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7. As the assessee company is developing and operating port facilities, which amounts to developing of infrastructure facilities, the assessee claimed deduction in respect of its profits arising out of the BOT project with the Tuticorin Port Trust. The claim was under section 80IA of the Income-tax Act, 1961. The assessee has commenced its business operations from December 21, 1999 and, therefore, the

-5- ITA 1604 to 1607 of 2012 first year of assessment was 2000-01. But the assessee has exercised its option to claim the deduction under section 80IA for the first time in the assessment year 2004-05. Thereafter the assessee continued to claim the deduction in the subsequent assessment years.

(d) a port, airport, inland waterway, inland port or navigational channel in the sea."

                                -28-             ITA 1604 to 1607 of 2012


35.            The      undertaking/project       of     constructing

infrastructure facility in the nature of 7th Berth at Tuticorin Port is owned by the assessee. The assessee itself is the enterprise mentioned in section 80IA(4)(i)(a) of the Act. The enterprise is owned by a company registered in India, as the assessee company is incorporated in India. The law provides that the enterprise is owned by a company registered in India or by a consortium of such companies. Therefore, it is necessary that the enterprise is either owned by a single company registered in India or by a consortium of companies registered in India. In the present case, the enterprise of BOT project at Tuticorin Port is owned by the assessee, which a company incorporated in India. Therefore, it is seen that the assessee has satisfied the condition laid down in sub-clause(a) of clause(i) of sub-section(4) of section 80IA of the Act. It is not possible to hold that the BOT project developed by the assessee company at Tuticorin Port is owned by a consortium of companies consisting of two Singapore companies and one Indian company. Those three companies are only shareholders of the assessee-company. We should see that the shareholders are different from the company

-32- ITA 1604 to 1607 of 2012 law also, as there is no other indication, all these terms and expressions are used synonymously.

41. In the facts and circumstances of the case it is directly clear that the enterprise is the BOT project developed and operated by the assessee at Tuticorin Port and the assessee company is the owner of the project and that project is the only adventure of the assessee company. Literally speaking the undertaking or the enterprise as well as the company are one and the same. In that sense the assessee has entered into a BOT agreement with Tuticorin Port Trust, which means the assessee as an enterprise carrying on the infrastructure development business has entered into such an agreement. Thus it satisfies sub-clause(b) of clause(i) of sub-section(4) of section 80IA.

45. When the assessee company is a company incorporated in India and the assessee company itself carries on the activity of developing the infrastructure project, the expression "it" as provided in sub-clauses(a), (b) and (c) of clause(i) of sub-section(4) of section 80IA means the enterprise

-35- ITA 1604 to 1607 of 2012 and the assessee company are the same. There is no need to differentiate them.

46. If the contention of the Revenue is accepted, there should be one more company to be incorporated in India to own the assessee company, which is already incorporated in India. This is because the Revenue has treated the assessee company as an enterprise and not as the owner of the BOT project. According to the Revenue the assessee company incorporated in India is the enterprise mentioned in clause(i) of sub-section(4) of section 80IA and there should be another company incorporated in India to own the assessee company, which alone can claim the deduction available under section 80IA. This interpretation is too artificial. If this proposition is accepted, the assessee company should be a fully owned subsidiary of another company incorporated in India and the holding company alone will be entitled for the benefit under section 80IA. These are all far-fetched imaginations. The law is very simple as provided in section 80IA that the enterprise must be owned by a company incorporated in India and when that company