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However, the ITAT decided the issue in favour of the assessee vide order dated 1.12.2017 in the appeal of the assessee for assessment year 2012-13 by holding that the PCIT could not have done so without brining on record any differentiation between the project at Thural and other three projects. The Ld. PCIT, thereafter, proceeded to hold that the assessee could not draw any help from the earlier decisions on the ground that in the year under consideration, the facts of the 'Thural Contract' were entirely different from other contracts. She observed that the relevant assessment year under consideration, being the 4 t h year of Thural Contract', it was an operation and maintenance contract. That so far relevant assessment year i.e. 2013-14 was concerned, the fact whether the 'Thural Project' was a Development project or a 'works contract' had lost significance, as the assessee in the 4 t h year had to operate and maintain the project. That so far as the other eight projects were concerned, the same were in the development stage. She, therefore, observed that the facts of the 'Thural Project' of the year under consideration were different from other contracts and, hence, findings arrived by the Tribunal for assessment year 2011-12 vide order dated ITA No. 749-Chd-2018- Unipro Techno Infrastructure Private Ltd, Chandigarh 6.2.2017 and vide order dated 1.12.2017 in relation to the appeal of the assessee for assessment year 2012-13, quashing the order passed u/s 263 of the Act by the Ld. PCIT, were not applicable for the year under consideration. She also observed that so far as the reliance of the assessee on the order of the Tribunal in the case of sister concern 'M/s Kaveri Infrastructure (P) Ltd., Chandigarh vs ACIT' for the assessment year 2012-13 in ITA No. 14/Chd/2017 dated 22.3.2017 was concerned, the facts of the same are also not applicable to the year under consideration as in the said case also, in the relevant assessment year 2012-13, the sister concern of the assessee had not carried out any activity of development of infrastructure facility but also carried out only maintenance and infrastructure project, where the assessee was a developer or a 'works contract' had not been there for adjudication. She further observed that the 08 contracts undertaken by the assessee in the assessment year 2013-14 except the 'Thural Contract' were in the first and the second year of functioning and, hence, the same were at the development stage, therefore, the question which the Assessing Officer was required to examine is as to whether the said contract in relation to the 8 t h project were 'Infrastructure Development contract' or 'work contract. The Ld. PCIT, as mentioned above, held that the order of the ITAT passed on similar issue in relation to the appeal against the order of the PCIT passed u/s 263 of the Act were not applicable in the assessment year under consideration. She, thereafter proceeded to ITA No. 749-Chd-2018- Unipro Techno Infrastructure Private Ltd, Chandigarh discuss as to whether the contracts awarded to the assessee were 'Development project' or 'works contract'.

The assessee, admittedly, had entered into nine agreements up to the year under consideration for developing / providing Lift Irrigation schemes/ Lift Water Supply Scheme with various State Authorities such as Irrigation and Public Health Deptt, of Himachal Pradesh Govt. and that of Govt. of Uttrakhand. The contracts were composite contracts requiring the assessee not only to develop facility but also to operate and maintain the facilities for specific number of years i.e. firstly, the development of project which would take 1 to 3 years and then to operate and maintain projects for one to five years. So far as the 'Thural Project' is concerned, the question as to whether the project developed by the assessee was an Infrastructure development project / contract awarded by the Government, came into consideration before this Tribunal in the appeal of the assessee for assessment year 2011-12 and the Tribunal after considering the facts and circumstances of the case held that the 'Thural Project' was developed by the assessee as per the ITA No. 749-Chd-2018- Unipro Techno Infrastructure Private Ltd, Chandigarh composite contract awarded by the Government and would be eligible for deduction u/s 80IA(4) of the Income-tax Act. Then in the next year relevant to AY 2012-13, the assessee was awarded three more contracts of similar nature. The Ld. PCIT citing similar reasons as were given in her order for AY 2011-12, exercised her jurisdiction u/s 263 of the Act and held that the Assessing Officer had not properly examined the issue as to whether the contracts entered into by the assessee in respect of the three new projects were Infrastructure Development contracts allowable for deduction u/s 80IA or the same were simple works contracts specifically excluded from the applicability under the provisions of section 80IA as per explanation to sub section (13)of section 80IA of the Act. The Tribunal discussed the matter in detail and vide order dated 6.2.2017 in ITA No.361/Chd/2016 for assessment year 2011-12 & also vide subsequent order dated 1.12.2017 (ITA No. 867/Chd/2017) for assessment year 2012-13 and held that the Ld. PCIT had failed to differentiate the nature of the other three projects from the 'Thural Project'. After detailed discussion, the appeals of the assessee were allowed and the order of the Ld. PCIT u/s 263 of the Act was quashed.

