M/s S.C.C. Projects P Ltd, v. The A C I T 3 (1),

ITA 127/IND/2009 | 2005-2006
Pronouncement Date: 07-05-2010 | Result: Dismissed

Appeal Details

RSA Number 12722714 RSA 2009
Assessee PAN CEACT2009W
Bench Indore
Appeal Number ITA 127/IND/2009
Duration Of Justice 1 year(s) 1 month(s) 25 day(s)
Appellant M/s S.C.C. Projects P Ltd,
Respondent The A C I T 3 (1),
Appeal Type Income Tax Appeal
Pronouncement Date 07-05-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 07-05-2010
Date Of Final Hearing 07-05-2010
Next Hearing Date 07-05-2010
Assessment Year 2005-2006
Appeal Filed On 12-03-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER ITA NO.127/IND/2009 A.Y. 2005-06 SCC PROJECTS PRIVATE LIMITED FORMERLY KNOWN AS M/S BIAORA CONSTRUCTION PVT. LTD. INDORE PAN AABCM-3529L . APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 3(1) INDORE . RESPONDENT APPELLANT BY : SHRI C.P. RAWKA RESPONDENT BY : SHRI K.K. SINGH O R D E R PER JOGINDER SINGH JM THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-I INDORE DATED 12.1.2009 ON THE GROUND THA T LD. FIRST APPELLATE AUTHORITY ERRED IN LAW AND ON FACTS IN CONFIRMING T HE DISALLOWANCE MADE U/S 80IA AT RS.60 60 548/- WITHOUT CONSIDERING THE FULL FACTS AND THE LEGAL POSITION. DURING HEARING OF THIS APPEAL WE HAVE H EARD SHRI C.P.RAWKA LD. COUNSEL FOR THE ASSESSEE AND SHRI K.K. SINGH L EARNED CIT DR. AT 2 THE OUTSET THE LEARNED CIT DR CONTENDED THAT IN VI EW OF THE AMENDMENT MADE IN THE STATUTE THE ISSUE IS TO BE DECIDED AGA INST THE ASSESSEE THEREFORE THERE IS NO INFIRMITY IN THE STAND OF TH E LEARNED CIT(A). ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESSEE DID NO T CONTROVERT THE ASSERTION OF THE LEARNED CIT DR. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE ASSESSEE IS A PRI VATE LIMITED COMPANY ENGAGED IN THE ACTIVITY OF CONSTRUCTION AT VARIOUS SITES IN MADHYA PRADESH DECLARED NIL INCOME IN ITS RETURN FILED ON 13.10.2005 WHICH WAS PROCESSED U/S 143(1) ON 15.6.2006 AND A REFUND OF R S.21 12 117/- WAS ISSUED ON 28.8.2006. THE CASE WAS SELECTED FOR SCR UTINY THEREFORE STATUTORY NOTICE U/S 143(2) WAS SERVED UPON THE ASS ESSEE TO WHICH THE ASSESSEE MADE COMPLIANCE AND ALSO FILED WRITTEN SUB MISSIONS. THE ASSESSEE CLAIMED RELIEF OF RS. 65 24 994/- U/S 80IA OF THE ACT. THE ASSESSMENT WAS COMPLETED ON A TOTAL INCOME OF RS.87 74 994/-. THE ASSESSMENT ORDER WAS CARRIED IN APPEAL BEFORE THE L EARNED COMMISSIONER OF INCOME TAX (APPEALS) WHO ALLOWED TH E RELIEF ON DISALLOWANCE OF EXPENSES BUT REJECTED THE CLAIM OF THE ASSESSEE ON THE ISSUE OF CLAIMED RELIEF U/S 80IA. THE RELEVANT FIN DING AS DETAILED IN PARA 2.1.2 OF THE IMPUGNED ORDER ARE REPRODUCED HEREUNDE R :- 3 2.1.2 I