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"The hallmark of the BOT model is that it uses private investment to undertake the infrastructural development that has historically been the preserve for the public sector. In a BOT project a private company is given a concession to build and operate a facility that would normally be built and operated by the Government. The private company is also responsible for financing and designing the project. At the end of the concession period the private company return ownership to the Government. The concession that is granted by the Government to the private company is essentially a recognition of the fact that the private company has financed the project in a major way and, therefore, it should be granted an opportunity to recover its costs and make profits for a limited period of time before transferring the facility to the Government."

40. The learned CIT/Departmental Representative also contended that the assessee was not a developer, also for the reason that in the case of development of infrastructure by a private party, the promoter, that is the private party undertakes the job of drawing the design of project whereas here in the instant case the assessee has undertaken the development work based on the basic guidelines and specifications/drawings by and large, though not all, laid down by the Government/APSEB. In this regard, he has referred to p. 78 of paper book of Revenue being internal p. 8 of the specimen format of agreement to lay emphasis on his contention. He has contended that in the case of private sector development of infrastructure facility, the limited ownership for the time being vests with the private promoter/developer though the ultimate ownership does vest with the Government or statutory body. He has contended that it is in lieu of private funding and risk taken that the private party is granted concession to recover toll by operating the infrastructural facility and in this regard he has also referred to pp. 79 and 80 of paper book of Revenue. He has also contended that the assessee does (sic).

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.

68. We have considered the rival contentions as also the relevant material on record. We may note that the statutory provision as contained in Section 80-IA provides for "development of infrastructure facility". It nowhere provides that entire infrastructure project is to be developed by one enterprise. It is revealed from record that both the projects were multi-purpose projects for water supply, irrigation and power generation. The assessee has developed such part of the project, as was for supply of water from river/lake to turbine. Therefore, the assessee has developed "infrastructure facility" for supply of water and for irrigation. Merely because development work done by assessee is a point to point milestone of a multi-purpose project, it would not debar the assessee from claiming deduction under Section 80-IA(4), so long as the nature of development made by assessee falls within the ambit of "infrastructure facility" and since we have found it established above that development work carried out by assessee was for development of infrastructure facility, the assessee cannot justifiably be denied of the deduction under Section 80-IA, merely because the assessee has not developed the entire project. We hold accordingly.