17. We have gone through the discussion made by the Ld. PCIT on this issue and also considered the arguments of the Ld. DR on this point.

The observation of the Ld. PCIT that only if the project is to be developed by the assessee as per the specifications and designs approved by the Government that would fall in a definition of simple works contract and not a 'Infrastructure Development Contract' as provided u/s 80IA(4) of the Act, in our view, would disentitle each and every assessee who would carry out infrastructure development project in a contracts with a Union Government or State Government or Local Authority. Such / stated projects are to be carried out as per the term of the Government. However, what distinguishes and work contract from Infrastructure Development Contract' as per section 11A of the Act is that whether the contract has been granted for a specific work or it is a development of a facility as a whole and whether day to day control on the project and its manner of development is of the Government authorities or of the contractor. The Coordinate Lucknow Bench of the Tribunal in the case of 'M/s Vijay Infrastructure Limited, Lucknow vs ACIT', ITA No. 254/LKO/2015 & Others, order dated 30.10.2015 observed that if the assessee's duty is to develop infrastructure whether ITA No. 749-Chd-2018- Unipro Techno Infrastructure Private Ltd, Chandigarh it involves construction of a particular item as agreed to in the agreement or not and that the agreement is not for a specific work, it is for development of facility as a whole, the material required is to be brought in by the assessee by sticking to the quality and quantity irrespective of the cost of such material. The assessee utilizes its funds, its expertise, its employees and takes the responsibility of developing the infrastructure facility, the losses suffered in the process of such development would be that of the assessee. The assessee hands over the developed infrastructure facility to the Government on completion of the development and if the assessee has to undertake maintenance of said infrastructure for a particular period and during the said period, if any damages are occurred, it shall be the responsibility of the assessee , then such a contract would fall within the purview and scope of Infrastructure Development contract.

18. After considering the observations and objections made by the Ld. PCIT and in the light of the proposition laid down in the case laws, as discussed above, , we find that neither the Ld. PCIT could even point ITA No. 749-Chd-2018- Unipro Techno Infrastructure Private Ltd, Chandigarh out how the fact and nature of the projects carried out during the year under consideration were different from the projects earlier taken by the assessee which have already been held to be eligible for deduction u/s 80IA(4) of the Act being Infrastructure Facility Development Project, nor the Ld. PCIT could point out from the clauses of the agreement that they would not fall within the definition of infrastructure development project as provided u/s 80IA(4) of the Act. In our view, the Ld. PCIT has exercised her jurisdiction u/s 263 of the Act totaling bye- passing and in contradiction of the findings given by the Tribunal in the own cases of the assessee for earlier assessment years i.e. 2011-12 and 2012- 13 vide orders dated 6.2.2017 & 1.12.2017(supra). Further, it is found that all the material was put before the Assessing Officer including the copies of the contracts. The Assessing Officer has duly taken note of the nature of contract entered into by the assessee and held that the same were infrastructure facilities development contracts and eligible for deduction u/s 80IA of the Act. Hence, it cannot be said that the order passed by the Assessing Officer was erroneous or prejudicial to the interest of Revenue on this issue.