HAVE EXAMINED THE ENTIRE ISSUE. THE DEDUCTION U/S 80IA IS NO LONGER MEANT FOR CONTRACTO RS BE IT THE WORK FOR UPGRADATION OR NEW CONSTRUCTION WORK. THE PROVISION IS TO PROVIDE INCENTIVES WHO ARE DEVELOPING MAINTAINING AND OPERATING NEW INFRASTRU CTURAL FACILITIES (INCLUDING ROADS) SUCH AS THE WORK TAKEN BY ANY ENTERPRISE UNDER BOT (BUILT OPERATE & TRANSFER) SCHEME. IN THAT CASE THE FUND IS NOT PROVIDED BY T HE GOVERNMENT OR ITS AGENCIES. RATHER THE REQUIRED FU NDS ARE MET BY THE ENTERPRISE ITSELF AND IN THAT SITUAT ION THE ENTERPRISE IS AUTHORISED TO CHARGE TOLL TAX WHILE MAINTAINING AND OPERATING SUCH ROADS UPTO CERTAIN P ERIOD (AS PER THE AGREEMENT WITH THE GOVERNMENT) TO RECOV ER ITS COST. THE INCOME EARNED THEREAT IS SUBJECT TO DEDUCTION U/S 80IA FOR SPECIFIED NUMBER OF YEARS. T HE OWNERSHIP OVER SUCH PROJECTS ARE THEREAFTER TRANSFE RRED TO THE GOVERNMENT AFTER THE SAID PERIOD. IN ORDER TO M AKE THIS POINT CLEAR IT IS ESSENTIAL TO REPRODUCE THE PROVISIONS OF SECTION 80- IA. BEFORE COMING TO ANY CONCLUSION WE ARE REPRODUCING HEREUNDER SECTION 80-IA(4) OF THE ACT :- 80-IA. 33 [(1) WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE INCLUDES ANY PROFITS AND GAINS DERIVED BY AN UNDERT AKING OR AN ENTERPRISE FROM ANY BUSINESS REFERRED TO IN SUB-SEC TION (4) (SUCH BUSINESS BEING HEREINAFTER REFERRED TO AS THE ELIGIBLE BUSINESS) THERE SHALL IN ACCORDANCE WITH AND SUBJ ECT TO THE PROVISIONS OF THIS SECTION BE ALLOWED IN COMPUTIN G THE TOTAL INCOME OF THE ASSESSEE A DEDUCTION OF AN AMOUNT EQ UAL TO HUNDRED PER CENT OF THE PROFITS AND GAINS DERIVED F ROM SUCH BUSINESS FOR TEN CONSECUTIVE ASSESSMENT YEARS.] XXX XXX XXX (4)] WHICH FULFILS ALL THE FOLLOWING CONDITIONS N AMELY : ( I ) IT IS NOT FORMED BY SPLITTING UP OR THE RECONSTR UCTION OF A BUSINESS ALREADY IN EXISTENCE : PROVIDED THAT THIS CONDITION SHALL NOT APPLY IN RESPECT OF AN 44 [UNDERTAKING] WHICH IS FORMED AS A RESULT OF THE RE-ESTABLISHMENT RECONSTRUCTION OR REVIVAL BY THE ASSESSEE OF THE BUSINESS OF ANY SUCH 44 [UNDERTAKING] AS IS REFERRED TO IN SECTION 33B IN THE CIRCUMSTANCES AND WITHIN THE PERIOD SPECIFIED IN THAT SECTION; 4 ( II ) IT IS NOT FORMED BY THE TRANSFER TO A NEW BUSINES S OF MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE: 45 [ PROVIDED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY IN THE CASE OF TRANSFER EITHER IN WHOLE OR I N PART OF MACHINERY OR PLANT PREVIOUSLY USED BY A STATE ELECT RICITY BOARD REFERRED TO IN CLAUSE ( 7 ) OF SECTION 2 OF THE ELECTRICITY ACT 2003 (36 OF 2003) WHETHER OR NOT SUCH TRANSFER IS IN PU RSUANCE OF THE SPLITTING UP OR RECONSTRUCTION OR REORGANISATIO N OF THE BOARD UNDER PART XIII OF THAT ACT.] EXPLANATION 1. FOR