- (1.) THIS is an appeal by the Revenue, against the judgment of the learned Tribunal, dt. 31st Jan., 2005 [reported as Chetak Enterprises (P) Ltd. v. Asstt CIT (2005) 92 TTJ (Jd) 61 J -Ed.J, partly allowing the appeal of the assessee.
(2.) THE appeal was admitted on 13th Dec, 2005, by framing the following substantial question of law : Whether in the facts and circumstances of the case, the assessee company was right in finding that the assessee fulfilled the condition of Sub -section (4)(i)(b) of Section 80IA? We have heard learned counsel for either sides, and have gone through the orders of the authorities below. Before proceeding further, we may gainfully quote the relevant provisions of Section 80IA(4)(i)(a), (b), (c) and proviso, which reads as under: (4) This section applies to - - (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; (b) it has entered into an agreement with the Central Government or a State Government or a local authority or any other statutory body for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility; (c) it has started or starts operating and maintaining the infrastructure facility on or after the 1st April, 1995 : Provided that where an infrastructure facility is transferred on or after the 1st April, 1999 by an enterprise which developed such infrastructure facility (hereinafter referred to in this section as the transferor enterprise) to another enterprise (hereafter in this section referred to as the transferee enterprise) for the purpose of operating and maintaining the infrastructure facility on its behalf in accordance with the agreement with the Central Government, State Government, local authority or statutory body, the provisions of this section shall apply to the transferee enterprise as if it were the enterprise to which this Clause applies and the deduction from profits and gains would be available to such transferee enterprise for the unexpired period during which the transferor enterprise would have been entitled to the deduction, if the transfer had not taken place.'
(3.) THE matter relates to asst. yr. 2001 -02, the relevant previous year for which, being financial year 2000 -01 i.e. 1st April, 2000 to 31st March, 2001. The assessee is a private limited company, and claims 100 per cent deduction as provided under Section 80IA(4) of the Act. The learned AO found, that the work was granted to a partnership firm M/s Chetak Enterprises, and the mere fact, that the firm got itself registered as company, it cannot be said, that it fulfills the requirements of Section 80IA(4)(i)(a) and (b), inasmuch as no agreement was made by the company with the Government of Rajasthan for collection of toll tax w.e.f. 1st April, 2000, in supersession of original agreement dated 1st Dec, 1999, signed between the Government of Rajasthan and the firm Chetak Enterprises. The firm does not fulfill the requirements of Section 80IA(4)(i)(a) and (b), and is not entitled to claim deduction. In appeal, the learned CIT(A) maintained the order. However, in further appeal, the learned Tribunal set aside the two orders, and found the assessee to be entitled to deduction.;