisions of hon ble courts your honour will find that the assessee s plea may be considered as there was impossibility and things were not in control of the assessee. So the delay in filing the return may be condoned. The assessee may be given benefit of impossibility or out of control things as per section 119(2)(c), which gives the right to the assessee for claiming the deductions bona fidely. So going through the above facts and case laws, it is humbly prayed that the appeal of the department may please be dismissed. 5. The ld. Counsel of the assessee, precis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y retirement under the scheme, shall be entitled to deduction u/s 10(10C) even though the revised return was filed belatedly due to circumstances beyond the control of the assessee. 8. The ld. Counsel also drew our attention towards the relevant paras 3.3 to 3.5 of the first appellate order and submitted that the return was uploaded on 29.09.2012, but, the acknowledgement of the return could not be downloaded and despite several efforts the assessee could not open the acknowledgement as it was not accepting the password and under the fair belief and confidence that they can download the return acknowledgement any time from the Department site, they proceeded with other returns. The ld. Counsel submitted that the ld.CIT(A) has rightly concluded that disallowing the claim of deduction u/s 80IA of the Act on account of the fact that the return of income was not filed is not sustainable as the assessee was prevented by sufficient cause from filing the return within the time specified and the ld. First appellate authority after considering the entire facts and circumstances wherein the return could not be uploaded within the time prescribed u/s 139(1) of the Act due to technical prob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.09.2008 2009-10 29.09.2009 30.09.2009 2010-11 28.09.2010 30.09.2010 2011-12 29.09.2011 30.09.2011 2012-13 12.10.2012 30.09.2012 2) The turnover of the company has also increased from 2.87 Crores in 2005-06 to 11.91 Crores in 2011-12 due to Joint efforts of all its management, employees and all other related persons. 3) During the year under consideration also the assessee got all its accounts audited before the due date. The final Computation of Income was also prepared the complete amount of tax due on self assessment i.e. Rs. 558280 was paid on 27.09.2012. The digital signature of Director i.e. Sh. Dheeraj Aggarwal required for filling the return were also obtained on 26th Sept 2012. Thus the return was complete in all respect along with Tax on 27.09.2012 was given to the company s consultant/C.A. for filling on 27.09.2012. The return was uploaded /said to be uploaded by the Tax Practitioner on 28t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmalities for filing the return it was just omitted to be uploaded by the assessee s counsel due to some technical error/confusion 12. The ld.CIT(A) has granted relief to the assessee by observing that the contentions of the appellant that it was prevented by sufficient cause from filing the return within the time specified was accepted with the following observations and findings:- 3.3. From the perusal of facts in the case of the appellant, it is apparent that claim u/s 80IA has not been allowed to the appellant on account of the fact that the return of income has not been filed as per the time allowed for filing original return of income as per section 139(1) of the Income Tax Act, 1961. However, appellant has explained that it was on account of technical reasons that the return of income was not uploaded in the system when the appellant attempted to upload the same on 29.09.2012 i.e. within the time allowed to file return of income u/s 139(1). The appellant demonstrated before me that they have filed returns for AY 2006-07 to AY 2011-12 within time allowed for filing of return and well within the due date. Appellant has stated that final computation of income was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by director of the company and management dated 25.09.2012, copy of Form No. 10CCB which is also signed and dated 25.09.2012, Form No. 29B signed and dated 25.09.2012. The appellant has also furnished copy of Form No. 26 AS evidencing payment of taxes (self assessment tax) on 27.09.2012.From the above evidences furnished, the contentions of the appellant that it was prevented by sufficient cause from filing of return within time specified is accepted. The order of the AO u/s 143(1) of the I.T. Act disallowing claim for deduction u/s 80IA on account of the fact that return of income was not filed is set aside and the claim made by the appellant in its return of income shall be considered allowable subject to examination of the claim for deduction u/s 80IA on merits, if any, by the Assessing Officer during any other proceeding as per provisions of this Act. 13. Now, we find it appropriate to consider the decision relied upon by the ld. Counsel of the assessee in the case of Dalmia Power Ltd. (supra). In this judgement, their Lordships has held that the Department