THE PURPOSES OF CLAUSE ( II ) ANY MACHINERY OR PLANT WHICH WAS USED OUTSIDE INDIA BY ANY PERSON OTHER THAN THE ASSESSEE SHALL NOT BE REGARDED AS MACHINERY OR PLANT PREVIOUSLY USED FOR ANY PURPOSE IF THE FOLLOWING C ONDITIONS ARE FULFILLED NAMELY : ( A ) SUCH MACHINERY OR PLANT WAS NOT AT ANY TIME PREVIOUS TO THE DATE OF THE INSTALLATION BY THE ASS ESSEE USED IN INDIA; ( B ) SUCH MACHINERY OR PLANT IS IMPORTED INTO INDIA FROM ANY COUNTRY OUTSIDE INDIA; AND ( C ) NO DEDUCTION ON ACCOUNT OF DEPRECIATION IN RESPECT OF SUCH MACHINERY OR PLANT HAS BEEN ALLOWED OR IS ALLOWABLE UNDER THE PROVISIONS OF THIS ACT IN COMPU TING THE TOTAL INCOME OF ANY PERSON FOR ANY PERIOD PRIOR TO THE DATE OF THE INSTALLATION OF MACHINERY OR PLANT BY THE ASSES SEE. EXPLANATION 2. WHERE IN THE CASE OF AN 46 [UNDERTAKING] ANY MACHINERY OR PLANT OR ANY PART THEREOF PREVIOUSLY U SED FOR ANY PURPOSE IS TRANSFERRED TO A NEW BUSINESS AND THE TO TAL VALUE OF THE MACHINERY OR PLANT OR PART SO TRANSFERRED DOES NOT EXCEED TWENTY PER CENT OF THE TOTAL VALUE OF THE MACHINERY OR PLANT USED IN THE BUSINESS THEN FOR THE PURPOSES OF CLA USE ( II ) OF THIS SUB-SECTION THE CONDITION SPECIFIED THEREIN SHALL BE DEEMED TO HAVE BEEN COMPLIED WITH. (4) THIS SECTION APPLIES TO ( I ) ANY ENTERPRISE CARRYING ON THE BUSINESS 47 [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 48 [OR BY AN AUTHORITY OR A BOARD OR A CORPORA-TION OR ANY OTHER BODY ESTABLISH ED OR CONSTITUTED UNDER ANY CENTRAL OR STATE ACT;] 49 [( B ) IT HAS ENTERED INTO AN AGREEMENT WITH THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT OR A LOCAL AUTHORI TY OR ANY OTHER STATUTORY BODY FOR ( I ) DEVELOPING OR ( II ) OPERATING AND MAINTAINING OR ( III ) DEVELOPING OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY;] 5 ( C ) IT HAS STARTED OR STARTS OPERATING AND MAINTAININ G THE INFRASTRUCTURE FACILITY ON OR AFTER THE 1ST DAY OF APRIL 1995: PROVIDED THAT WHERE AN INFRASTRUCTURE FACILITY IS TRANSFERRED ON OR AFTER THE 1ST DAY OF APRIL 1999 BY AN ENTERPRISE WHICH DEVELOPED SUCH INFRASTRUCTURE FACI LITY (HEREAFTER REFERRED TO IN THIS SECTION AS THE TRANS FEROR ENTERPRISE) TO ANOTHER ENTERPRISE (HEREAFTER IN THIS SECTION RE FERRED TO AS THE TRANSFEREE ENTERPRISE) FOR THE PURPOSE OF OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON ITS BEHA LF IN ACCORDANCE WITH THE AGREEMENT WITH THE CENTRAL GOVE RNMENT STATE GOVERNMENT LOCAL AUTHORITY OR STATUTORY BODY THE PROVISIONS OF THIS SECTION SHALL APPLY TO THE TRANS FEREE ENTERPRISE AS IF IT WERE THE ENTERPRISE TO WHICH TH IS CLAUSE APPLIES AND THE DEDUCTION FROM PROFITS AND GAINS WO ULD BE AVAILABLE TO SUCH TRANSFEREE ENTERPRISE FOR THE UNE XPIRED PERIOD DURING