Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “F”, BENCH MUMBAI
आदेश / O R D E R PER R.C.SHARMA (A.M): These are the appeals filed by the Revenue against the order of CIT(A)-19, Mumbai dated 21/02/2012 for the A.Y. 2008-09 and 2009-10 in the matter of order passed u/s.143(3) of the IT Act. 2. Grievance of Revenue in both the years pertains to disallowance of deduction claimed u/s.80-IA of the IT Act. 3. At the outset learned AR placed on record the order of the Tribunal in the group concern M/s. Patel Pratibha JV in IA No.200/Mum/2015 for the A.Y.2010-11, order dated 28/09/2016, wherein assessee’s claim of deduction u/s.80-IA((4) was allowed by the Tribunal.
5497/Mum/2012 M/s. Unity Pratibha Consortium 4. We had carefully gone through the orders of the authorities below and found that assessee’s claim for deduction u/s.80IA was allowed by the CIT(A) after having the following observation., 4.3 I have carefully considered the facts of the case, arguments of the Assessing Officer and the written submissions of the Authorised Representative of the appellant. As discussed in earlier para of this appeal order, after the Introduction of Explanation to sub-section (13) of section 80-lA, with retrospective effect from 01.04.2000, the only person barred from claiming deduction under this section is a work-contractor. It is an undisputed fact that the appellant is not a sub-contractor and appellant has used his own resources to execute the work. Therefore, as per the section itself, the appellant, solely engaged in the work of development and transfer of infrastructure facilities, is entitled to claim deduction u/s. 80-lA on the income thus arising. I have gone through various decisions, as relied by the Ld. AR, that are being dealt with as under: - It has been held in the decision of M/s Patel Engineering (supra) as under:- "We find that Finance Act, 1995 inserted clause (4A) for providing deduction to any enterprise carrying on the business of developing, maintaining and operating any infrastructure facility Sub-clause (iii) of sub- section (4A) provides the condition that the Infrastructure facility is operated on or after the first day of April, 1995. In respect of facility whose operation and maintenance has already started before 1st April, 1995, an assessee was not eligible for deduction under section 80-1A. The Finance Act, 1999 has enlarged the scope of section 80-IA and with effect from assessment year 2000-01 any enterprise is carrying on the business of any maintaining and operating the infrastructure facility is also entitled to deduction under section 80-IA(4) and any enterprise which is developing as well as maintaining and operating, the infrastructure facility is also entitled to deduction under section 80- lA (4). It is noteworthy that the condition at clause (c:) which reads "It has stated or starts operating and maintaining the infrastructure facility on or after 18th day of April, 1995" Is obviously applicable to an enterprise which is "maintaining and operating' the infrastructure facility, it cannot apply to the case of an enterprise, which has undertaken merely development of infrastructure facility, and not its 'maintenance and operation' and so the question of 'operating and maintaining' of infrastructure facility by such enterprise before or after any cut-off date cannot arise, However, if the contention of the learned CIT, Departmental Representative is accepted, it would obviously understandably Iead to manifestly absurd results. When the Act provides deduction for a person who is only developing 'the Infrastructure facility, unaccompanied by 'operating' thereof by such person, there can be no question of providing a condition for such an enterprise to start operating and maintaining the infrastructure facility on or after 1st April. 1995. In that view of the matter we find substance in the contentions of the learned Authorised Representative of assessee and inescapably we have but to hold 5497/Mum/2012 M/s. Unity Pratibha Consortium that the condition at clause (c) is applicable to an enterprise, which is carrying on the business of maintaining and operating or developing, maintaining and operating an infrastructure facility. As such, viewed as above, we hold that since the assessee is only a developer of the infrastructure project subsection (4) is not applicable to the present assessee. Hence the Assessing Officer's objection that the appellant is not entitled to deduction Under section 80-lA as one of the conditions, as stipulated in Sec.80-IA(4)(c) is not fulfilled, does not hold good after the Introduction of Explanation to subsection (13) of Sec.80-lA and after the decision in the case of M/s. Patel Engg. Ltd. (supra) as discussed above. Therefore, even though the clause of operating of Infrastructure facility is not fulfilled by the appellant since it is not applicable to it, it is entitled to claim deduction u/s.80-IA. 4.5 It has been further observed by the Hon Mumbai ITAT in matter of the ACIT v Bharat Udyog Limited 24 SOT 412 that- "9. The interpretation of revenue is absurd also in view of the rational of the provisions of section BO-IA (4) (I). From the assessment year 2000-01, deduction is available if the assessee carries on the business of anyone of the abovementioned three types of activities. When an assessee is only developing an infrastructure facility/project and is not maintaining nor operating it, obviously such an assessee will be paid for the cost incurred