Income Tax Appellate Tribunal - Cuttack
Shivam Condev Private ... vs Dcit, Central Circle-1, Bhubaneswar on 24 March, 2026
IN THE INCOME TAX APPELLATE TRIBUNAL
"CUTTACK BENCH, CUTTACK
VIRTUAL HEARING AT KOLKATA
BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER
AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER
ITA Nos. 656-659 & 661/CTK/2025
Assessment Years: 2015-16 to 2018-19 & 2020-2021
Shivam Condev Pvt. Ltd. The Deputy Commissioner
of Income Tax Circle -1 (1),
Plot No. 38, 1st Floor, Block-B, Bhuwaneswar,
Sector-A, Zone-D, Vs Aayakar Bhavan, Annex,
Mancheswar I E, Rajaswa Vihar, Bhubaneswar
Bhuwaneswar-10, Odisha - - 751010
751010
(PAN: AATCS1852Q)
(Appellant) (Respondent)
Assessee by : Shri S.K. Sarangi & Shri R.K. Das, ARs
Revenue by : Ms. Neeraja Pradhan, Pr. CIT, DR
Sanjib Banerjee, Sr. DR
Date of Hearing : 24.03.2026
Date of Pronouncement : 24.03.2026
ORDER
PER BENCH:
This is a batch of five appeals filed by the same assessee against the orders of the Ld. Commissioner of Income Tax (Appeals), Bhuwaneswar-2, [hereinafter referred to as the 'CIT(A)'] in appeal nos. CIT(A), Bhubaneswar-2/10669/2014-15, CIT(A), Bhubaneswar- 2/10479/2015-16 , CIT(A), Bhubaneswar-2/10539/2016-17, CIT(A), Bhubaneswar-2/11344/2017-18 and CIT(A), Bhubaneswar- 2/10474/2019-20, all dated 14.10.2025 for the assessment years 2015-16 to 2018-19 & 2020-2021 respectively. Since the issues involved in all these appeal are identical, therefore, these appeals have been heard together and are being disposed of by this common order for the sake of convenience.
ITA Nos. 656-661/CTK/2025 Shivam Condev Pvt. Ltd.
2. Shri S.K. Sarangi and Shri R.K. Das, ARs, represented on behalf of the assessee and Ms. Neeraja Pradhan, Pr. CIT, DR and Shri Sanjib Banerjee, Sr. DR represented on behalf of the revenue.
3. It was the submission that the assessee is in the business of construction. It was the submission that the assessee had undertaken contract works with National Highway Authority Of India and State Government in regard to road construction and development work. During the impugned years, the assessee had claimed the deduction of 80IA(4) as follows:
3.1 It was the submission that the Assessing Officer had denied the assessee's benefit of deduction u/s 80IA(4) by holding that the assessee 2 ITA Nos. 656-661/CTK/2025 Shivam Condev Pvt. Ltd.
was doing only works contract. It was the submission that it was not works contract and the assessee was precuring materials and doing construction work as per contract entered into by the assessee with either NHAI or the State govt. It was further submitted that road development work has been held to be an infrastructure development work by the Gujarat High Court in the case of PCIT vs. Montecarlo Ltd. in [2024] 162 taxmann.com 389 (Guj) wherein the Gujarat High Court held as under:
"This Tax Appeal is filed under Section 260A of the Income-tax Act, 1961 (for short 'the Act') arising out of the order dated 30th November, 2023 passed by the Income Tax Appellate Tribunal in ACIT v. Montecarlo Ltd. [IT Appeal No. 310 (Ahd.) of 2020] for A.Y. 2017-18, wherein the following question of law is proposed.
(a) Whether in the facts and circumstances of the case and in law, the learned ITAT has erred in deleting the disallowance of Rs.86,52,24,043/- made u/s. 80IA(4) of the Income Tax Act, 1961 by holding that the assessee is not a contractor but a developer of infrastructure facilities and is eligible for deduction u/s. 80IA(4) of the Income-tax Act, 1961?
2. The appellant revenue has proposed the question of law with regard to deleting disallowance made under Section 80IA(4) of the Act on the ground that assessee is not a contractor but developer of the infrastructure facility and is eligible for deduction under Section 80IA(4) of the Act as per the impugned order passed by the Tribunal.
