Navayuga - IVRCL & Sew-JV , Hyderabad v. Deputy Commissioner of Income Tax, Circle-6(1), Hyderabad

ITA 1832/Hyd/2017 | 2006-2007
Pronouncement Date: 24-05-2021 | Result: Dismissed

Appeal Details

RSA Number 183222514 RSA 2017
Assessee PAN AAAAN3846Q
Bench Hyderabad
Appeal Number ITA 1832/Hyd/2017
Duration Of Justice 3 year(s) 6 month(s) 15 day(s)
Appellant Navayuga - IVRCL & Sew-JV , Hyderabad
Respondent Deputy Commissioner of Income Tax, Circle-6(1), Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 24-05-2021
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB-A
Tribunal Order Date 24-05-2021
Date Of Final Hearing 21-04-2021
Next Hearing Date 21-04-2021
Last Hearing Date 04-09-2018
First Hearing Date 16-04-2018
Assessment Year 2006-2007
Appeal Filed On 09-11-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH HYDERABAD. BEFORE SHRI S.S. GODARA JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) ITA NO. & ASST. YEAR APPELLANT RESPONDENT 1. 1832/HYD/2017 2006 - 07 M/S. NAVAYUGA IVRCL & SEW JV 8 - 2 - 293/82A - 1259 LAKSHMI TOWERS ROAD NO.36 2136 JUBILEE HILLS HYDERABAD - 500 033 PAN AAAAN3846Q DY. COMMISSIONER OF INCOME TAX CIRCLE 6(1) HYDERABAD. 2. 2136/HYD/2017 2007 - 08 - DO - ACIT CIR.6(1) HYDERABAD. 3. 1833/HYD/2017 2008 - 09 - DO - DCIT CIRCLE 6(1) HYDERABAD. 4. 675/HYD/2016 2010 - 11 ACIT CIRCLE 14(1) HYDERABAD. M/S. NAVAYUGA IVRCL & SEW JV H YDERABAD - 500 033 5 . 1834/HYD/2017 2011 - 12 M/S. NAVAYUGA IVRCL & SEW JV H YDERABAD - 500 033 ACIT CIR.6(1) HYDERABAD. 6 . 1169/HYD/2018 2013 - 14 - DO - ITO WARD 14(1) HYDERABAD. 7 . 71/HYD/2019 2014 - 15 - DO - ACIT CIRCLE 14(1) HYDERABAD. ASSESSEE BY : SHRI MOHD. AFZAL. RESPONDENT BY : SHRI SUNIL KUMAR PANDEY (D.R.) DATE OF HEARING : 21.04. 2021. DATE OF PRONOUNCEMENT : 24 .05. 2021. 2 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . O R D E R PER S.S. GODARA J.M. : THESE ASSESSEE'S AND REVENUES APPEALS AR ISE AGAINST THE CIT(APPEALS) 12 HYDERAB A DS ORDER DT.16.08.2017 IN CASE NO .0101/2016 - 17 FOR ASSESSMENT YEAR 2006 - 07 INVOLVING PROCEEDINGS U/S. 143(3) R.W.S. 254 OF THE INCOME TAX ACT 1961 ('THE ACT'); CIT(APPEALS) - 9 HYDERAB A DS ORDER DT.24.08.2017 IN C ASE NO .0257/ACIT - 6(1)/2016 - 17 FOR ASSESSMENT YEAR 2007 - 08 IN SECTION 143(3) PROCEEDINGS; THE CIT(APPEALS) - 12 HYDERAB A DS ORDER DT.16.08.2017 PASSED IN CASE NO .0155/2016 - 17 FOR ASSESSMENT YEAR 2008 - 09 INVOLVING SECTION 143(3) R.W.S. 254 PROCEEDINGS; REVENUES APPEAL AGAINST THE CIT(A)S - 4 HYDERABDS ORDER DT.31.3.2016 IN CASE NO. 440/ADDL. RANGE - 6/14 - 15/CIT(A) - 4/HYD/15 - 16 FOR ASSESSMENT YEAR 2010 - 11 ; THE CIT(APPEALS) - 12 HYDERABADS ORDER DT.16.8.2017 PASSED IN CASE NO .0154/2016 - 17 FOR ASSESSMENT YEA R 2011 - 12 ; THE CIT(APPEALS) - 6 HYDERAB A DS ORDER DT.6.2.2018 IN CASE NO .0218/2015 - 3 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 16/B2/CIT(A) - 6 FOR ASSESSMENT YEAR 2013 - 14 IN SECTION 143(3) PROCEEDINGS AND THE CIT(APPEALS) - 6 HYDERAB A DS ORDER DT.24.10.2018 PASSED IN CASE NO .10145/2017 - 18/B3/CIT(A) - 6 F OR ASSESSMENT YEAR 2014 - 15 IN SECTION 143(3) R.W.S. 144C PROCEEDINGS RESPECTIVELY. HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. BOTH THE PARTIES SUBMITTED AT THE OUTSET THAT THE ASSESSEE'S SOLE SUBSTANTIVE GROUND RAISED HEREIN CHALLENGES C ORRECTNESS OF THE LEARNED LOWER AUTHORITIES ACTION DISALLOWING U/S. 80IA(4) DEDUCTION CLAIM(S) OF RS.16 95 430; RS.1 92 03 708; RS.1 74 69 336; RS.69 12 651; RS.3 58 92 513; RS.14 54 470 AND RS.1 07 78 405; ASSESSMENT YEAR - WISE RESPECTIVELY . A ND THAT T HIS T RIBUNALS FIRST ROUND COMBINED REMAND DIRECTION S DT.8.3.2013 IN ITA NO.517/HYD/2010 INVOLVING M/S. NEC - NCC MAYTAS JOINT VENTURE VS. ACIT AND ITS OWN APPEAL ITA 1506/HYD/2011 ( M/S. NAVAYUGA IVRCL & SEW 4 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . JOINT VENTURE VS. ITO DT.8.3.2013) HAD RESTORED THE IMPUGNED ISSUE BACK TO THE ASSESSING OFFICER AS UNDER : 2. THE SOLE GRIEVANCE OF THE ASSESSEE IN THE PRESENT APPEAL IS WITH REGARD TO THE DISALLOWANCE OF DEDUCTION CLAIMED U/S 8 O IA (4) OF THE ACT. BRIEFLY THE FACTS OF THIS ISSUE ARE THE ASSESSEE IS A JOINT VENTURE FORMED BY THREE COMPANIES VIZ. NAVAYUGA EN GINEERING COMPAN Y NAG A RJUNA CONSTRUCTION COMPANY AND MAYTAS. THE ASSESSEE ENTERED INTO A CONTRACT WITH THE GOVERNMENT OF ANDHRA PRADESH IRRIGATION AND CAD DEPARTMENT REPRESENTED BY THE SUPERINTENDING ENGINEER PEBBAIR. THE CONTRACT IS FOR THE EXECUTION OF THE WORKS KNOWN AS 'BLIP - LIFT - II AT