by it; otherwise, how will the person, who develops the infrastructure facility project, realise its cost? If the infra- structure facility, just after its development, is transferred to the Government, naturally the cost would be paid by the Government. Therefore, merely because the transferor has paid for the development of infrastructure facility carried out by the assessee, it cannot be said that the assessee did not develop the infrastructure facility. If the interpretation canvassed by the revenue authorities is accepted, no enterprise, carrying on the business of only developing the infrastructure facility, would be entitled to deduction under section 80-IA(4), which is not the intention of the law. If a person who only develops the infrastructure facility is not paid by the Government, the entire cost of development would be a loss in the hands of the developer as he is not operating the infrastructure facility. When the Legislature has provided that tae income of the developer of the infrastructure project would be eligible for deduction, it pre-supposes that there can be income to developer, i.e. to the person who is carrying on the activity of only developing infrastructure facility. Obvious as it is, a developer would have income only if he is paid for development of infrastructure facility, for the simple reason that he is not having the right/authorisation to operate the infrastructure facility and to collect toll there from, has no other s0l!rce of recoupment of his cost of development. Considered as such, the business activity of the nature of "BT" (build and transfer) also falls within eligible construction activity, that is, activity eligible for deduction under section 80-IA in as much as mere 'development' as such and unassociated / unaccompanied with 'operate' and 'maintenance' else falls within such business activity as is eligible for deduction under section 80-IA. Therefore, merely because the present assessee was paid by the Government, for 5497/Mum/2012 M/s. Unity Pratibha Consortium development work, it cannot be denied deduction under section 80-IA(4). A person, who enters into a contract with another person will be a contractor no doubt; and the assessee having entered into an agreement with the Government agencies for development of the infrastructure projects, is' obviously a contractor but that does not derogate the assessee from being a developer as well, The term "contractor" is not essentially contradictory to the term "developer"(emphasis applied). On the other hand, rather section 80-IA (4) itself provides the assessee should develop the infrastructure facility as per agreement with the Central Government, State Government or a local authority. So, entering into a lawful agreement and thereby becoming a contractor should, in no way, be a bar to the one being a developer. Therefore, merely because, in the agreement for development of infrastructure facility, assessee is referred to as contractor or because some basic specifications are laid down, it does not detract the assessee from the position of being a developer; nor will it debar the assessee from claiming deduction under section 80-lA (4)" 4.6 Ld. AR further has further relied upon the decision dated 08/06/2011 of Pune Bench of Hon. ITAT in matter of M/s Laxmi Civil Engineering Pvt. Ltd v Addl. CIT ITA 766/PN/2009 in which it has been held as under: The judgment of the Hon'ble High Court is delivered in the case of CIT v ABG Heavy Engg Ltd of 2009, who is a contractor for the JNP Trust and that contactor, assessee is found to be an eligible developer for making claim of deduction u/s section 80lA (4) of the Act. From the above, it is evident that the person who only develops the infrastructure does not have the occasion to operate and maintain the infrastructure. It is further evident that the harmonious reading is necessary and mandatory in view of High Court's judgment in the case of an enterprise carrying on business or developing which is the case of the assessee, all the conditions referred to clause (i) of section 80lA (4) should refer to the conditions as applicable to the developer. In other words, the developer who is only developing the infrastructure facilities since he does not operate and maintain Infrastructural facilities, cannot be expected to fulfil the condition at sub clause (c) which is an impossibility and the requirements to fulfil the said condition shall amount to absurdity and therefore uncalled for. Therefore, We find requirement of harmonious reading of sub-clause (c) vis-a-vis of clause (i) of section 80lA (4) of the Act. Thus, the discussion in High Court's decision in paragraph-22 extracted above, is directly applicable to the facts of the case and eventually is entitled for the deduction under section 80lA (4) of the Act. 4.7 Ld. AR further has further relied upon the decision dated 15/02/2010 of Hon. Bombay High Court in matter of CIT v M/s ABG Heavy Engg Ltd ITA No 1687 of 2009 in which it has been held as under: "The fact that in such a Scheme, an enterprise would not operate the facility itself was not regarded as being a statutory bar to the entitlement to a deduction under, Section 80lA of the Act. The Court connot be unmindful in the present case of the underlying objects and reasons for a grant of deduction to an enterprise engaged in the development of an infrastructure 5497/Mum/2012 M/s. Unity Pratibha Consortium facility. The provision was intended to give an incentive to