was to consider the revised return filed by the assessee beyond the prescribed time limit after taking into accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee did not file return of income for the year under consideration either originally or pursuant to notice u/s 148. Computation of income was filed during the course of assessment proceedings in which the deduction u/s 80P was claimed. Whereas, the authorities below have canvassed a view that the assessee violated section 80A(5) and hence the deduction was not available; the assessee has made out a case that section 80A(5) does not apply where no return is furnished and rather it is section 80AC which would govern the case and because of omission of section 80P in the list of sections given in section 80AC, the deduction should be granted. In order to appreciate the contention of the ld. AR, it would be apposite to reproduce section 80AC, before its substitution by the Finance Act, 2018 w.e.f 1.4.2018, which reads as under: Where in computing the total income of an assessee of any previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-IA or section 80- IAB or section 80-IB or section 80- IC or section 80-ID or section 80-IE, no such deduction shall be allowed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 80-ID or 80-IE is that such deduction must be claimed in a return filed u/s 139(1) of the Act. In one sense, section 80AC is an exception to section 80A(5), making the mandate of the latter section more stringent in the prescribed cases. Whereas other deductions of Part C of Chapter VI-A, including section 80P, can be claimed in the return filed under any section, including section 139(4); the six deductions as referred to in section 80AC must necessarily be claimed in the return filed u/s 139(1) only. Ex consequent, the contention that since section 80P is not covered under section 80AC, the deduction under this section becomes automatically allowable without adhering to the requirement of section 80A(5), is bereft of force and hence dismissed. 10. Now I advert to the requirements of section 80A(5), which stipulates that no deduction under other sections including 80P shall be allowed if the assessee fails to make such a claim in the return of income. Thus, there are twin conditions, viz., first, claiming deduction u/s 80P and second, claiming such deduction in the return of income. There is no dispute on the first condition, which has been satisfied in this case as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee complied with the same before completion of assessment, deduction under s. 80J, on the basis of such report, was allowable. 12. Recently, the Hon'ble Supreme Court was confronted with the claim of benefit u/s 10B in Pr.CIT vs. Wipro Limited (2022) 446 ITR 1 (SC). The assessee furnished original return taking the benefit of section 10B and did not carry forward the loss. Thereafter, a revised return was filed foregoing the claim of deduction u/s 10B. The AO rejected the withdrawal of exemption under Section 10B by holding that assessee did not furnish the necessary declaration in writing before due date of filing return of income, which was an essential requirement for not claiming the benefit of section 10B. The Hon'ble High Court decided the issue in favour of the assessee by holding that the requirement of filing the declaration was mandatory but filing it along with the return of income u/s 139(1) was a directory requirement. The matter was brought by the Revenue before the Hon'ble Supreme Court. The assessee, inter alia, relied on the judgment of the Apex Court in G.M. Knitting Industries (supra). Their Lordships held that the requirement of filing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the assessee's claim of deduction u/s 80P only on the ground that such a claim was not made in the return but during the course of assessment proceedings. The impugned order is ergo set aside and the matter is remitted to the file of the AO for examining the claim of deduction u/s 80P on merits. 16. In view of the foregoing, first of all, from the proposition rendered by ITAT, Pune Bench in the case Krushi Vibhag Karmchari Vrund Sahakari Pat Sanstha vs. ITO (supra), we respectfully note that the coordinate Bench of the Tribunal, after considering the proposition rendered by the Hon ble Supreme Court in the cases of G.M. Knitting Industries (supra) and Wipro Ltd. (supra) held that the Chapter III and Chapter VI-A of the Act operate in different realms and principles of chapter III, which deals with incomes which did not form part of total income cannot be equated with mechanism provided for deductions in Chapter VI-A which deals with deductions to be made in computing the total income. Therefore, it was held that the fulfillment of requirement for making a claim of exemption under the relevant sections of Chapter III in the return of income is mandatory, but, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is claiming deduction u/s 80IA of the Act, therefore, the same would be governed by the proposition rendered by the Hon ble Supreme Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), as