THIRUMALAYAPALLY & MOTHAKOTA (VILLAGE) OF KOTHAKOTA MANDA L MAHABOOBNAGAR DISTRICT ANDHRA PRADESH ON EPC BASIS'. THE ASSESSEE FILED ITS RETURN OF I NCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 31 - 10 - 2006 DECLARING 'NIL' INCOME AFTER CLAIMING DEDUCTION OF RS.2 S5 67 175/ - U/S SOIA (4). IN COURSE OF SCRUTINY ASSESSME N T PROCEEDINGS THE ASSESSING OFFICER RAISED QUERY WITH REGARD TO THE CLAIM OF DEDUCTION U/ S 8 O IA (4) OF THE ACT. IN RESPONSE TO THE QUERY THE ASSESSEE SUBMITTED ITS EXPLANATION BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER HOWEVER DID NOT ACCEPT THE EXPLANATION SUBMITTED BY THE ASSESSEE ON THE FOLLOWING REASONS: - I) SECTION 8 O IA (4) APPLIES TO A DEVELOPER AND THE ASSESSEE IS NOT A DEVELOPER AND ONLY A CONTRACTOR. II) THE ASSESSEE IS NOT THE OWNER OF THE INFRASTRUCTURE FACILITY AND HAS EXECUTED THE WORK ON EPC (ERECTION PROCUREMENT AND CONSTRUCTION) BASIS. 5 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 6 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 7 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 8 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 9 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 7. A PLAIN READING OF THE AFORESAID PROVISION - MAKES IT CLEAR THAT THE ENTERPRISE HAS TO UNDERTAKE ANYONE OF THE THREE ACTIVITIES I.E. DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING OPERATING AND MAINTAINING A NEW INFRASTRUCTURE - FACILITY. IT HAS TO BE OWNED BY A COMPANY OR CONSORTIUM OF COMPANIES. THE REVENUE AUTHORITIES HELD THAT THE ASSESSEE IS NOT ENTITLED TO AVAIL EXEMPTION U/S 80IA (4) AS IT HAS NOT UNDERTAKEN ALL THE THREE ACTIVITIES AND IT IS NOT THE OWNER OF THE INFRASTRUCTURE FACI LITY. FOR COMING TO SUCH CONCLUSION THE CIT (A) HAS ALSO RELIED UPON THE DECISION OF INCOME - TAX APPELLATE TRIBUNAL MUMBAI SPECIAL BENCH IN THE CASE OF MIS. B.T. PATIL AND SONS (SUPRA). THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SUSHEE HI TECH CO NSTRUCTIONS (SUPRA) AFTER TAKING INTO ACCOUNT THE DECISION OF. THE INCOME - TAX APPELLATE TRIBUNAL SPECIAL BENCH IN THE CASE OF B.T. PATIL (SUPRA) AND ALSO TAKING INTO CONSIDERATION THE SUBSEQUENT AMENDMENT TO SECTION 80IA(4) HELD THAT AN ENTERPRISE WHICH U NDERTAKES ANYONE OF THE THREE ACTIVITIES VIZ. DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) DEVELOPING OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY WOULD BECOME ELIGIBLE FOR DEDUCTION U/S 80IA( 4) OF THE ACT. 8. THE CO - ORDINATE BENCH IN THE SAID DECISION FURTHER HELD THAT FOR AVAILING DEDUCTION U/S 8 OIA (4) OF THE ACT THE ASSESSEE NEED NOT BE THE OWNER OF THE INFRASTRUCTURE FACILITY. THE ONLY REQUIREMENT UNDER CLAUSE (1) (A) OF SECTION SOIA (4) IS THAT THE ENTERPRISE WHICH IS EXECUTING THE WORK SHOULD BE OWNED BY A COMPANY. IN VIEW OF THE CLEAR STATUTORY LANGUAGE AND THE RATIO LAID DOWN BY THE CO - ORDINATE BENCH IN CASE OF M / S . SUSHEE HI TECH CONSTRUCTION P VT. LTD VIS. DCIT (SUPRA) CLAIM OF DEDUCTION U/S . 8 O IA (4) CANNOT BE DENI ED ON THE GROUND THAT 10 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 11 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 12 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 13 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 14 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . I NVOLVEMENT AND DEFECT CORRECTION OF CONTRACT DURING THE WARRANTY PERIOD THEN THE ASSESSEE WOULD BE ENTITLED TO CLAIM DEDUCTION U/S.80 IA(4) OF THE ACT. ACCORDINGLY THE ORDER OF THE CIT(A) IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE AFRESH KEEPING IN VIEW OUR OBSERVATION MENTIONED ABOVE AND IN ACCORDANCE WITH LAW AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 15 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 3. BOTH THE LEARNED REPRESENTATIVES NEXT SUBMITTED THAT THE TRIBUNALS B BENCH HAS HEARD THE SAID FORMER ASSESSEE'S APPEALS ITA NO.496/HYD/2018 & ORS O N 19.02.2021 AND WHATEVER DECISION WOULD BE TAKEN THEREIN APPLIES MUTATIS MUTANDIS TO THE FACTS OF THE INSTANT CASES AS WELL. WE PROCEED IN THIS FACTUAL BACK DROP TO NOTICE THAT THE SAID BENCHS COMMON ORDER IN M/S. NEC - NCC MAYTAS JOINT VENTURE HAS DECLINED THE CONCERNED OF SECTION 80IA DEDUCTION IN ITS ORDER DT 12.05 .2021 AS UNDER : ITA NO. & ASST. YEAR APPELLANT RESPONDENT 430/HYD/2016 2007 - 08 M/S. NEC NCC MAYTAS JV VI - 1 6 - 3 - 652 DHRUVATARA APARTMENTS SOMAJIGUDA HYDERABAD . PAN AAAAN 3690E ACIT CIR.6(1) HYDERABAD. 