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4. Pursuant to the order of the ITAT(supra), notice was issued by the AO to the assessee calling upon it to make submissions on specific issues.In the impugned order, the AO has observed that the decision of the Hon‟ble ITAT in the case of NCC SMC (IV) in ITA No. 4842/M/06, 514/M/09, 785/M/10 was against the appellant as the Hon‟ble ITAT had in that the order dated 09.02.2010, following the larger bench decision in the case of B.T. Patil & Sons Belgaum Construction Pvt. Ltd.

vs ACIT, decided the issue against the assessee. However, in this regard, Page |7 ITA No.4242 4243 4244 4245 4246 4247 4248 4249 4250 4501/Mum/2019 A.Ys. 2003-04, 2004-05, 2005-06,2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2011-12& 2012-13 M/s Gleg Engineers Pvt. Ltd, Mumbai the ld.AR before us pointed out that the AO,failed to note that subsequently, NCC SMC (JV) had filed a Miscellaneous Application contending that in view of the subsequent decision of Hon‟ble Bombay High Court in the case of ABG Heavy Industries, 322 ITR 323, the larger Bench decision in the case of B.T. Patil & Sons Belgaum Construction Pvt. Ltd. was no more good law. The Miscellaneous Application filed by NCC SMC (IV) was allowed and a fresh order dated 20.06.2014 was passed the ITA No.4842/Mum/2006 which was referred to by the Hon‟ble ITAT in its order dated 23.11.2015 pertaining to this case.

(i) the appellant did not develop the entire project
(ii) deduction be available in enterprise engaged in (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining the infrastructure facility.

5.1 The Hon‟ble Tribunal did not give any new interpretation of provisions of sec 80IA(4). Rather, it gave a finding of fact that as per the interpretation of the decision of the Hon‟ble Bombay High Court in the P a g e | 20 ITA No.4242 4243 4244 4245 4246 4247 4248 4249 4250 4501/Mum/2019 A.Ys. 2003-04, 2004-05, 2005-06,2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2011-12& 2012-13 M/s Gleg Engineers Pvt. Ltd, Mumbai case of ABG Heavy Industries Ltd., deduction u/s 80 IA(4) was admissible in the NCC-SMC(JV) for AY 2004-05. In other words, the Hon‟ble ITAT had merely followed the decision of the Hon‟ble Bombay High Court in the case of ABG Heavy Industries Ltd. The Hon‟ble ITAT certainly did not give an interpretation that all work contractors who execute work allocated relating to any project as mentioned in section 80IA(4) shall be eligible for deduction under that section. The concluding part of the order of the Hon‟ble ITAT in the case of NCC-

7.6 It would be relevant to mention here that the coordinate bench of ITAT, Mumbai in the case of NCC SMC Indu Jv, Thane vs Department Of Income Tax in ITA No.3070/Mum/2014 (AY 2009-10) dated 03.02.2016 involving similar projects allowed the claim of deduction 80IA(4) on almost identical set of facts while placing reliance on the judgement in the case of CIT vs. ABG Heavy Industries Ltd.(supra). The relevant parts are reproduced as under:
"This is an appeal filed by the revenue against the order of CIT(A), Mumbai, for the assessment year 2009-2010, in the matter of orderpassed u/s.143(3) of the I.T. Act, wherein following grounds have been raised by the revenue :-

4. We have carefully gone through the order of the Tribunal in assessee‟s own case/associated concern‟s case as reproduced above and found that issue 80IA(4) was decided by the Tribunal. The facts and circumstances in the case during the year under consideration are exactly same. Respectfully following the order of the Tribunal, we direct the A.O. to allow the claim for deduction u/s 80IA(4) of the Act."

8. We also found that the Tribunal in case of NCC-SMC(JV) and M/s SMC Unity(JV), ITA No.4842/Mum/2006 and ITA No.514/Mum/2009, respectively decided the issue of 80IA in favour of the assessee vide order dated 20-6-2014. The Tribunal in case of NCC SMC Unit (JV), ITA No.7398/Mum/2011, vide order dated 25-6-2014 has also decided the similar ground in favour of the assessee. The „H‟ bench of Mumbai Tribunal in case of P a g e | 58 ITA No.4242 4243 4244 4245 4246 4247 4248 4249 4250 4501/Mum/2019 A.Ys. 2003-04, 2004-05, 2005-06,2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2011-12& 2012-13 M/s Gleg Engineers Pvt. Ltd, Mumbai M/s SMC Infrastructure Pvt. Ltd., ITA No.5503/Mum/2011 has also decided the issue of deduction u/s.80IA(4) in favour of the assessee. Respectfully following these orders of the Tribunal, we do not find any merit in the action of the AO for disallowing assessee‟s claim for deduction u/s.80IA by wrongly observing that assessee was working as a contractor and not as a developer of infrastructure project.