per which the making of a claim of deduction is mandatory, but, timing is directory. Even if the claim is made during the assessment proceedings, such a claim is to be allowed. In view of the above, we are inclined to hold that the AO was not right in holding that the assessee is not entitled to claim deduction u/s 80IA(4) of the Act on account of belated filing of return beyond the prescribed time limit u/s 139(1) of the Act. The ld.CIT(A) was justified and correct in holding that the assessee is entitled to claim deduction u/s 80IA(4) of the Act as it was prevented by sufficient cause in filing the return of income within the prescribed time limit. In view of the proposition rendered by the Hon ble Supreme Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), the claim of the assessee has reached to a higher pedestal because the Hon ble Supreme Court has categorically held that for making a claim under Chapter VI-A of the Act which also includes provision of deduction u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any other statutory body for providing such facilities. ii) On facts in the circumstances of the case the Ld.(Appeals) has erred in deleting the addition of Rs.4,12,98,981/- made on account of disallowance of deduction U/s 80IA of the Act even though the assessee is only engaged in the business of treating bio-medical waste, which is not covered in the definition of infrastructure facility as per explanation to 80IA(4) of the Act. iii) On facts in the circumstances of the case the Ld. CIT (Appeals) has erred in deleting the addition of Rs.4,12,98,981/- made on account of disallowance of deduction U/s 80IA of the Act even though the assessee has been paying rent for Plant Machinery, which shows that the facility is not owned by the assessee. iv) The appellant craves leave to add, amend or modify the grounds of appeal subsequently during the pendency of the appeal. 21. The ld. Sr. DR submitted that the ld.CIT(A) has erred in deleting the addition made on account of disallowance of deduction u/s 80IA of the Act even though the assessee does not fulfill the conditions laid down for claim of such deduction. He further explained that the assessee is not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate order and submitted that the engagement of the assessee in treatment of bio medical waste constitute maintaining or developing of infrastructural facility with respect to solid waste management system and the same is eligible infrastructure facility as per provisions of section 80IA of the Act. 23. He further submitted that even, in absence of any specific agreement, the business operation/action of the assessee are required to be seen with respect to performance of the terms of agreement as well as conditions prescribed by the authority with which agreement has been entered into. The ld. Counsel also submitted that it is a glaring fact that the assessee is working under the contract means that the assessee has got contract for supervision of operation and maintenance. The ld. Counsel also submitted that the AO has not controverted a very relevant fact that the assessee has set up bio medical waste facility and the provision of section 80IA(4) of the Act do not put any bar or monetary restriction regarding investment required to be set up eligible infrastructural facility. The ld. Counsel submitted that the assessee has undertaken contract work relating to bio m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully considered the above facts of the case, reasons as to why AO has disallowed deduction u/s 80LA as well as submissions made by the appellant in this regard. The first ground on which AO has denied deduction u/s 80IA to the appellant after quoting definition of 'Infrastructure Facility' as per Explanation to section 80IA(4), AO held that definition of 'Infrastructure Facility' means ..'Solid Waste Management System'. The Bio- Medical Waste Treatment Plant of-the appellant does not come within the meaning of Solid Waste Management System.' The deduction u/s 80IA is available in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development etc. The conditions for claiming deduction u/s 80IA(4) are as under: (i) Any enterprise carrying on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility which fulfils all the following conditions, namely:- (a) It is Owned by a company registered in India or by a consortium of such companies or by an authority or a board or a corporation or any other body established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act with blood and body fluids. and laboratory waste that exhibits the characteristics described above. Waste sharps include potentially contaminated used (and unused discarded' needles, scalpels. lancets and other devices capable of penetrating skin. Biomedical waste is generated from biological and medical sources and activities, such as the diagnosis, prevention, or treatment of diseases. Common generators (or producers) of biomedical waste include hospitals health clinics, nursing homes medical research laboratories offices of physicians, dentists, and