431/HYD/2016 2008 - 09 - DO - - DO - O R D E R THE INSTANT BATCH OF NINE CASES PERTAINS TO A SINGLE ASSESSEE M/S. NEE - NPC - MYTAS - JV. A LL THESE NINE APPEALS ARISE AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS) - 16 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 12 HYDERABADS ORDER DT.16.08.2017 IN CASE NO .0149/2016 - 17 FOR ASSESSMENT YEAR 2006 - 07; THE CIT(APPEALS) - 9 HYDERABADS COMMON ORDER DT. 3 1.12.201 5 PASSED IN CASE NO S.0273/ACIT CIRCLE 6(1)/2015 - 16; 0311/ACIT CIRCLE 6(1)/2015 - 16 AND 0339/ITO WARD 6(1)/2015 - 16 IN ASSESSMENT YE AR S 2007 - 08 2008 - 09 AND 2010 - 11; THE CIT(APPEALS) - 9 HYDERABADS ORDER DT.7.7.2017 IN CASE NO .0231/ITO WARD 6(1)/2016 - 17 FOR ASSESSMENT YEAR 2009 - 10 AND CIT(APPEALS) - 6 HYDERABADS SEPARATE ORDERS; ALL DT.26.2.2018 IN CASE NOS .1165/2014 - 15/B1/CIT(A) - 6; 0 034/2015 - 16/B2/CIT(A) - 6; 0037/2016 - 17/B2/CIT(A) - 6 AND 0460/2016 - 17/B2/CIT(A) - 6 FOR ASSESSMENT YEARS 2011 - 12 TO 2014 - 15; RESPECTIVELY. RELEVANT PROCEEDINGS IN FIRST AND FOREMOST ASSESSMENT YEAR 2006 - 07 ARE UNDER SECTION 143(3) R.W.S. 254 AND U/S. 143(3) O F THE INCOME TAX ACT 1961 ('IN SHORT THE ACT') ; RESPECTIVELY. HEARD BOTH PARTIES. CASE FILES PERUSED. 2. BOTH THE LEARNED REPRESENTATIVES STATE AT THE OUTSET THAT THE ASSESSEES IDENTICAL SOLE SUBSTANTIVE GRIEVANCE THAT IN A LL THESE NINE CASES SEEKS TO REVERSE BOTH THE LOWER AUTHORITIES ACTION DISALLOWING ITS 80IA DEDUCTION CLAIM (S) OF RS.2 85 67 175/ - RS.1 62 25 941/ - RS.1 85 37 574/ - RS.6.65 60 238/ - RS.2 01 03 559/ - . RS.49 40 186/ - RS.5 85 122/ - RS.3 85 097/ - AND RS.13 15 184/ - ; ASSESSMENT YEARS RESPECTIVELY PERTAIN ING TO EXECUTION OF THE ALLEGED CONTRACT WORKS FORMING PART OF M/S. BHIMA LIFT IRRIGATION SCHEME IN MAHABOOB NAGAR DISTRICT TELANGANA STATE ( ERSTWHILE UNDIVIDED ANDHRA PRADESH ) . LEARNED COUNSEL INVITED OUR ATTENTION TO THE T RIBUNALS FIRST ROUND REMAND ORDER DT.8.3.2013 IN ASSESSEE'S APPEAL IN ITA 17 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . NO.517/HYD/2010 IN A.Y. 2006 - 07 RESTORING THE INSTANT SOLE ISSUE BACK TO THE ASSESSING OFFICER AS UNDER : 18 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 19 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 20 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 21 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 22 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 23 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 24 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 25 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 26 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . IT IS IN THIS BACKDROP THAT WE DEAL ASSESSEE'S APPEAL ITA NO.496/HYD/2018 FOR ASSESSMENT YEAR 2006 - 07 AS THE LEAD CASE. 3. MR. AFZAL NEXT TOOK US TO THE ASSESSING OFFICERS CONSEQUENTIAL SECOND ROUND ORDER DT.28.2.2014 REITERATING THE IMPUGNED SECTION 80IA(4) DEDUCTION DISALLOWANCE OF RS.2 85 67 175 AS FOLLOWS : ---- SPACE LEFT INTENTIONALLY ------- 27 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 28 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 29 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 30 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . THE OXFORD DICTIONARY GIVES THE MEANING FOR THE WORD EXECUTE AS TO CARRY OUT A WORK OR AN ORDER. THE WORK CARRIED OUT BY THE ASSESSEE CLEARLY 31 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 32 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 33 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 34 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 35 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 36 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 37 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 38 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 39 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 40 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 41 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 42 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . THE CIT(APPEALS) ADMITTEDLY CONFIRMED THE ASSESSING OFFICERS ACTION. THIS IS WHAT LEA VES THE AS SESSEE'S A GGRIEVED . MR. AFZA L VEHEMENTLY SUBMITTED DURING THE COURSE OF HEARING THAT BOTH THE L OWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN DISALLOWING ASSESSEE'S 80IA(4) DEDUCTION CLAIM DESPITE THE FACT THAT IT HAS DEVELOPED THE IMPUGNED INFRASTRUCTURE FACILITIES. HE HAS FUR THER FILED A DETAILED WRITTEN SYNOPSIS SUMMARIZING ASSESSEE'S ARGUMENT S AS UNDER : 43 