investment for infra structural growth in the country. The requirement that the operation and maintenance of the infrastructure facility should commence after 1st April 19.95 has to be harmoniously construed with the main provision under which a deduction is available to an assessee who develops; or operates and maintains; or develops, operates and maintains an infrastructure facility. Unless both the provisions are harmoniously construed, the object and intent underlying the amendment of the provision by the Finance Act of 2001 would be defeated. A harmonious reading of the provision in its entirety would lead to the conclusion that the deduction is available to an enterprise which (i) develops; or ii) operates and maintains; or (iii) develops, maintains and operates that infrastructure facility. " In the light of the ratio of the above decision of Hon. Bombay High Court being the jurisdictional high court, observation of the AO that in absence of the operation and maintenance, assessee is not eligible for the deduction u/s 80lA is without any merit and cannot be upheld clause (i) of section 80lA (4) should refer to the conditions as applicable to the developer. In other words, the developer who is only developing the infrastructure facilities since he does not operate and maintain Infrastructural facilities, cannot be expected to fulfil the condition at sub clause (c) which is an impossibility and the requirements to fulfil the said condition shall amount to absurdity and therefore uncalled for. Therefore, we find requirement of harmonious reading of sub-clause (c) vis-a-vis of clause (i) of section 80lA (4) of the Act. Thus, the discussion in High Court's decision in paragraph-22 extracted above, is directly applicable to the facts of the case and eventually is entitled for the deduction under section 80lA (4) of the Act. 4.7 Ld. A.R further has further relied upon the decision elated 15/02/2010 of Hon. Bombay High Court in matter of CIT v M/s ABG Heavy Engg Lld of 2009 in which it has been held as under: "The fact that in such a Scheme, an enterprise would not operate the facility itself was not regarded as being a statutory bar to the entitlement to a deduction under Section 80lA of the Act. The Court cannot be unmindful in the present case of the underlying objects and reasons for a grant of deduction to an enterprise engaged in the development of an infrastructure facility. The provision was intended to give an incentive to investment for infrastructural growth in the country. The requirement that the operation and maintenance of the infrastructure facility should commence after 1st April 1995 has to be harmoniously construed with the main provision under which a deduction is available to an assessee who develops; or operates and maintains; or develops, operates and maintains an infrastructure facility. Unless both the provisions are harmoniously construed, the object and intent underlying the amendment of the provision by the Finance Act of 2001 would be defeated. A harmonious reading of the provision in its entirety would lead to the conclusion that the deduction is available to an enterprise which (i) develops; or (ii) operates and maintains; or (iii) develops, maintains and operates that infrastructure facility. "
5497/Mum/2012 M/s. Unity Pratibha Consortium In the light of the ratio of the above .decision of Hon. Bombay High Court being the jurisdictional high court, observation of the AO that in absence' of the operation and maintenance, assessee is not eligible for the deduction u/s 80lA is without any merit. 4.8 It is observed from the perusal of the assessment order that Ld. AO has laid a lot emphasis on explanation inserted to the section 80lA by Finance Act (No.2) 2009 which has been made operational retrospectively with effect from 1st April 2000, which is as under:- "For the removal of doubts, it is hereby declared that 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 State Government) and executed by the undertaking or enterprise referred to in sub-section (1) " Ld. Assessing Officer has even held that as per the amendment under the Finance Act 2009, it is clear that any contract awarded by the Central or State Government does not qualify for the deduction under section 80lA. Above Interpretation canvassed by the Assessing Officer, is devoid of any merits The explanation has been misconstrued by him. Correct interpretation of the impugned explanation is that what has been debarred from the claiming the deduction is the business which is in the nature of contract from any person and the business of the development of infrastructure facility under the contract which is not the works contract is eligible for the deduction. In the light of the above principle, it would be imperative to examine whether the business of the assessee is in nature of the works contract or something more than that Followings are the undisputed facts arising from the audited financial statements: a. Assessee has arranged various equipment, plants and machineries that are required for the execution of the work either on his own or on hire. b. Assessee has arranged for all the materials and resources for the projects. c. As a matter of fact, assessee has incurred Rs. 2.92 Crores as purchases of various materials and Rs. 83.40 Lacs for equipment hire and has purchased machineries worth Rs. 22.59 Lacs on his own and spent Rs. 6.30 Crores on other direct expenses on execution work during the year under consideration.