veterinarians. Home health care, and funeral homes. In healthcare facilities (i.e., hospitals , clinics doctors offices veterinary hospitals and clinical laboratories) waste with there characteristics may alternatively be called medical or clinical waste Biomedical waste is distinct from normal trash or general waste, and differs from other types of hazardous waste, such as chemical, radioactive, universal or industrial waste. Medical facilities generate waste hazardous chemicals and radio active materials. While such wastes are normally not infectious, they require proper disposal Some wastes are consderedmultiha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ste or processes incidental to such treatment and disposal is carried out, and includes common bio-medical waste treatment facilities; 5.5 The Govt. of India, Ministry of Environment, Forest and Climate Change notified the Solid Waste Management Rules, 2016 on in which Solid Waste has been defined as under: ' 'Solid Waste means and includes solid or semi-solid domestic waste, sanitary waste, commercial waste, institutional waste, catering and market waste and other non residential wastes, street sweepings, silt removed or collected from the surface drains, horticulture waste, agriculture and dairy waste, treated bio-medical waste excluding industrial waste, bio-medical waste and e-waste, battery waste, radio- active waste generated in the area under the local authorities and other entities mentioned in rule 2 Regarding application of the said Rules, section 2 of the said Rules state as under: Application.- These rules shall. apply to every urban local body, outgrowths in urban agglomerations, census towns as declared by the Registrar General and Census Commissioner of India, notified areas, notified industrial townships, areas under the control of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal Waste includes Solid Waste. It is only the nature of Bio Medical Waste that requires separate treatment. The legislature while granting tax holiday for infrastructure facilities explained vide Departmental Circular No. 14 of 2001 the need for investment in infrastructure facility 47.2 Investments in infrastructure have to compete with investment in other sector to be attractive. There is, in particular, a need to encourage investment in the area of surface transport, water supply, water treatment system, irrigation project, sanitation and sewerage system or solid waste management systems. With this in view, section 80-1A has been amended to relax the existing two tier benefit to provide a ten year tax holiday. Keeping in view, their capital intensive nature, the higher allowances of depreciation in the initial years to such enterprises and the need for improved cash flows, an infrastructure facility in the nature of a road (including a toll road), bridge, rail system, highway project, water supply project, sanitation, sewerage, and solid waste management system shall be allowed a ten year tax holiday. 5.7 The IT AT in the case Of E.A. Infrastructure Operations vs. Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re be subject to installation, un-instaNation and transportation to some other place. The quantity of investment. i.e. the amount invested in the setting up of Bio Medical Waste treatment facility as well as the nature: of investment in systems such as Incinerator, Autoclave, Microwave System etc. does not per-se make the investment ineligible for qualification for deduction u/s 80IA. It is therefore held that the objection of the AO regarding quantity of investment and nature of equipment for setting up of Bio Medical Waste treatment facility is not correct and it is therefore held that the appellant has invested in eligible business which is eligible for deduction 80IA. 7 The third objection of the AO is with regard to the permission obtained by the appellant regarding 'operating and maintaining' 'infrastructure facility'. According to the AO, appellant was required to carry out 'operation and maintenance' of the facility as per authorization obtained from Slate Pollution Control Board. The authority from whom such permission/authorization for 'operating end maintaining' 'infrastructure facility' should be Central Government, State Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by section 80IA(4). The agreement has not been entered into with Project Director, UP Health System Development Project in capacity has State Government/local bodies. The Project Director, UP Health System Development Project is neither Central Govt., nor State Govt. nor Local Authority. The agreement dated 01.04.2009 between appellant and General Hospital Trauma Centre, Sirsa is for deciding commercial rates and other terms and conditions for treating bio-medical waste of HCEs by the appellant on outsourcing basis. The agreement does not have any of the elements envisaged by section 80IA(4). The agreement has not been entered into with General Hospital Trauma Centre, Sirsa in the capacity of State Government or local body. The General Hospital Trauma Centre, Sirsa is neither Central Govt., nor State