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 1. THE ASSESSEE HEREIN IS A JOINT VENTURE MAYTAS NCC JV. THE JOINT VENTURE IS A CONSORTIUM OF MAYTAS INFRA LTD. (PRESENTLY KNOWN AS IL & FS ECC LIMITED) AND NAGARJUNA CONSTRUCTION COMPANY LIMITED (PRESENTLY KNOWN AS NCC LIMITED) AND ENGAGED IN DEVELOPMENT OF IRRIGATION PROJECTS WHICH ARE DEFINED AS INFRASTRUCTURE FACILITIES. DURING THE FINANCIAL YEAR 2005 - 06 THE ASSESSEE UNDERTOOK 6 DIFFERENT INFRASTRUCTURE FACILITIES BEING IRRIGATION PROJECTS. THE DETAILS OF THE PROJECTS ELIGIBLE FOR DEDUCTION U/S 801A ARE MENTIONED AT PAGE 18 OF THE PAPER BOOK. 2. THE ASSESSEE SUBMITS THAT IT IS A CONSORTIUM OF COMPANIES. IT ENTERS INTO AGREEMENTS WITH STATE GOVERNMENT; THE STATE GOV ERNMENT ALLOTTED THE WORK OF DEVELOPMENT OF IRRIGATION PROJECTS AND THE INCOME THEREON IS ELIGIBLE FOR DEDUCTION U/S 801A (4) OF THE I.T.ACT. ACCORDINGLY THE ASSESSEE FILED THE RETURN OF INCOME ADMITTING NIL INCOME. 3. THE ASSESSMENT WAS ORIGINALLY COMPL ETED U/S 143(3) OF THE I.T.ACT ON 18.11.2008 DENYING THE DEDUCTION CLAIMED U/S 80IA OF THE ACT. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) VIDE ORDER DATED 15.06.2009 DISMISSED THE APPEAL FILED. ON FURTHER APPEAL FILED BEFORE THE HON'BLE INCOME TAX A PPELLATE TRIBUNAL THE HON'BLE ITAT VIDE ORDER IN ITA NO.1040JHYDJ2009 DATED 31.10.2012 SET ASIDE THE ISSUE TO THE FILED OF THE ASSESSING OFFICER. THE DIRECTIONS ARE AT PARA 7 PAGE 9 OF THE ORDER OF THE HON'BLE ITAT. 4. THE ASSESSING OFFICER COMPLETED T HE REASSESSMENT U/S 143(3) RWS 2S4 OF THE LT.ACT ON 26.03.2014 AND REJECTED THE 44 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . CLAIM FOR DEDUCTION U/S 80IA OF THE ACT. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER MENTIONED THAT - A) THE ENTIRE PROJECT IS NOT EXECUTED BY THE ASSESSEE AND ONLY PART OF THE PROJECT WAS UNDERTAKEN; B) THE INFRASTRUCTURE FACILITY WAS NOT OPERATED BY THE ASSESSEE AND THE ASSESSEE DID NOT COMMENCE THE OPERATING AND MAINTENANCE AND THEREFORE FAILED TO JUSTIFY THE CRUCIAL CONDITION. C) THE ASSESSING OFFICER IS OF THE VIEW T HAT THE INFRASTRUCTURE FACILITY SHOULD BE OWNED FOR A SUBSTANTIAL PERIOD WITH A CONDITION THAT THE ASSESSEE SHOULD BE ELIGIBLE TO OPERATE AND MAINTAIN. D) AS THE INTENT OF THE GOVERNMENT IS NOT TO GRANT DEDUCTION U/S 80IA AND ALSO BLOCK ITS FUNDS IN DEVEL OPMENTAL ACTIVITIES THE ASSESSING OFFICER REJECTED THE CLAIM FOR DEDUCTION U/S 80IA OF THE ACT. 5. BEFORE THE LEARNED CIT (A) A DETAILED SUBMISSION WAS MADE A COPY OF WHICH IS AVAILABLE AT PAGE NO. 18 & 19 OF THE PAPER BOOK. THE LEARNED CIT (A) OBSERV ED AS UNDER: 6. AT PARAS 7.0 AND 7.1 THE LEARNED CIT (A) HELD THAT FOR BEING ELIGIBLE FOR DEDUCTION U/S 80IA IT IS ENOUGH IF ANY OF THE THREE CONDITIONS I.E. DEVELOPING OR OPERATING AND MAINTAINING OR DEVELOPING OPERATING AND MAINTAINING IS FULFILLED. 7. AT PARA 7.2 THE LEARNED CIT (A) REFERRED TO THE DECISION OF THE HON'BLE ITAT MUMBAI BENCH IN THE CASE OF PATEL ENGG. CO. VS. DCIT REPORTED IN 94 LTD 411 AND HELD THAT IT IS ENOUGH IF THE APPELLANT DEVELOPS INFRASTRUCTURE FACILITY FOR BECOMING ENTITLE D FOR DEDUCTION U/S 80IA OF THE ACT. 45 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 8. AT PARA 7.4 THE LEARNED CIT (A) REFERS TO THE DECISION OF THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF ABG HEAVY INDUSTRIES AND HELD THAT THOUGH THE ASSESSEE DEVELOPS ONLY PART OF THE INFRASTRUCTURE FACILITY I T DOES NOT BAR THE ASSESSEE FROM CLAIMING DEDUCTION U/S 80IA. 9. AT PARA 7.6 THE LEARNED CIT(A) REFERS TO THE ORDER OF THE CIT (A) - 4 HYDERABAD AND HELD THAT THE WORKS EXECUTED BY THE ASSESSEE ARE NOT SIMPLE WORKS CONTRACTS BUT THEY ARE THE DEVELOPMENT OF INFRASTRUCTURE FACILITY. THE LEARNED CIT (A) ALSO EXTRACTED THE RELEVANT PORTION OF THE ORDER OF THE CIT (A) - 4 HYDERABAD. 10. AGAINST THE SAID DECISION THE DEPARTMENT IS IN APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. 5. MR. A FZAL ALSO T OOK PAIN S TO PLACE ON RECORD THE ASSESSEE'S TWIN SHEETS CONTAINING ARCHITECTURAL DESIGN OF S TAGES I AND II OF BHIMA LIFT IRRIGATION PROJECT CONTAINING DESIGN AND EXECUTION OF ALL CIVIL WORKS LIKE CANAL APPROACH TO THE TUNNEL TUNNEL SURGE POOL PUMP HOUSE DELIVERY MAINS ETC. H IS CASE IN LIGHT OF THE ASSESSEE'S STAND ADOPTED THROUGHOUT AND IN VIEW OF THE DETAILED VOLUMINOUS PAPER BOOK S COMPRISING OF AGREEMENT CLAUSES TO THIS EFFECT IS THAT IT IS IN FACT THE ASSESSEE WHO HA S DEVELOPED THE REL EVANT INFRASTRUCTURE FACILITY DEFINED IN SECTION 80IA(4) EXPLANATION ( C ) OF THE ACT AND THEREFORE WE OUGHT TO ADOPT LIBERAL CONSTRUCTION ONLY SO AS TO REVERSE THE LEARNED LOWER AUTHORIT IES ACTION MAKING THE IMPUGNED DISALLOWANCE. HE HAS ALSO FILED A C ASE LAW PAPER BOOK RUNNING INTO 93 PAGES TO BE PRECISE CONTAINING THE FOLLOWING JUDICIAL PRECEDENTS : 46 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 1 . [2005] 94 LTD 411 (MUMBAI) HON'BLE IT AT MUMBAI BENCH 'F' IN THE CASE OF PATEL ENGG LTD VS DY COMMISSIONER OF INCOME - TAX . 