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* In some places flowering shrubs should be planted to make median more colourful and attractive.

* Water falls fountains and cascades with illumination shall be installed.

* 2 inch gauge ornamental grills of suitable height shall be installed both sides of the medians.

7. The assessee filed return of income claiming deduction under Section 80-IA(4) of the Act contending that it has constructed bus shelters, beautified the road median, put up the street lights and constructed foot bridge which is the part of the infrastructure development and is entitled for deduction under Section 80-IA(4) of the Act. Section 80-IA was enacted by the Government in order to give encouragement to the private industries who are involved in infrastructural development. The CBDT circular No.717 dated 14.08.1995, reads as under:

10. In the instant case, reading of the agreement entered into by the assessee with BBMP clearly reveals that the assessee was only a licensee for putting up 11 bus shelters at various places, beautifying the road medians at Diary Circle, putting up 199 light poles in four roads; construction of the foot bridge near ISCKON temple and maintaining the same for the specified period. The assessee was permitted to erect advertisement hoardings to recoup the expenditure for putting of the same. No ownership or other right accrued to it apart from the license to earn revenue from the advertisements placed on these structures. Duration of the agreement shows that the arrangement is only for a temporary period. The income is derived only from the advertisement and not from the income from infrastructure development. The Assessing Officer after looking into the agreement entered into between the parties and taking into consideration the provision of Section 80-IA came to a conclusion that the work carried on by the assessee will not come under the "Infrastructure Development" and accordingly, denied the benefit under Section 80-IA(4) of the Act. The said order was confirmed by the First Appellate Authority. However, The Appellate Tribunal set aside the order passed by the First Appellate Authority and held that the assessee not only built bus shelters, road medians, street lights, but also maintained the same for a specified period as per the agreement. Hence, the infrastructure work carried out by the assessee falls under the definition of Section 80-IA(4) and entitled for deduction. The said order was questioned by the Revenue.

11. Sri.E.I.Sanmathi, learned counsel appearing for the appellants contended that the word 'income' derived from eligible business referred to in Section 80- IA is the income derived by developing, operating and maintaining a road including toll road, bridge or rail system. However, the assessee has only beautified the existing road and put up the bus shelter as per the permission granted by the BBMP for its advertisement business. The main income derived is not from construction of bus shelters it has developed, but from the advertisement. The work carried on by the assessee do not fall under the definition of infrastructure development. In other words, to claim deduction under Section 80-IA, the assessee has to earn from the activities which amount to infrastructure development which are prescribed specifically in the explanation to the aforesaid provision. Basically, the assessee is only an advertising company involved in outdoor and media advertising and it has no experience of civil construction. As per the agreement entered into between the assessee and BBMP, the said work was entrusted to the assessee in order to enhance the aesthetic beauty of the road divider, and expenditure incurred for the said work has to be recouped by erecting advertisement hoardings. By no stretch of imagination, the income derived from the advertisement hoardings can be treated as income earned from the infrastructure development. In support of his contention, he relied upon the judgments reported in (1999) 237 ITR 579 in the case of CIT v/s STERLING FOODS; (2009) 317 ITR 218 in the case of LIBERTY INDIA v/s CIT; and (2003) 263 ITR 378 in the case of PANDIAN CHEMICALS v/s COMMISSIONER OF INCOME TAX.

16. To avail the benefit under Section 80-IA i.e. infrastructure facility under which the enterprises shall carry on the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility which fulfill the conditions enumerated under sub-Section 4 of Section 80-IA of the Act. From the reading of some of the clauses of the agreement entered into, in the instant case, between the assessee and the BBMP, it is very clear that the assessee has to beautify the road medians of existing roads and put up hi-tech bus-shelters using the modern techniques and material for construction of bus-shelters which in any case cannot be treated as erection/development of permanent infrastructure. At the most, it can be treated as a temporary structure which can be either removed or shifted without any difficulty and hassle. Development of such temporary structure cannot be termed or treated as permanent infrastructure development as contemplated by Section 80-IA of the Act. The explanation of Section 80-IA make it clear, what infrastructure facility means. In the present case the assessee for erecting bus shelters has to deposit EMD amount with the BBMP and only after expiry of term of lease, EMD amount will be refunded. One of the requirements of the infrastructure facility is that income has to be derived from the infrastructure developed by the developer. In the instant case, the BBMP imposed a condition that the assessee shall not collect any money from the user of the bus shelters as well as the foot bridge. There is no income from the development of infrastructure apart from income from the advertisement business.