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35. He has also referred to his following arguments as contained on pp. 9 and 10 of his written submission :

"Circular No. 717, dt. 14th Aug., 1995 and the other circulars, notes and memoranda referred to above indicate and explain the legislative intent behind the concept of granting deduction relating to profits and gains derived from the business of any enterprise which has developed, or maintained and operated any infrastructural facility which is ultimately transferred to the Government/ public authority within the stipulated period of time. Therefore, perusal of all the circulars/memorandums/notes and clauses of the various finance bills referred to above, it is clear that the concept of BOT/BOOT has been incorporated in the provisions of Section 80-IA and the fundamental structure and philosophy of BOOT has remained constant through various amendments that have taken place from time to time. As the circulars specifically refer to the development of infrastructural facility through BOT/BOOT or similar schemes, it would be necessary to examine the scope and underlying philosophy of such schemes."
"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."

37. In his written submission, in para 15 on p. 12, it has further been contended as under :

"The underlying philosophy for a toll fee based structure is to recover investments and returns thereon from the users of the facility in order to minimise the need for public/Government financial support."

38. He has contended that BOOT and BOLT schemes also have more or less similar basic/main features.

39. He has further contended that the fundamental structure and philosophy of BOT/BOOT/BOLT have remained constant through various amendments and continues to be the same. He has contended that in the present case the assessee has not made any financial commitment or investment in these projects inasmuch as the Government is making periodical payment for the work executed by the assessee, and so there is no financial risk of assessee in the development of these projects with the result that there is no question of any development of infrastructure project by the assessee for the reason that the basic feature of BOT/BOOT schemes being the financial investment by the developer is absent in this case. In support of his contention, he has referred to CBDT Circular No. 717, dt. 14th Aug., 1995, notes on clauses of Finance Bill, 1999 and memorandum explaining provisions in the Finance Bill, 1999 as already mentioned above. He has contended that it is in lieu of private funding and risk taken that the private party is granted concession to recover toll. He has also contended that the various expenditure detailed by assessee are in the nature of expenditure and not investment.

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.