2 . HON'BLE ITAT MUMBAI BENCH - F ORDER IN THE CASE OF ACIT VS BHARAT UDYOG LTD. 3 . [2010] 322 ITR 323 (BOMBAY) HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF 10 - 15 CIT CENTRAL - II VS ABG HEAVY INDUSTRIES LTD. 4 . HON'BLE ITAT HYDERABAD BENCH - 'A' IN THE CASE OF KOYA & CO CONSTRUCTIONS 16 - 22 (P.) LTD VS ACIT. 5 . HON'BLE ITAT AHMEDABAD BENCH - D IN THE CASE OF SUGAM CONSTRUCTIONS PVT LTD VS ITO. 6. HON'BLE ITAT PUNE BENCH - B IN THE CASE OF B. T. PATIL & SONS BELGAUM CO NSTRUCTIONS (P.) LTD VS ACIT. 7 . HON'BLE ITAT MUMBAI BENCH - C IN THE CASE OF ACIT VS PRATIBHA INDUSTRIES LTD. 8 . [2016] 76 TAXMANN.COM 105 ( JAMMU & KASHMIR) HON'BLE HIGH COURT OF JAMMU & KASHMIR IN THE CASE OF CIT VS TRG INDUSTRIES PVT LTD . 9 . [2019] 107 TAXMANN 362 (MADRAS) HON'BLE HIGH COURT OF MADRAS CIT VS 47 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . CHETTINAD LIGNITE TRANSPORT SERVICES PVT LTD 10. HON'BLE ITAT HYDERABAD BENCH - B IN THE CASE OF SUSHEE HI TECH CONSTRUCTIONS PVT LTD VS DCIT. 11 . HON'BLE ITAT RAJKOT IN THE CASE OF KATIRA CONSTR UCTIONS LTD VS ACIT. 12 . HON'BLE ITAT JAIPUR BENCH - A IN THE CASE OF MIS AM METALS INFRAPROJECTS LTD. VS CIT - I JAIPUR. 6. LD. CIT - DR MR. VYS T SAI REPRESENTS THE R EVENUE IN THE INSTANT BATCH OF CASES. HE HAS STRONGLY SUPPORTED BOTH THE LOWER AUT HORITIES MAKING THE IMPUGNED SECTION 80IA (4) DISALLOWANCE A S PER THE FOLLOWING WRITTEN SYNOPSIS : THE FOLLOWING SYNOPSIS OF ARGUMENTS MADE DURING HEARING BEFORE THE HON'BLE ITAT ON 15.02.2021 IS FILED AS DIRECTED BY THE HON'BLE ITAT ON THE DATE OF HE ARING. 1. IT IS SUBMITTED THAT THIS IS A SECOND ROUND OF LITIGATION BEFORE THE HON'BLE ITAT. IN THE FIRST ROUND HE HON'BLE ITAT WHILE SETTING ASIDE THE ORDER OF THE CIT(A) AND DIRECTING THE AO TO DECIDE THE ISSUE AFRESH HAS DIRECTED THAT THE ASSESSE E HAS TO SHOW THAT IT HAS ACTUALLY CARRIED ON DEVELOPMENT OF THE INFRASTRUCTURE FACILITY CUMULATIVELY WITH ALL THE ACTIVITIES OF DESIGN DEVELOPMENT ENGINEERING CONSTRUCTION MAINTENANCE FINANCIAL INVOLVEMENT DEFECT CORRECTION AND SUCH OTHER ANCILLARY AND INCIDENTAL WORK CONNECTED WITH THE DEVELOPMENT OF THE PROJECT IN RELATION TO CLAIM OF DEDUCTION U/S. 80IA(4) OF THE INCOME TAX ACT. THE 48 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . HON'BLE BENCH HAS ALSO DIRECTED EXAMINATION OF THE ISSUE THAT THE ASSESSEE DEVELOPED THE PROJECT AND NOT EXECUTED TH E WORK MERELY AS A CONTRACTOR. 2. IT IS SUBMITTED THAT NEITHER BEFORE AO NOR BEFORE THE CIT(A) THE ASSESSEE COULD ESTABLISH THAT IT HAS DEVELOPED THE PROJECT BOTH IN TERMS OF ENTREPRENEURIAL RISK AND FINANCIAL INVOLVEMENT. FIRSTLY THE ASSESSEE IS A ME RE JV WITH NO ASSETS AND NO WHEREWITHAL TO EXECUTE THE PROJECT. AS CAN BE CLEARLY SEEN FROM THE JV AGREEMENT THE WORK WAS DISTRIBUTED AMONG THE PARTNERS OF JV WHO EXECUTED THE WORK AND ARE SEPARATELY FILING RETURNS AND ARE SEPARATELY BEING ASSESSED. WHEN THE ASSESSEE HAS NOT EXECUTED ANY WORK OF THE PROJECT AND WHEN THE DIRECTIONS OF THE HON'BLE !TAT VIDE ITS ORDER DATED 8.3.2013 HAVE BEEN DULY FOLLOWED BY THE AO THERE IS NO GROUND FOR THE ASSESSEE TO RAISE THE ISSUE AGAIN IN THE SECOND ROUND OF LITIGATIO N. 3. SECONDLY THE HON'BLE ITAT DIRECTED THAT IT SHOULD BE EXAMINED THAT WHETHER THE ASSESSEE HAS ACTUALLY CARRIED ON DEVELOPMENT OF THE INFRASTRUCTURE FACILITY CUMULATIVELY WITH ALL THE ACTIVITIES OF DESIGN DEVELOPMENT ENGINEERING CONSTRUCTION MAIN TENANCE FINANCIAL INVOLVEMENT DEFECT CORRECTION AND SUCH OTHER ANCILLARY AND INCIDENTAL WORK CONNECTED WITH THE DEVELOPMENT OF THE PROJECT. THE HON'BLE ITAT SPECIFICALLY MENTIONED THAT FINANCIAL INVOLVEMENT OF THE ASSESSEE IS ALSO REQUIRED FOR 49 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . BECOMING E LIGIBLE FOR CLAIMING THE SAID DEDUCTION VI] S 80IA. IN THIS CONNECTION IT IS CLEARLY EVIDENT FROM THE PAPER BOOK (VOL.II - PT - I) FILED BY THE ASSESSEE THAT THE ASSESSEE WAS PAID MOBILISATION ADVANCE AND MONTHLY LUMP SUM PAYMENTS WHICH ARE ADJUSTED PERIODICA LLY AGAINST WORK DONE. IT