WHICH THE TRANSFEROR ENTERPRISE WOULD HAVE B EEN ENTITLED TO THE DEDUCTION IF THE TRANSFER HAD NOT TAKEN PLA CE. 50 [ EXPLANATION .FOR THE PURPOSES OF THIS CLAUSE INFRASTRUCTURE FACILITY MEANS ( A ) A ROAD INCLUDING TOLL ROAD A BRIDGE OR A RAIL SYSTEM; ( B ) A HIGHWAY PROJECT INCLUDING HOUSING OR OTHER ACTIVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PR OJECT; ( C ) A WATER SUPPLY PROJECT WATER TREATMENT SYSTEM IRRIGATION PROJECT SANITATION AND SEWERAGE SYSTEM OR SOLID WASTE MANAGEMENT SYSTEM; ( D ) A PORT 51 AIRPORT INLAND WATERWAY 52 [ INLAND PORT OR NAVIGATIONAL CHANNEL IN THE SEA];] 53 [( II ) ANY UNDERTAKING WHICH HAS STARTED OR STARTS PROVIDING TELECOMMUNICATION SERVICES WHETHER BASIC OR CELLULAR INCLUDING RADIO PAGING DOMESTIC SATELLIT E SERVICE NETWORK OF TRUNKING BROADBAND NETWORK AND INTERNET SERVICES ON OR AFTER THE 1ST DAY OF APRIL 1995 BUT ON OR B EFORE THE 31ST DAY OF MARCH 54 [2005].] EXPLANATION. FOR THE PURPOSES OF THIS CLAUSE DOMESTIC SATELLITE MEANS A SATELLITE OWNED AND OP ERATED BY AN INDIAN COMPANY FOR PROVIDING TELECOMMUNICATION SERV ICE; ( III ) ANY UNDERTAKING WHICH DEVELOPS DEVELOPS AND OPERATES OR MAINTAINS AND OPERATES AN INDUSTRIAL PA RK 55 [OR SPECIAL ECONOMIC ZONE] NOTIFIED 56 BY THE CENTRAL GOVERNMENT IN ACCORDANCE WITH THE SCHEME FRAMED 56 AND NOTIFIED 57 BY THAT GOVERNMENT FOR THE PERIOD BEGINNING ON THE 1ST DAY OF APRIL 1997 AND ENDING ON THE 31ST DAY OF MARCH 58 [2006] : 59 [ PROVIDED THAT IN A CASE WHERE AN UNDERTAKING DEVELOPS AN INDUSTRIAL PARK ON OR AFTER THE 1ST DAY OF APRIL 1999 OR A SPECIAL ECONOMIC ZONE ON OR AFTER THE 1ST DAY OF 6 APRIL 2001 AND TRANSFERS THE OPERATION AND MAINTEN ANCE OF SUCH INDUSTRIAL PARK OR SUCH SPECIAL ECONOMIC ZONE AS THE CASE MAY BE TO ANOTHER UNDERTAKING (HEREAFTER IN THIS S ECTION REFERRED TO AS THE TRANSFEREE UNDERTAKING) THE DED UCTION UNDER SUB-SECTION (1) SHALL BE ALLOWED TO SUCH TRANSFEREE UNDERTAKING FOR THE REMAINING PERIOD IN THE TEN CONSECUTIVE ASS ESSMENT YEARS AS IF THE OPERATION AND MAINTENANCE WERE NOT SO TRANSFERRED TO THE TRANSFEREE UNDERTAKING : 60 [ PROVIDED FURTHER THAT IN THE CASE OF ANY UNDERTAKING WHICH DEVE-LOPS DEVELOPS AND OPERATES OR MAINTAINS AND OPERATES AN INDUSTRIAL PARK THE PROV ISIONS OF THIS CLAUSE SHALL HAVE EFFECT AS IF FOR THE FIGURES LET TERS AND WORDS 31ST DAY OF MARCH 2006 THE FIGURES LETTERS AND WORDS 31ST DAY OF MARCH 60A [ 2011 ] HAD BEEN SUBSTITUTED;] ( IV ) AN 61 [UNDERTAKING] WHICH ( A ) IS SET UP IN ANY PART OF INDIA FOR THE GENERATION OR GENERATION AND DISTRIBUTION OF POWER IF IT BEGIN S TO GENERATE POWER AT ANY TIME DURING THE PERIOD BEGINNING ON TH E 1ST DAY OF APRIL 1993 AND ENDING ON THE 31ST DAY OF