The Commissioner Of Income Tax v. M/S.Chettinad Lignite

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 3.4.2019

CORAM

THE HON'BLE DR.JUSTICE VINEET KOTHARI AND THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN Tax Case Appeal No.9 of 2011 Commissioner of Income Tax, Coimbatore.

Appellant/Appellant Vs.

M/s.Chettinad Lignite Transport Services Private Limited, 43, Race Course Road, Coimbatore - 641 018.

PAN: AABCC7357G Respondent/Respondent Tax Case Appeal filed under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal, Madras 'D' Bench, Chennai, dated 26.2.2010 made in ITA No.1179/Mds/2008 against the order of Commissioner of Income Tax Appeals-1 Coimbatore dated 26/03/2008 against the order dated 26/12/2005 on the file of Assistant Commissioner of Income Tax Company Circle 1(1), Coimbatore -18.

For Appellant : M/s.T.R.Senthilkumar Sr. Standing Counsel assisted by Ms.K.G.Usharani For Respondent : Mr.Venkata Narayanan and R.Vijayaraghavan for M/s.Subbaraya Aiyar Padmanabhan.

JUDGMENT

(Delivered by DR.VINEET KOTHARI,J.) The Revenue has filed this Appeal under Section 260-A of the Income Tax Act, 1961, raising the following substantial questions of law arising from the order of the learned Tribunal dated 26.2.2010, whereby the learned Tribunal allowed the Appeal for the Assessment Year 2005-2006 and held that the Assessee is entitled to the benefit of deduction under Section 80IA of the Act:- "

i) Whether on the facts and in the circumstances of the case, the Appellate

Tribunal was right in allowing the deduction under Section 80IA of the Act, even though the assessee does not satisfy the proviso to SubSection 4 of Section 80IA of the Act? ii) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in allowing the deduction under Section 80IA of the Act, without considering the explanation 13 to Section 80IA introduced by the Finance Act 2007 with retrospective effect from 1.4.2000, no deduction under Section 80IA, is allowable to a Sub- Contractor?"

2. Learned counsels appearing for the parties brought to our notice that the controversy involved in the present Appeal is covered by the Judgment of this court dated 6.3.2019 in the case of the same Assessee in T.C.A.Nos.741, 1266 of 2009 and 162 of 2015 wherein this court has has held as under:- " 8. From a reading of the aforesaid Provisos to Section 80IA(4), it is clear that the Legislature intended to extend the said benefit under Section 80IA of the Act to an enterprise involved in (i) developing or; (ii) operating and maintaining or; (iii) developing, operating and maintaining any infrastructure facility. The term "infrastructure facility" has been defined in the Explanation and the same includes a toll road, a bridge or a rail system, a highway project, etc.

These are, obviously, big infrastructure facilities for which the enterprise in question should enter into a contract with the Central Government or State Government or Local Authority. However, the Proviso intends to extend the benefit of the said deduction under Section 80IA of the Act even to a transferee or a contractor who is approved and recognised by the concerned authority and undertakes the work of the said development of infrastructure facility or only operating or maintaining the same. The Proviso to sub-section (4) stipulates that subject to the fulfillment of conditions, the transferee will be entitled to the said benefit, as if the transfer in question had not taken place. It has been found by the Assessing Authority himself, in the present case, that the present Assessee Mis.

Chettinad Lignite Transport Services Private Limited under an Agreement dated 16.04.2002, captioned as Lignite Transport System with Mls.ST-CMS Electric Company Private Limited, had undertaken the work of developing the said railway sidings and was operating and maintaining the same.

on which, the Assessing Authority denied the said benefit was that the Assessee himself did not enter into any such contract with the Railways or with the Central Government.

9. The learned Tribunal, however, in our opinion, rightly applied the Proviso to Section 80IA

(4) of the Act and held that since the Assessee was recognised as contractor for these railway sidings, which undoubtedly fell under. the definition of "infrastructure facility", it was entitled to the said benefit under Section 80IA of the Act. The grounds on which the Assessing Authority denied the said benefit to the Asessee ignoring the effect of Provisos to Section 80IA(4), therefore, could not be sustained. The learned Tribunal, in our opinion, has rightly held that the Proviso does not require that there should be a direct agreement between the transferee enterprise and the specified authority for availing the benefit under Section 80IA of the Act. There is no dispute before us that the Assessee was duly recognised as transferee or assignee of the principal contractor M/s.

ST-CMS Company Private Limited and was duly so recognised by the Railways to operate and maintain the said railway sidings at Vadalur and Uthangalmangalam Railway Stations. The findings of fact with regard to the said position recorded by the learned Tribunal are, therefore, unassailable and that clearly attracted the first Proviso to Section 80IA(4) of the Act.

10. The learned counsel for the Revenue relied upon a decision of this Court in the case of M/s.Covanta Samalpatti Operating Private Limited, Chennai-20 v. The Assistant Commissioner of Income Tax, Company Circle I (3), Chennai-34, reported in (2018) 93 Taxmann 38. In the said case, the claim of the Assessee company, which was engaged_in power generation, for deduction under Section 80IA of the Act was denied by the Revenue on the ground that the Assessee Undertaking had not been set up for generation and distribution of power and that the Assessee was only a contractor for the maintenance work of power plant, which was owned by Samalpatti Power Corporation Private Limited (SPCL). On these facts, the Court held that the Assessee was not entitled to deduction under Section 80IA of the Act. We do not find any parity of facts of the said case with the facts available before us. The power generating companies are entitled to deduction under Section 80IA of the Act in different sub clauses viz., under Section 80IA(4)(iv) of the Act. Where

there is no such Proviso, as is available in clause (i) of Section 80IA(4) of the Act, which deals with deduction to enterprise involved in developing, operating and maintaining the infrastructure facilities. Obviously, if the Assessee is getting only fees for the maintenance of certain power generating plant, as was the case before the Coordinate Bench of this Court in Covanta case (supra), he may not be entitled to such deduction, but the fact situation before us is entirely different and, therefore, we do not find any support from the said case cited by the learned counsel for the Revenue.

11. We are, therefore, of the considered opinion that there is no merit in these appeals filed by the Revenue and the questions of law framed above deserve to be answered in favour of the Asessee and against the Revenue. We hereby do so. The appeals preferred by the Revenue deserve to be dismissed and accordingly, the same are dismissed. No costs."

3. The present Appeal deserves to be disposed of in the same terms. Accordingly, it is dismissed. No order as to costs. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar ssk.

To

1. The Registrar, Income Tax Appellate Tribunal, Madras "D" Bench , Chennai.

2. Commissioner of Income Tax, Appeals-I, Coimbatore.

3. The Assistant Commissioner of Income-tax, Company Circle-1(I), Coimbatore.

+1cc to Mr.Subbaraya Aiyar Padmanabhan, Advocate, S.R.No.32366 T.C.(A) No.9 of 2011 VG-I(CO) RRS(26/06/2019)