IS FURTHER SUBMITTED THAT EVEN FOR SUPPLY OF ELECTRO MECHANICAL AND OTHER EQUIPMENT PAYMENTS ARE MADE ON RECEIPTS OF GOODS(70%) AND INSTALLATION (20%). THESE DETAILS ARE AVAILABLE AT CLAUSES 3.15.1 TO 3.15.6 (AT PAGES 1 - 73 TO 1 - 7 8) OF THE CONTRACT AGREEMENT OF THE ASSESSEE WITH THE GOVERNMENT WITH RESPECT TO BHEEMA LIFT IRRIGATION PROJECT. FROM THE DETAILED READING OF THE ABOVE SAID CLAUSES IT IS SEEN THAT THE ASSESSEE IS NOT THE DEVELOPER BUT THE GOVERNMENT IS THE DEVELOPER. THE GOVERNMENT HAS ASSIGNED CONTRACT WORK TO THE ASSESSEE MADE ADVANCE PAYMENTS AS WELL AS MONTHLY LUMPSUM PAYMENTS. THERE IS NO FINANCIAL INVOLVEMENT OR ENTREPRENEURIAL RISK BORNE BY THE ASSESSEE. 4. IT IS SUBMITTED THAT THE LETTER AND SPIRIT OF SECTION 80IA IN GENERAL AS WELL AS EXPLANATION TO SEC.80IA INTRODUCED BY FINANCE ACT 2009 (W.E.F.1.4.2000) IN SPECIFIC HAS BEEN DEALT IN DETAIL BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF KATIRA CONSTRUCTION LTD [352 ITR 513]. WHEN THERE IS NO ENTREPRENEURIA L RISK AND FINANCIAL INVOLVEMENT THE ENTIRE PROJECT IS DEVELOPED BY THE GOVERNMENT AND THE ASSESSEE IS MERELY A WORKS CONTRACTOR THE ASSESSEE IS NOT BE ELIGIBLE TO CLAIM DEDUCTION IX] S 80IA ( SPECIFIC 50 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . REFERENCE IS MADE TO PARAS - 27 TO 36 OF THE ABOVE REF ERRED DECISION) 5. REGARDING THE WORDS 'INCLUDING CENTRAL GOVT' IN THE EXPLANATION WHICH WERE ADDED BY THE FINANCE ACT 2009(W.E.F. 1.4.2000) IT IS SUBMITTED THAT THE SAME ARE ONLY CLARIFICATORY AND THE KEY FACTORS OF 'ENTREPRENEURIAL RISK' AND 'FINANCIAL INVOLVEMENT' ARE MANDATORY EVEN BEFORE THE INCLUSION OF SAID WORDS IN SEC. 80IA AS WELL AS EXPLANATION TO SEC.80IA OF THE INCOME TAX ACT. 6. IN SUMMARY IT IS HUMBLY SUBMITTED THAT ON BOTH THE ASPECTS OF EXECUTING OF THE WORK AND ENTREPRENEURIAL RISK AND FINANCIAL INVOLVEMENT THE CLAIM OF THE ASSESSEE FALLS FLAT AND APPEALS FILED BY ASSESSEE MAY KINDLY BE DISMISSED. 7. MR. AFZA L HAS STRONGLY REITERATED THE ASSESSEE'S STAND CLAIMING ITSELF AS DEVELOPER OF THE LIFT IRRIGATION PROJECT IN Q UESTION. 8. WE HAVE HEARD THE FOREGOING RIVAL SUBMISSIONS QUA THE INSTANT ISSUE OF SECTION 80IA DEDUCTION. THE ASSESSEE HAS ADMITTEDLY CLAIMED THE SAME TAKING ITSELF AS THE DEVELOPER BY CO URT THAT A CORRESPONDING COMMERCIAL PROJECT FIRM OF INFR ASTRUCTURAL FACILITY AS PER SECTION 80IA(4) EXPLN.( C ) COVERING A WATER SUPPLY PROJECT WATER TREATMENT SYSTEM IRRIGATION PROJECT SANITATION AND SEWERAGE SYSTEM OR SOLID WASTE MANAGEMENT SYSTEM ONLY. OUR ATTENTION HAS BEEN INVITED TO THE CORRESPON DING PROJECT S ARCHITECTURAL DESIGN (SUPRA). THE ASSESSEE HAS THEREAFTER PLEADED THAT IT HAS UNDERTAKEN THE BUSINESS 51 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . RISK NOT ONLY IN THE DEVELOPMENT OF THE SAID LIFT CHANNEL FORMING PART OF THE IRRIGATION PROJECT WHICH HAS TURNED BARREN UNEVEN TRACKS OF LAND TO A C ANAL BUT ALSO IT HAD DEPLOYED ALL OF THE CORRESPONDING PLANT AND MACHINERY LABOUR FORCE FOLLOWED BY RETENTION MONEYS PROJECT THEREBY SATISFYING ALL THE CONDITIONS OF DEVELOPMENT OF INFRASTRUCTURE FACILITY. ALL TH ESE ASSESSEE'S AR GUMENTS FAIL TO EVOKE OUR CONCURRENCE FOR THE REASONS GIVEN HEREUNDER. 9.1 THE ASSESSEE'S FIRST AND FOREMOST PLEA THAT WE OUGHT TO ADOPT LIBERAL INTERPRETATION WHILE CONSIDERING SECTION 80IA(4) CLAIM IN THE LIGHT OF RELEVANT FACTS IN THE INSTANT CAS E DESERVES TO REJECT . SUFFICE TO SAY SUCH A COURSE OF LIBERAL INTERPRETATION IS NO MORE AVAILABLE WHILE DEALING WITH THE INCOME TAX ACTS PROVISIONS AS PER HONOURABLE APEX COURT S RECENT CONSTITUTIONAL BENCH S DECISION IN COMMISSIONER OF CUSTOMS (IMP ORT) VS. DILIP KUMAR AND CO. (2018) 9 SCC 1 SETTLING THE LAW THAT A FIS CAL STATUTE AS WELL AS AN EXEMPTION CLAUSE INCORPORATED THEREIN OUGHT TO BE CONSTRUED IN STRICTER PARLANCE ONLY. THEIR L ORDSHIPS MAKE IT CLEAR THAT BENEFIT OF DOUBT IN CASE OF TAXING PROVISION GOES TO THE TAX PAYER AND VICE VERSA IN AN INSTAN CE OF AN EXEMPTION PROVISION. THE ASSESSEES FIRST ARGUMENT IS REJECTED THEREFORE. 10. WE NEXT EXAMINE THE MERITS OF THE ASSESSEE'S CLAIM IN LIGHT OF SECTION 80IA(4) R.W. EXPL ANATION ( C ) THEREOF. THIS IS FOR THE REASON THAT THE LEGISLATURE HAS REINTRODUCED THE EXPLANATION; FORMERLY INSERTED BY THE FINANCE ACT 2007 W.E.F. 1.4.2007 THAT F OR THE REMOVAL OF DOUBTS IT IS HEREBY DECLARED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO A PERSON WHO EXECUTE S A WORKS CONTRACT 52 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . ENTERED INTO WITH THE UNDERTAKING OR ENTERPRISE AS THE CASE MAY BE FOLLOWED BY ITS SUBSTITUTION BY THE FINANCE ACT 2009 W.E.F. 1.4.2000 THAT FOR THE REMOVAL OF DOUBT S IT IS HEREBY DECLARED THAT NOTHING CONTAI NED 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 IN SUB - SECTION (1). 