3. Learned advocates for both the sides submitted that the issue with regard to considering the respondent as developer of the infrastructure facility so as to become eligible for deduction under Section 80IA(4) is no more res intigra in view of the order passed by this Court in Pr. CIT v. Montecarlo Construction Ltd. (Central) [2024] 161 taxmann.com 222 (Guj.)/[Tax Appeal No.786 of 2023, dated 19-12-2023] for the A.Y. 2008-09, whereby the Appeal filed by the revenue is dismissed on the same question of law. It was pointed out that while dismissing the Appeal of the revenue, this Court has taken into consideration the same order passed by the Tribunal which is impugned in this Appeal and on the basis of that, it was observed as under.
"3.9. With regard to the contention raised by the Revenue to the effect that the explanation to below Subsection 13 of Section 80IA of the Act is applicable and in response to such contention, the Tribunal analysed the scope of the explanation to below Subsection 13 of Section 80IA of the Act as under:
"11.6. Subsequently, an Explanation to section 80-IA of the Act was inserted by the Finance Act, 2007 and later on amended by the Finance (No.2) Act, 2009 but the same was made applicable with retrospective effect i.e. 1-4-2000. This explanation denies the benefit of deduction under section 80-IA(4) of the Act to a person who executes a project which is in the nature of works contract. At this juncture, it is 3 ITA Nos. 656-661/CTK/2025 Shivam Condev Pvt. Ltd.
pertinent to refer the provisions of the Explanation attached below section 80-IA(13) of the Act as reproduced below:
"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 subsection (1)."
3.10. Thus there are concurrent findings of fact arrived at by the CIT (Appeal) as well as the Tribunal that the assessee has undertaken the development of infrastructure facility and is eligible to claim the deduction under Section 80IA(4) of the Act.
3.11. Section 80IA of the Act provides for deduction from the gross total income of the assessee which includes any profit and gains derived by an undertaking or an enterprise from any business referred to in Subsection 4 of the Act as eligible business by providing deduction of an amount equal to the 100% of the profit and gains derived from such business for 10 consecutive assessment years. Subsection 4 of Section 80IA of the Act 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 or by an authority or a board or a corporation or any other body established or constituted under any Central or State Act;
(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 day of April, 1995:"
3.12. Explanation below Subsection 13 of Section 80IA of the Act was introduced by the Finance (No.2) of the Act, 2009 with effect from 01.04.2000, reads as under:
"[Explanation. 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).]"
Both the explanations basically emphasizes on the non allowability of deduction u/s 801A(4) to an enterprise merely executing "works contract" awarded by what so ever person including the Central or State Government. Accordingly any person who executes 4 ITA Nos. 656-661/CTK/2025 Shivam Condev Pvt. Ltd.
the Infrastructure l'acility related work in capacity of a "Developer" shall only be allowed deduction u/s 801A(4) of the Act.