Govt. nor Local Authority. The AO has held that the decision of ITA T Ahemdabad in the case of En-Vision Enviro Engineers (P) Ltd. 150 TTJ 621 (Ahd) is not applicable to the facts of the case of the appellant as in that case M/S EEEPL had an agreement of BOOT with Surat Municipal Corporation and issue was whether EEEPL was a 'contractor' or 'developer'. Since the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirements of Section 8014(A)(i) 7. Now, we proceed to the next issue, whether in the absence of specific agreement With the Central/State Government, local authority or Statutory Body, the assessee is entitled to claim the benefit of section The assessee had made an application for setting up of CFS at Haldia. In response to the application of the assessee, the Department of Commerce, Infrastructure Division, Ministry of Commerce and Industry approved the proposal of the assessee for setting up of CFS at Haldia for handling of cargo subject to execution of certain documents and compliance of other terms and conditions as staled in the letter ..8. Thus, it is evident that the proposal of the assessee was accepted by the Government on certain conditions which were duly complied which were duly complied with by the assessee. There may not be any specific agreement. but the sequences of events clearly show that the assessee is providing CFS facility in accordance with the conditions laid down by the Government In such circumstances there is no need to insist for the specific execution q/ agreements. The co-ordinate bench of the Tribunal in the case of United Liner A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Bombay in CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (2015) 58 taxmann.com 78 (Bom). In that Case also, AO had denied deduction u/s 80IA(4) on the ground that there was no specific agreement with the Central Govt., State Govt. Or the Local Authority. The Hon'ble High Court while answering the above question held as under: 46. We have found that there is a specific reference made by the Delhi High Court to the communication dated 241)' April, 2007, from the Government of India, Ministry Of Finance, Department of Revenue. These are then classified as inland ports and categorised accordingly. There is a further communication from the Ministry of Commerce and Industry as well. We do not find that a view different than the one taken by Delhi High Court is possible. Bearing in mind the facilities that are extended and for purposes of loading, unloading, storage and warehousing of the goods that the facility is a infrastructure facility. That it has easy accessibility to the port and particularly the sea-port gives it certain advantages and benefits and which clearly accrue to those using the port for import and export of cargo. Further, the loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 has held that contract for award of project for Bio Medical Waste treatment at GTB Hospital by Municipal Corporation of Greater Mumbai was eligible for deduction u/s 80IA of the I.T. Act, 1961. ITAT Ahmedabad in the case of En-Vision Enviro Engineers (P) Ltd. TTJ 621 (Ahd) has held that merely mentioning the assessee in the agreement as contractor does not alter the exact nature of execution of the work. On the issue regarding eligibility of assessee for deduction u/s 80IA(4), the ITAT has observed as under: Provisions of section 80-1A Section 80-IA(I) prescribes that in respect of profits and gains from an industrial undertaking engaged in infrastructure development, a deduction of an amount equal to 100 per cent of {he profits shall be allowed. Section 80-IA(4) prescribes that an enterprise carrying on the business of (i) developing or (ii) operating and maintaining or (iii) developing operating and maintain any infrastructure facility'. Shall qualify for the deduction. This sub-section says that the enterprise has to enter into an agreement with the Government, either Central or State, for developing or operating and maintenance or developing, operating and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall be paid for the treatment and the disposal of the waste in accordance with the tender and letter of indent for that purpose. a provision has been made for the execution of a separate agreement with [he medical college. One oi the clauses says that the treated biomedical waste shall he disposed-off along with other municipal solid waste. The transportation of the waste is to he carried out by the assessee. The clauses have also provided that collection, transportation, storage and disposal of biomedical waste within specified time shall be the responsibility of the assessee. The assessee has been entitled to use or sale any of the bio-product. [Para 7.2] Terms and conditions of agreement dared 14-11-2002 From an examination of the other agreement dated 14-11-2002 it is apparent that for the removal and disposal of,refuse rubbish and garbage of various hospitals, clinics, nursing homes in Surat it was required by the municipal corporation to handle and manage the same, hence, invited Boot Tender. The assessee has offered and on a