11. LEARNED CIT - DR AT THIS STAGE QUOTED KA T IRA CONSTRUCTIONS LIMITED VS. UNION OF INDIA AND OTHER S (2013) 352 ITR 513 (GUJ) UPHOLDING VIRES OF THE LATTER EXPLANATION THAT THE SAME I S PURELY EXPLANATORY IN NATURE THAN AMENDING THE EXISTING PROVISION AND THEREFORE THE QUESTION OF IT BEING LEVYING ANY TAX WITH RETROSPECTIVE EFFECT WOULD NOT RISE. IT IS THUS EXPLICITLY CLEAR TH A T THE IR L ORDSHIPS HAVE HELD THIS LATTER EXPLANATION IN THE NATURE OF A PLAIN AND SIMPLE ONE; N EITHER ADDING NOR SUBTRACTING ANYTHING TO THE EARLIER EXPLANATION INSERTED VIDE FINANCE ACTS 2009 AND 2007; RESPECTIVELY. LEARNED CIT - DR FURTHER SOUGHT TO PIN POINT THE FACT THAT THE LATTER EXPLANATION INSERTED VIDE FINANCE ACT 2009 W.E.F. ;1.4.200 0 HAS RATHER COVERED A WORK CONTRACT AS NOT ENTITLED FOR THE IMPUGNED DEDUCTION DESPITE THE FACT THAT THE CONCERNED ASSESSEE SATISFIED ALL OTHER CONDITIONS IN SUB - SECTION (4) OF SECTION 80IA OF THE ACT. WE FIND FORCE IN REVENUES INSTANT ARGUMENT AS THE F INANCE ACT 2009 SUBSTITUTE S THE EARLIER EXPLANATION THAT THE SAME WOULD NOT COVER A WORKS CONTRACT FOR THE PURPOSE OF PROVIDING DEDUCTION QUA INDUSTRIAL UNDERTAKING OR ENTERPRISE ENGAGED IN INFRASTRUCTURE DEVELOPMENT ETC. 53 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 12. THERE IS YET ANOTHER EQUALLY IMPORTANT ASPECT WHICH REQUIRES OUR APT ADJUDICATION AT THIS STAGE I.E. OF THE CLINCHING LEGISLATIVE EX PRESSION IN THE LATTER EXPLANATION 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 THE STATE GOVERNMENT) . WE NOTE THAT HONOURABLE APEX COURT YET ANOTHER LARGER BENCH DECISION IN KARTAR SINGH BHADANA VS. HARI S INGH NALWA & ORS CIVIL APPEAL NO.6931 OF 2000 DECIDED ON 27.03.2001 HAD AN OCCASION TO DEAL WITH THE EXPRESSION WORKS USED IN SECTION 9 - A OF THE REPRESENTATION OF PEOPLE ACT 1951. HONBLE COURT THEREIN WENT BY THE SHORTER OXFORD ENGLISH DICTIONARY S MEANING THAT WORK MEAN S A STRUCTURE OR APP ARATUS OF SOME KIND; AN ARCHITECTURAL OR ENGINEERING STRUCTURE A BUILDING E DIFI CE . WHEN IT WAS USED IN THE PLURAL THAT IS AS WORKS IT MEANT ARCHITECTURAL OR ENGINEERING OPERATION S A FORTIFIED BUILDING A DEFENSIVE STRUCTURE FORTIFICATION OR ANY OF THE SEVERAL PARTS OF SUCH STRUCTURES . THEIR L ORDSHIPS ALSO TOOK NOTE OF HONOURABLE JURISDICTIONAL HIGH COURT S JUDGMENT IN B. LAXMIKANT H A RAO VS. D CHIN NA MALLAIAH AIR 1979 AP 132 WHILST ADOPTING THE DICTIONARY MEANING OF WORK IN FOREGOING TERM S . WE FURTHER QUOTE RAGHU NATH RAI BARA ZA VS. P NB ( 2007) 135 CO MPANY CASES 163 (SC) THAT IT IS THE CARDINAL RULE OF INTERPRETATION THAT WORDS USED BY THE LEGISLATURE ARE TO BE UNDERSTOOD IN THEIR NATURAL ORDINARY OR POPULAR SENSE OR CONSTRUCTED AS PER THEIR GRAMMATICAL MEANING UNLESS SUCH A CONSTRUCTION LEAD TO SOME ABSURDITY OR THERE IS SOMETHING IN THE CONTEXT OR IN THE OBJECT OF THE STATUTE TO THE CONTRARY. 54 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . 13. WE GO BY THE FOREGOING OBSERVATIONS OF THEIR L ORDSHIPS AND OBSERVE THAT THE STAGE S I & II OF THE BHIMA LIFT IRRIGATION P ROJECT UNDERTAKEN BY THE ASSESSEE CONTAINING ALL THE CIVIL WORKS LIKE CANAL APPROACH TO THE TUNNEL TUNNEL SURGE POOL PUMP HOUSE DELIVERY MAINS MANUFACTURING TESTING INSPECTION PACKING SUPPLY ERECTION AND CO MMISSIONING OF ELECTRO MECHANICAL AND HYDRO MECHANICAL EQUIPMENT INDEED FO RMED AN ARCHITECTURAL AS WELL AS ENGINEERING STRUCTURE AND THEREFORE AMOUNTS TO AN EXECUTION OF A WORKS CONTRACT AWARDED BY THE STATE GOVERNMENT THROUGH ITS IRRIGATION DEVELOPME NT ONLY AND COVERED U/S. 80IA EXPLANATION INCORPORATED IN THE ACT BY THE FINANCE ACT 2009 W.E.F. 1.4.2000. LEARNED CIT - DR AT THIS STAGE INVITED OUR ATTENTION TO PAGE 18 IN ASSESSEE'S PAPER BOOK II PART 1 THAT IT HAD PURELY EXECUTED WORKS CONTRACT ONLY IN VIEW OF THE FACT THAT THE IRRIGATION DEPARTMENT HAD ISSUED IT MOBILIZATION ADVANCES ON MULTIPLE OCCASIONS FROM TIME TO TIME. HE NEXT TOOK US TO AGREEMENT CLAUSE 3.15 CONTAINING CONTRACT PRICE AND PAYMENT MAKING IT EVIDENT THAT THE ASSESSEE HAD TO BE PAID ON FIXED LUMP SUM MONTHLY BASIS ONLY. AND FURTHER THAT THE ASSESSEE WAS ENTITLED TO GET FIXED LUMP SUM MONTHLY INSTALMENT PAYMENTS PROVIDED VALUE OF THE WORK EXECUTED IS MORE THAN OR EQUAL TO THE FIXED LUMP SUM MONTHLY INSTALMENT AS INDICATE D IN THE AGREEMENT. T HE SAID AGREEMENT STIPULATED ADVANCE PAYMENT S TO THE ASSESSEE QUA SUPPLY OF GOODS AT THE SITE. ALL THESE FACTS SUFFICIENTLY INDICATE THAT THE ASSESSEE ASSUMING THAT NOT ACCEPTING THAT IT IS THE DEVELOPER U/S. 80IA(4) OF THE ACT EXECUTED A WORKS CONTRACT ONLY UNDER EXPLANATION TO 55 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . SECTION 80IA OF THE ACT AND THEREFORE NOT ENTITLED FOR THE IMPUGNED DEDUCTION. 