5497/Mum/2012 M/s. Unity Pratibha Consortium d. Airport Authority of India has not given to. assessee anything except the payment of amount of monthly billing. No other material or equipment has been supplied by AAI. On the basis of the above facts legal propositions is to be analysed. It has been pointed out by the Ld. AR during the hearing that in the section 80IB (10) which provides the deduction from taxable income from the business of development of housing project, identical explanation with retrospective effect from 1st April 2001 has been inserted by Finance (No.2) Act 2009 which is as under: [Explanation. -For the removal of doubts, it is hereby declared that nothing contained in this sub-section shall apply to any undertaking which executes the housing project as a works contract awarded by any person (including the Central or State Government). It is clear that effect of the above explanation is identical to that in section 80lA to disqualify the business of execution of works contract after segregating the same from development contract. In the context of the section 80IB (10) after examining the retrospective effect of explanation Hon. Gujarat High Court in matter of CIT v Radhe Developers 204 TAXMANN 543 (ITA 546 of 2008) has held as under: Para 24 The submission that the contract is not a contract of sale bscause, specifications are provided to the manufacturer by the purchaser cannot be accepted. That has not been the understanding of the law at any point of time The fact that the purchaser provides specifications to the manufacturer has never been construed even by the Revenue to be a circumstance which should lead to the inference that the contract is not a contract of sale. Firstly, the circulars issued by the Central Board of Direct Taxes right since 29 May, 1972 consistently took the position that furnishing of specifications to the manufacturer of goods by the purchaser would not detract from a contract being regarded as a contract for sale so long as the property in the goods passes upon delivery The consideration which was regarded by the Revenue as having relevance was whether the material was supplied to the contractor by the Government, or, as the case may be, by a specified person. Where the material is provided by the purchaser and the work of fabrication or manufacture is carried out by the contractor, the agreement would, it was clarified, constitute a contract for work. On the other hand, where a manufacturer produces goods to the specifications of the purchaser and the property passes to the purchaser only upon delivery, the contract would be regarded as a contract of sale if the raw material is sourced by manufacturer and is not supplied to him by the purchaser. Secondly, the consistent view which held the field in several High Courts was that contracts where (i) property passes to the purchaser upon the delivery of the goods and (ii) the raw material was sourced by the manufacturer and was not supplied by the purchaser do not fall within the scope and ambit of Section 194C.
5497/Mum/2012 M/s. Unity Pratibha Consortium The judgment of the Division Bench of this Court in matter of BDA Ltd., therefore, clearly reflected the position of law that providing a specification to the manufacturer who produces the article or thing would not detract from the nature of the transaction as a sale so long as the purchaser had not supplied raw material to the seller; and there was nothing to indicate that the seller was captive unit of the purchaser. Such a contract would be a contract of sale. Para 28, In other words, the circumstance that the requirements or specifications are provided by the purchaser is not regarded by the statute as being dispositive of the question as to whether a contract constitutes a contract of work or sale. What is of significance is whether material has been purchased from the customer who orders the product. When the material is purchased from the customer who orders the product. it constitutes a contract of work while on the other hand, where the manufacturer has sourced the material from a person other than the customer, it would constitute a sale.(emphasis supplied) 4.9 . In the context of the above following facts are undisputed: a. Assessee has procured his own materials and they were not given by Airport Authority of India. b. In other words, materials and resources needed for the execution of the project have not been purchased by assessee from AAI and have been bought from his own suppliers. 