M/S. HHA TANK TERMINAL PVT. LTD. V. ASST. COMMISSIONER OF INCOME TAX, CIRCLE

WP(C)/9322/2011

AI Insights

M/S HHA Tank Terminal Pvt. Ltd., represented by its manager Mr. K. Mohandas and senior advocate Sri Joseph Markose, filed a writ petition challenging the denial of a tax deduction claim under Section 80(1A) of the Income Tax Act for the assessment year 2008-09. The company had erected a storage tank for Cochin Port, which was certified by Cochin Port Trust as part of the port facility. However, the tax authorities denied the deduction, stating the facility was integral to port operations and not eligible for the deduction. The petitioner argued that similar claims had been accepted in previous years and cited a judgment where the court observed the facility qualified as infrastructure for tax deduction purposes. The court did not address the merits of the case due to the ongoing appeal and stay application but directed expedited hearings on both matters.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 756016 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 24-03-2011
• Assessment Year: misc
• Other Referred Cases: Ext.P3 judgment
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: JOESEPH
• Assessee Lawyers: JOSEPH MARKOSE
• Keywords: Deduction; Income Tax; Infrastructure facility; Stay of collection; Port Facility
• Section: 80-1A

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 WP(C).No. 9322 of 2011(M) --------------------------------- PETITIONER(S): ------------------- M/S.HHA TANK TERMINAL PVT.LTD., C.C.24/1869, MURAF AREA, INDIRA GANDHI ROAD, WILLINGDON ISLAND, COCHIN-682 003, REPRESENTED BY ITS MANAGER, MR.K.MOHANDAS. BY SRI.JOSEPH MARKOSE, SENIOR ADVOCATE ADVS. SRI.V.ABRAHAM MARKOS SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.TOM THOMAS (KAKKUZHIYIL) RESPONDENT(S): --------------------- 1. ASST.COMMISSIONER OF INCOME TAX, CIRCLE 1(2), ERNAKULAM. 2. COMMISSIONER OF INCOME TAX (APPEALS), KOCHI. BY ADV. SRI.JOSE JOSEPH, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J - - - - - - - - - - -- - - - - - - - - - - - - - W.P.(C)No. 9322 OF 20 11 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of March, 2011 J U D G M E N T Assessment under the provisions of Income Tax Act with respect of the year 2008-09 was finalised against the petitioner by virtue of Ext.P8 denying the claim made for deduction under Section 80(1A) of the Act. The petitioner is a company which had erected storage tank for Cochin Port for storing liquid cargo. The claim was made on the strength of Ext.P7 certificate issued by the Cochin Port Trust to the effect of certifying that the installation by the petitioner company forms part of the port facility in use. But the claim was rejected in Ext.P8 on the basis of the finding that the tank erected by the petitioner company form part of the port operation and that certificate does not state that the facilities formed for part of the port indicating that such structure is an integral part of the port. Contention of the petitioner is that with respect to the earlier assessment years such claims were allowed on the basis of very same certificate and in Ext.P3 judgment, this court has observed that the department has no .W.P.(C)No. 9322 OF 20 11 : 2 : case that what the assessce had set up is not an infrastructure facility for being considered for the benefit of the deduction. 2.However,it is evident that the petitioner had preferred statutory appeal against Ext.P8 as evidenced from Ext.P9 before the 2nd respondent . Ext.P10 is an application for stay filed before the 1st respondent . Under such circumstances I am not proposing to enter upon any finding regarding merits of the challenge against Ext.P8. Interest of justice will be served if a direction is issued to the respondents to have an early disposal of the appeal as well as the disposal of the stay petition filed before the 1st respondent. Under the above circumstances the writ petition is disposed of directing the 2nd respondent to consider and dispose of P9 appeal after affording an opportunity of hearing to the petitioner as early as possible at any rate within a period of 3 months from the date of receipt of a copy of this judgment . The 1st respondent is directed to consider and pass orders on Ext.P10 application filed seeking stay of collection of the balance tax and interest after affording an opportunity of hearing to the petitioner at the earliest possible at any rate within a period of one month .W.P.(C)No. 9322 OF 20 11 : 3 : from the date of the receipt of a copy of this judgment. Till such time the 1st respondent dispose of the stay petition,any further steps for the recovery of amount in dispute shall be kept in abeyance. (C.K.ABDUL REHIM, JUDGE) jkk "