Therefore, for claiming the deduction u/ s 801A(4) after the insertion of above explanation, the Assessee has to pass the test of "being Developer of infrastructure facilities", accordingly the Assessee was asked to prove & establish its capacity of "Developer of infrastructure facilities", accordingly the Assessee has made a detailed submission narrating the following facts & points to prove & establish its capacity as a "Developer of infrastructure facilities"
3.13. Sub-clause 1 of Sub-section 4 of Section 80IA of the Act provides that Section 80IA applies to any enterprise carrying on the business of "(1)developing, or (2)operating and maintaining or (3) developing operating and maintaining" any infrastructure facilities which fulfills the condition prescribed therein. In the facts of the case as held by the CIT (Appeals) as well as the Tribunal on giving a factual finding to the effect that the assessee has undertaken a work of development of infrastructure facilities by execution of the contract awarded to it as per the terms of the contract as enumerated by the CIT (Appeal) as under:-
"To examine whether the project assigned to this Appellant was in the capacity of a "Contractor" or the Appellant has executed the work as a "Developer" with respect to the ROAD PROJECTS, I have perused the terms of some of the agreements. My attention has been drawn on agreements with "Madhya Pradesh Road Development Corporation Limited", from which the Appellant have been awarded two Road Projects, wherein the scope of the work has been defined as follows:-
Sl. No. Name of Road Approx. Length in Scope of Bid/ Development
Km. Work
1 Package-1: Chindwara- Amarwara-Narsingpur" Road 103.3
Project: SH 47 Rehabilitation, Widening,
Upgradation &
2 Package-14: "Lakhnadon- Mandla-Dindori" Road Project: 149.8 Strengthening
SH 11 & 40
18. The Appellant has drawn my attention to the relevant clauses of the Tender Documents in support of its contention of being "Developer of the Infrastructure Facilities"
3.14. The CIT (Appeal) has further examined as to whether the project assigned to the assessee was in capacity of a contractor or the same was executed as a developer with respect to the canal projects, agreements were entered into by the assessee was analysed and tendered documents containing the terms and conditions of the project were taken into consideration with respect to the following aspects as to the entire investment in the project was to be made by the assessee. Interim payment to the tune of estimated contract value in respect of the development work done for each month after retention and other adjustments were to be made, security deposit was to be paid by the assessee, there was a penalty for delay, procurement of the material was the responsibility of the assessee, procurement of land for camp, for shop, labour camp etc. also the employment of qualified engineers, action and compensation in respect of bad work, defect liability of 5 ITA Nos. 656-661/CTK/2025 Shivam Condev Pvt. Ltd.
the accidents to persons in relation to Workman Compensation Act, indemnity insurance of the workmen employed. The CIT (Appeal) and the Tribunal considering such aspects of the tendered agreement, concurrently held that the assessee has entered into a development of infrastructure facility agreement and not the works contract."
4. Considering the above concurrent finding of facts, this Court dismissed the Tax Appeal No.786 of 2023 and therefore, this Tax Appeal is also dismissed as no question of law can be said to have arisen out of the impugned order passed by the Tribunal."
4. It was the submission that the decision of the Hon'ble Gujarat High Court was upheld by the Hon'ble Supreme Court on merits also in [2024] 162 taxmann.com 389. It was the submission that the assessee having done contract works in regard to infrastructure development as required u/s 80IA(4) and the assessee is entitled to the deduction u/s 80IA(4).
5. In reply, the ld. PCIT-DR submitted that the assessee is doing only works contract in so far as the roads are already existed in many cases and there was no mention of award of the works through BOT (build- operate-transfer). It was the submission that the assessee was only excluded work provided is the tender and it was basically a work contract.
6. We have considered the rival submissions. A perusal of the facts in the present case clearly shows that the assessee has taken contract with either NHAI or State Government and in some cases with East Coast Railway, South Eastern Railway, South East Central Railway etc. The assessee has undertaken contracts through tendering process. The tender provides for the assessee to undertake his entire work from the supply of the materials required for the development of the road till completion of the work and even retention money is retained in regard to tenders. The facts in the assessee's case is in pari materia with the 6 ITA Nos. 656-661/CTK/2025 Shivam Condev Pvt. Ltd.
decision of the Hon'ble Gujarat High Court in the case of PCIT vs. Montecarlo Ltd. referred to supra. This being so, respectfully following the referred decision of the Hon'ble Gujarat High Court in the case of PCIT vs. Montecarlo Ltd. which has been upheld by the Hon'ble Supreme Court by dismissal of SLP, the assessee is held to be doing development and infrastructure work and not as a works contract.
Consequently, the Assessing Officer is directed to grant the benefit of deduction u/s 80IA(4) as claimed by the assessee. Since identical issues are involved in all the appeals, our above findings will mutatis mutandis will apply to all the assessment years.
7. In the result, all the appeals of the assessee are allowed.
Kolkata, the 24th March, 2026.
Sd/- Sd/-
[Rajesh Kumar] [George Mathan]
लेखा सदस्य/Accountant Member न्याययक सदस्य/Judicial Member
Dated: 24.03.2026.
RS
Copy of the order forwarded to:
1. Appellant -
2. Respondent -
3. CIT(A)-
4. CIT- ,
5. CIT(DR),
//True copy//
By order
Assistant Registrar
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