4.10 By considering the above facts and legal proposition in light of the decisions of Hon. Gujarat High Court and Hon. Bombay High Court, it is he la that contract of the project under which assessee has executed the infrastructure development project is not the work contract as meant in the explanation to section 80lA and on this account assessee is eligible for the deduction uls 80lA. 4.11 During the course of appeal proceedings, It was pointed out that the transfer in question was not as understood In terms of capital gains provisions but in general parlance i.e. after the facility was developed the same was to be given back to the Government authority, etc which was as per the terms of the agreement. Thus the development was as per the agreement with the government and if the agreement contained giving back the facility the question of transfer did not arise and hence, even this observation was not in consonance with the provisions of section 80lA of the Act. 4.12 I have carefully considered the facts of the case, arguments of the Assessing Officer and the written submissions of the Authorised Representative of the appellant. It Is the requirement as per section 80IA (4)(i)(b) that the infrastructure facility developed by the enterprise should oe transferred to the Govt. within 5497/Mum/2012 M/s. Unity Pratibha Consortium the period stipulated In the agreement. It is the AO's case that in BOOT and BOT there was limited ownership which was transferred to the Govt or Statutory authority, but in BT, as there was no such right or interest in the infrastructure facility there could not be any transfer. It is pertinent again to refer to the decision of the Mumbai ITAT in the case of M/s, Patel Engg. (supra) where similar question arose of whether there could be any transfer of Infrastructure facility in the absence of any 'rights' or 'interest' as in the case of a BT i.e., a mere developer: It was observed that in a case of a BT, the only way of recoupment of cost was by way periodical or lumpsum payment by the Govt. / the Statutory authority, whether during the progress or after completion of the development work. It was further held as under :- "in that view of the matter, the question of comparing the right, title, or interest of an assessee (a developer) in infrastructure in the case of 'BT with those of a developer in the case of 'BOT or 'BOOT' is in our considered opinion, of no relevant bearing on the issue, in as much as a developer seems to have almost same rights, title or interest (except regarding mode of payment or collection of tolls) in infrastructure facility whether it be the case of BT or that of BOT or BOOT, in view of the discussions made by us above." 4.13 Therefore it is clear that the AO's objection on this ground too is not sustainable and hence, held that the appellant is entitled to claim deduction u/s. 80-IA. 4.14 To summarise the issue at hand, In view of following facts, VIZ. (a) the amendment to section 80-IA(4)(i) to include as eligible business - (i) developing or (ii) operating and maintaining or (iii) developing, operating or maintaining infrastructure facility; as also (b) The introduction, with retrospective from 01.04.2000, of the Explanation to sub section (13) of section 80-IA, whereby It has been clarified that the deduction u/s. 80lA is available to an undertaking or enterprise who makes investment and executes development work and not to any person entering into a work contract; and (c) the various decisions of the various courts have exactly similar facts as the appellant's, allowing the claim of deduction u/s. 80-1A, the action of the AO in rejecting the appellant's claim of deduction u/s. 80- IA on grounds that - (a) The appellant was not a developer but merely a contractor, (b) The concept of BOT I BOOT was absent, and. (c) Conditions specified u/s. 80-IA (2) and 80-IA (4) (i)(c) were not satisfied, (d) Assessee does not fit in the category of persons for whom benefit of this provision was introduced. (e) The assessee is engaged in business of work contract within the meaning of the explanation to section 80lA cannot be upheld. The AO has in the assessment order, without any further Elaboration, merely stated that the facts in the case of M/s. Patel Engg. Ltd. (supra) are "not identical with this case and some argument has been raised in this order which have not been considered by Hon. ITAT while deciding the Case of Patel Engg." On the 5497/Mum/2012 M/s. Unity Pratibha Consortium contrary, however, as has been examined above, not only are the facts exactly similar, but the very same issues as raised by the departmental OR in the case of M/s. Patel Engg. Ltd. have been raised by the AO. 4.15 On the basis of the detailed discussion as above, it is held that the appellant is entitled to claim deduction u/s.80-IA. Therefore Ground Nos.2 and 3 are allowed.