1 4 . THE ASSESSEE NEXT MADE A VERY STRONG ENDEAVOUR TO PLACE RELIANCE ON A CATENA OF CASE LAW (SUPRA) INCLUDING CIT VS . ABG HEAVY INDUSTRIES LIMITED (2010) 322ITR 323 (BOM). WE FIND THAT NEITHER OF THESE DECISIONS DEALS WITH THE INTERPLAY BETWEEN THE SECTION 80IA(4) VS. 80IA EXPLANATION INVOLVING EXECUTION OF WORKS CONTRACT AS IS THE FACTUAL POSITION BEFORE US. THE SAID CASE LAW DISTINGUISHED THEREFORE. 1 5 . MR. AFZAL S LAST ARGUMENT SEEKS TO BUTTRESS THE POINT THAT SUCH A STRICT INTERPRETATION EMPLOY ED IN DEALING WITH AN INST ANCE OF DEVELOPMENT OF AN INFRASTRUCTURE PROJECT WOULD TANTAMOUNT TO CLOSING THE DEDUCTI ON CHAPTER ALTOGETHER AND M ORE PARTICULARLY WHEN THIS ASSESSEE HAS B ORNE ALL RISK S AND RESPONSIBILITIES OF THE LIFT IRRIGATION PROJECT BY PAYING REDUCTION MONEY AND PERFORM ANCE GUARANTEE(S) AS WELL. WE HOLD THAT THIS LAST ARGUMENT ALSO FAILS TO CUT ANY I CE SINCE THE ASSESSEE HAS MERELY PERFORM ED A WORKS CONTRACT AND ITS RETENTION MONEY OR THE SO CALLED PERFORMANCE GUARANTEE ONLY GAVE AN ASSURANCE TO THE IRRIGATION DEVELOPMENT THAT IT HA D CARRIED OUT THE CORRESPONDING CONSTRUCTION ETC. AS PER THE SPECIFIED DESIGN NORMS THAN INVOLVING ANY BUSINE SS RISK. WE ACCORDINGLY HOLD THE VIEW OF OUR INDEPENDENT APPRECIATION OF FACTS AS WELL AS ASSESSMENT FINDINGS THAT THE ASSESSEE IS A CONTRACTOR HAVING EXECUTED WORKS CONTRACT ONLY. 16. WE ALSO DEEM IT APPROPRIATE TO QUOTE ADAM SMITH S THE WEALTH OF NATION S (PUBLISHED IN 1776 AND CALLED AS THE FOUNDING WORK ON MODERN ECONOMICS) THAT IT IS NOT 56 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . FROM THE BENEVOLENCE OF THE BUTCHER THE BREWER OR THE BAKER THAT WE EXPECT OUR DINNER BUT FROM THEIR REGARD TO THEIR OWN INTEREST. 17. NEVERTHELE SS THE SAME CONNOTATION APPLIES IN THE FACTS OF THE INSTANT CASE . I T IS CLEAR THAT THE ASSESSEEHAS FIRST OF ALL BEEN PAID MOBILIZATION ADVANCE S BY THE STATE GOVERNMENT S DEPARTMENT ON PERIOD IC BASIS AND THEN ONLY IT EXECUTED THE CORRESPONDING LIFT IRRI GATION PROJECT WORKS CONTRACT FOLLOWED BY ITS YET ANOTHER CLAIM OF SECTION 80IA OF THE ACT DEDUCTION ( SUPRA). WE ARE AFRAID THAT SUCH A LIBERAL INTERPRETATION WOULD AMOUNT TO GOING AGAINST THE STRICTER INTERPRETATION PRINCIPLE IN VIEW OF HONOURABLE APEX COURT DECISION (SUPRA). WE ACCORDINGLY CONCLUDE BOTH THE LEARNED LOWER AUTHORITIES HAVE RIGHTLY DISALLOWED ASSESSEE'S 80IA DEDUCTION CLAIM INVOLVING VARYING SUM (S) (SUPRA) IN THEIR RESPECTIVE ORDERS. THE SAME STANDS CONFIRMED. THESE ASSESSEE'S APPEALS A RE DISMISSED THEREFORE. 18. NO OTHER ARGUMENT HAS BEEN RAISED BEFORE US. 1 9 . THESE ASSESSEE'S APPEALS ARE DISMISSED. 4. WE A PPRECIATE BOTH PARTIES FAIR STAND AND FURTHER ADOPT THE FOREGOING DETAILED REASONING DECLINING THE IMPUGNED SECTION 80 IA IDENTICAL DEDUCTION CLAIM MUTATIS MUT A N DIS TO AFFIRM BOTH THE LOWER AUTHORITIES ACTION IN ALL T HESE ASSESSEE'S APPEALS EXCEPT REVE NUES APPEAL ITA NO;675/HYD/2016 FOR ASSESSMENT YEAR 2010 - 11. ALL THESE 57 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . ASSESSEE'S APPEALS ARE REJECTED WHEREAS REVENUES APPEAL IS ACCEPTED IN FOREGOING TERMS. ORDERED ACCORDINGLY. 5. NO OTHER GROUND HAS BEEN RAISED BEFORE US. 6 . THESE ASSESSEE'S APPEALS ITA NOS.1832 1834/HYD/2017 1169/HYD/2018 AND 71/HYD/2019 ARE DISMISSED AND REVENUES APPEAL ITA NO.675/HYD/2016 IS ALLOWED. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 24TH MAY 2021. SD/ - SD/ - (LAXMI PRASAD SAHU) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD DT. 24 .05 .2021. * REDDY GP COPY TO : 1. M/S. NAVAYUGA IVRCL & SEW JV 8 - 2 - 293/82A - 1259 LAKSHMI TOWER S ROAD NO.36 2136 JUBILEE HILLS HYDERABAD - 500 033 2. DCIT CIR.6(1) HYDERABAD. ACIT CIRCLE 6(1) HYDERABAD. ITO WARD 14(1) HYDERABAD. ACIT CIRCLE 14(1) HYDERABAD. 3. PR. C I T - 6 HYDERABAD. 4. CIT(APPEALS) - 4 6 12 HYDERABAD. 5. DR ITAT HYDERABAD. 6. GUARD FILE. 58 ITA NO S . 675/HYD/2016; 1832 1833 1834 & 2136/HYD/2017; 1169/HYD/2018 & 71/HYD/2019 . B Y ORDER SR. PVT. SECRETARY ITAT HYDERABAD.