token rent of Re. 1 per square meter per annum, the said agreement was entered into for seven years. The assessee is to make the constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has carried out contract work relating to Bio Medical Waste disposal and treatment as per terms and conditions entered into with various authorities as mentioned in the order above. Tt is not the case of the AO that any of the prescribed conditions have not been met or else the appellant has not carried out work relating to Bio Medical Waste treatment in accordance with the terms and conditions prescribed. it is therefore held that the infrastructure facility setup by the appellant in the form of Bio Medical Waste Treatment Plant is entitled to deduction u/s 80IA of the I.V. Act. 27. On careful consideration of the rival submissions, first of all, we note that the ld. Counsel of the assessee, during the arguments submitted copy of the order of ITAT, G Bench reported as (2017) 88 taxmann.com 405 (Del. Trib) in assessee s own case named as Synergy Waste Management Pvt. Ltd. vs. ACIT, wherein the Tribunal held that where the AO had specifically allowed the claim u/s 80IA(4) after reducing it by other income not being eligible for claim of deduction, the provisions of section 263 of the Act could not be invoked on the ground that there had been no application of mind by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction of Rs.1,66,73,315/-and other income of Rs.6,03,245/-is not eligible for deduction under section 80IA of the Income tax Act, 1961. However tax is chargeable under section 115 JB (MAT) since tax on book profit of Rs.1,78,09,927/-is more than tax on normal income. 12. A reading of the above portion of the assessment order for AY 2009-10 makes it clear that the facts are identical for both the assessment years 2009 10 and 2010-11. In the case of assessment year 2009-10 also, Ld. ClT exercised powers under section 263 of the Act and set aside the matter to the AO with similar observations as those for assessment year 2010-11. A reading of the order dated 30/05/2016 in ITA No. 2560/Del/2015 passed by a coordinate bench of this Tribunal shows that the grounds on which the learned CIT revised the orders are not tenable and such an exercise was blatantly illegal and liable to be crashed. For the assessment year 2010-11 also CIT revised the assessment order on almost similar grounds like the order passed by the assessing officer is without determination of total income and tax payable, learned assessing officer had not made proper enquiry etc. 13. Facts being continued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical waste and also considered the Bio-medical Waste Management Rules, 2016 and Notification dated 08.04.2016. After analysing the Solid Waste Management Rules, 2016, the ld. CIT(A) proceeded to consider the proposition rendered by the ITAT, Mumbai Bench in the case of ITO vs. EA Infrastructure Operations Pvt. Ltd., order dated 09.07.2010 and also adjudicated the objections raised by the AO in dismissing the claim of deduction u/s 80IA of the Act by the assessee. The ld.CIT(A), in para 7.3 considered the proposition rendered by the Hon ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra) and also considered the proposition rendered by the coordinate Bench of the ITAT, Ahmedabad in the case of En-Vision Enviro Engineers (P) Ltd., 150 TTJ 621 (Ahd). The ld.CIT(A) finally held that the engagement of the assessee in the treatment of bio-medical waste constitutes maintaining or developing of infrastructural facility with respect to solid waste management system which is an eligible infrastructural facility as per the provisions of section 80IA(4). 29. He also concluded that in absence of specific agreement, the actions of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsistent orders for AYs 2009-10 and 2010-11 dated 30.05.2016 and 24.04.2018 respectively, has held that the Revenue does not bring to the notice of the Bench any change of circumstances for AY 2009-10, 2010-11 to 2013-14 and 2010-11 and the facts being continued to be identical and similar. Therefore, after allowing appeal of the assessee against the order of CIT, Hisar for AY 2009-10 and 2010-11, we safely presume that the assessment order allowing claim u/s 80IA of the Act has been upheld by the Tribunal setting aside the report of the action u/s 263 of the Act. On being asked by the Bench, the ld. Sr. DR could not assist us as to whether any appeal has been filed by the Department against the said orders of the Tribunal and these orders have been set aside or modified in any manner. In view of the foregoing, we reach to a final logical conclusion that there is no ambiguity, perversity or any other valid reason to interfere with the findings arrived at by the ld. CIT(A) and, therefore, we uphold the same. Consequently, the appeal of the Revenue for AY 2012-13 being devoid of merits is dismissed. 31. Since, in the beginning of the hearing, the ld. Representatives of both the si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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