We had also carefully gone through the orders of the Tribunal in case of group concerns of the assessee wherein the claim of deduction u/s. 80-IA (4) was decided in favour of assessee after having the following observation:- 10. We have considered rival contentions and carefully gone through the orders of authorities below and found from the record that assessee has entered into an agreement with the Local Authority as stipulated in terms of provisions of section 80- IA(4)(i)(b) of the Act and developing the infrastructural facilities. The financial, technical and all the other resources required for the development of the infrastructure facility were of the appellant and it was not correct that the MCGM financed the infrastructure facility developed by the assessee. The appellant carried out the entire development of its own by giving specifications and necessary Designs/plans as per the location of the site, which was done by the technical experts employed by the assessee. Thus, the assessee did the entire development of the infrastructure facility. We also found that the cost of development of the infrastructure facility was paid to the assessee and the same was received by the assessee as per the bills raised. The MCGM while making the payments, deducted tax at source under the provisions of section 194-C of the Act as the development of infrastructure facility was as per the agreement entered into which was contract between the Government Authority and the assessee and the provisions of Section 194-C of the Act were applicable. However, merely because the tax was deducted in terms of provisions of section 194-C of the Act, It did not make the assessee a mere contractor executing the works contract. In the development of the project it was the technical personnel of the assessee that made the proper specifications etc. from time to time as per the location of the site and as the project progressed. Developer does not mean merely a person who was conceiving the idea. Any enterprise developing infrastructural facilities is a developer of such facility since all the responsibility of the project was that of the enterprise from the start of the project till Its completion, Therefore, It would not be said that merely because the idea was conceived by the government and more Importantly on the land, etc. which was in domain of the government, that the government was the developer. For this purpose reliance may be placed on the decision of the Mumbai ITAT in the case of ACIT v. M/s Pratibha Industries Limited 141 ITO 151) and ACIT vs Bharat Udyog Limited 24 SOT 412 and decision of Jaipur ITAT in matter of Om Metal Infraprojects Limited ITA 722/JP/200S and decision of the Rajkot ITAT in the case of M/s Tarmat Bel JV ITA 1111/RJT/2010 and decision of Pune bench of ITAT in matter of Mahalaxmi Construction Corporation 5497/Mum/2012 M/s. Unity Pratibha Consortium Limited v. ACIT ITA. 433/PN/2007 and decision of Pune bench of ITAT in matter of Pratibha Construction & Engineering Pvt Ltd. vs. ACIT ITA 27S/PN/10 and decision of Pune bench of ITAT in matter of Laxmi Civil Engg Pvt. Ltd. vs Add!. CIT ITA 766/PN/2009 and decision of Chennai Bench of ITAT in matter of ACIT v. RR Construction and decision of Hyderabad Bench of ITAT in matter of GVPR Engineers v. ACIT ITA No. 1473/HYD/2011 and decision of Hyderabad Bench of ITAT in matter of KMC Constructions Ltd. v. ACIT ITA No. 84/HYD/2010 and decision of Hyderabad Bench of ITAT in matter of Koya and Company Construction Pvt Ltd. vs. ACIT ITA 221/HYD/2009.
The issue is also squarely covered by the decision of Hon’ble Bombay High Court in matter of ABG Heavy Industries Limited ITA 2121 of 2009 against which SLP of Revenue has been dismissed by Hon. Apex Court. The fact that the TDS was deducted did not in any way bar the appellant from claiming the benefit of deduction u/s.80-IA, as the fact remained that the appellant was a developer of Infrastructural facilities.
With regard to the AO’s objection that assessee is neither BOT nor BOOT, we found that the wordings of the section prior to the amendment made w.e.f. 01.04.2000 did not have any alternative by usage of the word 'OR' in sub-section (4) of section 80lA of the Act and hence, the provision of section 80lA of the Act was available only to an assessee who not only developed but after developing also operated and maintained the Infrastructure facility. Thus, while introducing the provisions of section 80lA of the Act, the concept of BOT /BOOT prevailed and it was in this context that the Department issued circular nO.717 dated 14/8/1995, which clearly explained the new provisions of section 80-lA of the Act in terms of Infrastructural development. While doing so, the Legislature itself realized that such concept was not feasible in all cases and therefore the provisions of section 80-IA of the Act were substantially relaxed and the benefits of section 80-IA of the Act were enlarged by providing for deduction to three categories as under:- (i) enterprise being a developer; OR (ii) enterprise being operating and maintaining; OR (iii)enterprise developing, operating and maintaining. Thus, the concept of BOT IBOOT underwent changes in the year 2000. If the Intention was only to give benefit to enterprises on the income earned from operating and maintaining the Infrastructure facility, In that case, the provision would not have been amended in such a manner so as to also allow benefit to the enterprise which was merely developing the facility. Further, there would have been no necessity to make the amendment if the enterprise was to be allowed in respect of Income earned from operating and maintaining the facility. When the provision of section 80lA of the Act had been substantially amended and where the enterprise was only a developer of the Infrastructure facility, deduction could not be denied under section 80-lA of the Act on the ground that the concept of BOT/BOOT was the main requirement for getting benefit of deduction under section 80-lA of the Act.