MARCH 62 [ 2011 ] ; ( B ) STARTS TRANSMISSION OR DISTRIBUTION BY LAYING A NETWORK OF NEW TRANSMISSION OR DISTRIBUTION LINES A T ANY TIME DURING THE PERIOD BEGINNING ON THE 1ST DAY OF APRIL 1999 AND ENDING ON THE 31ST DAY OF MARCH 62 [ 2011 ] : PROVIDED THAT THE DEDUCTION UNDER THIS SECTION TO AN 63 [UNDERTAKING] UNDER SUB-CLAUSE ( B ) SHALL BE ALLOWED ONLY IN RELATION TO THE PROFITS DERIVED FROM LAYING OF SUCH NETWORK OF NEW LINES FOR TRANSMISSION OR DISTRIBUTI ON; 64 [( C ) UNDERTAKES SUBSTANTIAL RENOVATION AND MODERNISATION OF THE EXISTING NETWORK OF TRANSMISSI ON OR DISTRIBUTION LINES AT ANY TIME DURING THE PERIOD BE GINNING ON THE 1ST DAY OF APRIL 2004 AND ENDING ON THE 31ST D AY OF MARCH 65 [ 2011 ] . EXPLANATION. FOR THE PURPOSES OF THIS SUB- CLAUSE SUBSTANTIAL RENOVATION AND MODERNISATION MEANS AN INCREASE IN THE PLANT AND MACHINERY IN THE NETWORK OF TRANSMISSION OR DISTRIBUTION LINES BY AT LEAST FIFT Y PER CENT OF THE BOOK VALUE OF SUCH PLANT AND MACHINERY AS ON THE 1S T DAY OF APRIL 2004;] 66 [( V ) AN UNDERTAKING OWNED BY AN INDIAN COMPANY AND SET UP FOR RECONSTRUCTION OR REVIVAL OF A POWER GENERATING PLANT IF ( A ) SUCH INDIAN COMPANY IS FORMED BEFORE THE 30TH DAY OF NOVEMBER 2005 WITH MAJORITY EQUITY PARTICIP ATION BY PUBLIC SECTOR COMPANIES FOR THE PURPOSES OF ENFORCI NG THE SECURITY INTEREST OF THE LENDERS TO THE COMPANY OWN ING THE POWER GENERATING PLANT AND SUCH INDIAN COMPANY IS N OTIFIED 67 7 BEFORE THE 31ST DAY OF DECEMBER 2005 BY THE CENTRA L GOVERNMENT FOR THE PURPOSES OF THIS CLAUSE; ( B ) SUCH UNDERTAKING BEGINS TO GENERATE OR TRANSMIT OR DISTRIBUTE POWER BEFORE THE 31ST DAY OF MARCH 68 [ 2011 ] ;] 69 [ 69A [ ( VI ) ANY UNDERTAKING CARRYING ON THE BUSINESS OF LAYING AND OPERATING A CROSS-COUNTRY NA TURAL GAS DISTRIBUTION NETWORK INCLUDING PIPELINES AND STORA GE FACILITIES BEING AN INTEGRAL PART OF SUCH NETWORK WHICH FULFI LS THE FOLLOWING CONDITIONS NAMELY: ( A ) IT IS OWNED BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM OF SUCH COMPANIES OR BY AN AUTHORIT Y OR A BOARD OR A CORPORATION ESTABLISHED OR CONSTITUTED U NDER ANY CENTRAL OR STATE ACT; ( B ) IT HAS BEEN APPROVED BY THE PETROLEUM AND NATURAL GAS REGULATORY BOARD ESTABLISHED UNDER SUB- SECTION (1) OF SECTION 3 OF THE PETROLEUM AND NATURAL GAS R EGULATORY BOARD ACT 2006 (19 OF 2006) AND NOTIFIED BY THE CE NTRAL GOVERNMENT IN THE OFFICIAL GAZETTE; ( C ) ONE-THIRD OF ITS TOTAL PIPELINE CAPACITY IS AVAILABLE FOR USE ON COMMON CARRIER BASIS BY ANY PE RSON OTHER THAN THE ASSESSEE OR AN ASSOCIATED PERSON; ( D ) IT HAS STARTED OR STARTS OPERATING ON OR AFTER TH E 1ST DAY OF APRIL 2007; AND ( E ) ANY OTHER CONDITION WHICH MAY BE PRESCRIBED. EXPLANATION. FOR