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24. As against the above, the learned CIT/Departmental Representative has vehemently contended that the assessee is only a civil contractor and not a developer of the infrastructure facility/project, He has contended that the assessee was paid periodically for the work executed by it, and so the assessee is not a developer but it is Government of Maharashtra in respect of Koyna project and APSEB in respect of Srisailam project.

25. He has specifically referred to pp. 5 to 11, 13 of assessment order and contended that the AO has observed that for claiming deduction under Section 80-IA by an enterprise, the enterprise should own such infrastructure facility, and that the enterprise should enter into agreement with the Government or local authority for (i) development or (ii) maintaining and operating or (iii) developing, maintaining or operating a new infrastructure facility; should transfer such infrastructure facility to the Government or local authority and that such enterprise should start maintaining infrastructure facility on or after 1st April, 1995. He has contended that the AO has drawn his finding that the assessee fulfils none of these conditions. He has contended that to claim deduction under Section 80-IA the assessee should have owned the infrastructure facility/project whereas the assessee did not own these two infrastructure facilities/projects and that the Koyna project belongs to Maharashtra Government and Srisailam project belongs to APSEB, a public sector undertaking of the Government of Andhra Pradesh.

53. We now proceed to consider the next condition of having entered into an agreement with Central Government or State Government or a local authority or any other statutory body for developing an infrastructure facility, as contained in Sub-clause (b) of Clauses (i) of Sub-section (4) of Section 80-IA. It is not in dispute, that the assessee has entered into an agreement with Government of Maharashtra for developing Koyna project and with APSEB for developing Srisailam project. APSEB is a statutory body. Thus, in respect of both the projects, the assessee is found to have fulfilled the condition contained in Sub-clause (b) of Clauses (1) of Sub-section (4) as well.

57. As against the above, the learned counsel for assessee has contended that as pointed out by the learned CIT, Departmental Representative himself, one of the connotations of "transfer" is transfer of possession, which is lawful and valid. The learned Authorised Representative of assessee drew our attention to specimen BOT agreement submitted by learned CIT, Departmental Representative in his paper book and contended that as per said 'BOT' agreement, the possession of land which is owned by the Government is initially handed over to the developer, who built the infrastructure facility thereon, operated and maintained it and thereafter transferred the same to the Government by handing over the possession. He then took us through the extracts of the agreements entered into by the assessee with the Maharashtra Government for the Koyna project and the APSEB for the Srisailam project which had similar terms and conditions on possession. He has accordingly contended that the assessee built/developed the infrastructure facility on the land provided by Government/APSEB and thereafter transferred such infrastructure facility to the Government/APSEB in terms of the agreement.

59. We have considered the rival contentions, as also the relevant material on record referred to by the parties. We may note that as per Section 80-IA(4)(i)(b), the infrastructure facility developed by the enterprise should be transferred to Government within the period stipulated in the agreement. It had been the contention of the learned CIT/Departmental Representative that since the land on which infrastructure facility has been developed, always belonged to the Government and assessee has already been paid for construction work, there is no question of "transfer" of infrastructure facility by the assessee. However, we are unable to agree with this contention of the learned CIT/Departmental Representative. At the time of hearing before us, it was pointed out by the learned counsel for assessee that land was handed over to the assessee for carrying out development work. In this reference, he referred to Clauses 12 of agreement with APSEB (i.e., p. 8 of assessee's paper book 2), and Clauses 42 of agreement with Government of Maharashtra (i.e., p. 32 of the assessee's paper book 2). He also stated that after completion of development of infrastructure facility, the same was transferred by handing over possession thereof. In support of this, he referred to p. 11 of assessee's paper book 1 for handing over of possession of infrastructure facility. We find that Section 80-IA(4)(i)(b) requires development of infrastructure facility and transfer thereof as per agreement and it cannot be disputed in view of the material on record that the assessee has transferred the infrastructure facility developed by it, by handing over possession thereof to the Government of Maharashtra/APSEB, as required by the agreement. The very handing over of the possession of the developed infrastructure facility/project is the transfer of infrastructure facility/project by assessee to the Government/authority. The handing over of infrastructure facility/project by developer to Government/local authority/statutory body takes place after recoupment of developer's costs whether it is 'BT' or 'BOT' or 'BOOT' and in BOT and BOOT this recoupment is by way of collection of toll therefrom whereas in 'BT' it is by way of periodical payment by the Government/local authority/statutory body. Since in 'BT' (the case of an assessee being a mere developer) the developer not being required/authorised to 'operate' has no option of recoupment of its costs by collection of tolls from infrastructure. The land involved in infrastructure facility/project always belongs to the Government/local authority/statutory body, whether it be the case of BOT or BOOT or BT, and it is handed over by the Government/local authority/statutory body to the developer for development of infrastructure facility/project. The same has been the position in the instant case as well. Undisputedly/undisputably, the deduction under Section 80-IA is also available to an assessee, who undertakes merely "development" of infrastructure facility without "operating" aspect of the same, Accordingly, in a case of 'BT', that is, a case of a mere 'developer' the recoupment of his costs has to be by Government/local authority/statutory body whether it be by periodical payment or by lump sum payment, and whether the payment is made while development work is in progress or when the same has been completed. In that view of the matter, the question of comparing the rights, title, or interest of an assessee (a developer) in infrastructure in the case of 'BT' with those of a developer in the case of 'BOT' or 'BOOT' is, in our considered opinion, of no relevance bearing on the issue, inasmuch as a developer seems to have almost same rights, title or interest (except regarding mode of payment or collection of tolls) in infrastructure facility whether it be the case of 'BT' or that of 'BOT' or 'BOOT', in view of the discussions made by us above. Accordingly, in the instant case as the activity of these two projects of infrastructure facility undertaken by the present assessee was of the kind of "BT" (build and transfer) being merely of 'development' and did not involve 'operate' aspect in respect of the same, the infrastructure facility developed by assessee had to be transferred and handed over to the Government of Maharashtra/APSEB on its completion only and without operating it, that is without resorting to the collection of toll therefrom for recoupment of its costs. Accordingly, in our opinion, the assessee has duly complied with this condition, as well. We, therefore, hold that ground No. 2 of Revenue's cross-objection has no merit and the same accordingly fails.