THE PURPOSES OF THIS CLAUSE AN ASSOCIATED PERSON IN RELATION TO THE ASSESSEE MEANS A PERSON ( I ) WHO PARTICIPATES DIRECTLY OR INDIRECTLY OR THROUGH ONE OR MORE INTERMEDIARIES IN THE MANAGEMEN T OR CONTROL OR CAPITAL OF THE ASSESSEE; ( II ) WHO HOLDS DIRECTLY OR INDIRECTLY SHARES CARRYING NOT LESS THAN TWENTY-SIX PER CENT OF THE V OTING POWER IN THE ASSESSEE; ( III ) WHO APPOINTS MORE THAN HALF OF THE BOARD OF DIRECTORS OR MEMBERS OF THE GOVERNING BOARD OR ONE OR MORE EXECUTIVE DIRECTORS OR EXECUTIVE MEMBERS OF THE GOV ERNING BOARD OF THE ASSESSEE; OR ( IV ) WHO GUARANTEES NOT LESS THAN TEN PER CENT OF THE TOTAL BORROWINGS OF THE ASSESSEE. ] ] EXPLANATION. FOR THE REMOVAL OF DOUBTS IT IS HEREBY DECLARED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY IN RELATION TO A BUSINESS REFERRED TO IN SUB-SECTION (4) WHICH IS IN THE NATURE OF A WORKS CONTRACT AWARDED BY ANY P ERSON 8 (INCLUDING THE CENTRAL OR STATE GOVERNMENT) AND EXE CUTED BY THE UNDERTAKING OR ENTERPRISE REFERRED TO IN SUB-SE CTION (1). ] IF THE AFORESAID PROVISION OF LAW IS ANALYSED IT C AN BE SAID THAT THE AFORESAID EXPLANATION (BOLD PORTION) WAS SUBSTITUTE D BY THE FINANCE ACT (NO. 2) ACT 2009 WITH RETROSPECTIVE EFFECT FROM 1. 4.2000 AND PRIOR TO ITS SUBSTITUTION EXPLANATION AS INSERTED BY THE FINANC E ACT 2007 WITH RETROSPECTIVE EFFECT FROM 1.4.2000 WAS AS UNDER :- EXPLANATION FOR THE REMOVAL OF DOUBTS IT IS HERE BY DECLARED THAT NOTHING CONTAINED IN THIS SECTION SHA LL APPLY TO A PERSON WHO EXECUTES A WORKS CONTRACT ENTERED INTO WITH THE UNDERTAKING OR ENTERPRISE AS THE CASE MAY BE IN THE LIGHT OF THE AFORESAID EXPLANATION SUBSTITUT ED BY FINANCE ACT 2009 WITH RETROSPECTIVE EFFECT FROM 1.4.2000 A ND THE ASSESSMENT YEAR BEFORE US BEING 2005-06 SUB-SECTION (4) HAS B EEN SPECIFICALLY EXPLAINED THAT IT SHALL NOT APPLY IN RELATION TO A BUSINESS REFERRED IN THAT SUB-SECTION WHICH IS IN THE NATURE OF WORKS CONTRAC T AWARDED BY ANY PERSON (INCLUDING THE CENTRAL OR STATE GOVERNMENT) AND EXECUTED BY THE UNDERTAKING OR ENTERPRISE REFERRED TO IN SUB-SECTIO N (1). IN SUB-SECTION (1) TO SECTION 80IA THE WORD ANY BUSINESS HAS BEE N MENTIONED BUT IN VIEW OF INSERTION OF EXPLANATION IN RESPECT TO SUB- SECTION (4) THERE IS NO INFIRMITY IN THE STAND OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THEREFORE THE IMPUGNED AMOUNT WAS RIGHT LY DISALLOWED. FINALLY THE APPEAL OF THE ASSESSEE IS DISMISSED. 9 ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF L EARNED REPRESENTATIVES FROM BOTH THE SIDES AT THE CONCLUSI ON OF THE HEARING ON 7 TH MAY 2010. (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MAY 7 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE *DN/