Deputy Commissioner of Income-tax, V. Maharashtra State Warehousing Corporation, Pune

ITA 1014/PUN/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9134 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 09-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R G NAHAR
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO . 1014 /P U N/201 5 / ASSESSMENT YEAR : 20 1 1 - 12 DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 14, PUNE ....... / APPELLANT / V/S. MAHARASHTRA STATE WAREHOUSING CORPORATION, 583/B, MARKET YARD, GULTEKDI, PUNE 411037 PAN : AABCM3988M / RESPONDENT ASSESSEE BY : S HRI R.G. NAHAR REVENUE BY : SHRI RAJEEV KUMAR / DATE OF HEARING : 26 - 07 - 2017 / DATE OF PRONOUNCEMENT : 28 - 0 7 - 2017 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 7, PUNE DATED 30 - 04 - 2015 FOR THE ASSESSMENT YEAR 2011 - 12. 2 ITA NO . 1014/PUN/2015, A.Y. 2011 - 12 2. IN APPEAL THE DEPARTMENT HAS RAISED FOLLOWING GROUNDS ASSAILING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) : 1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN HOLDING THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION CLAIMED UNDER SECTION 80IA(4) OF THE I T ACT AMOUNTING TO RS . 79,43,510. 2) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN RELYING ON THE DECISION OF CONTAINER CORPORATION OF INDIA LTD VS ACIT (2012) 346 ITR 140 (DELHI) WHICH IS MISPLACED. 3) WHET HER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS ERRED IN ALLOWING RELIEF UNDER SECTION 43B OF RS . 24,93,706/ - THOUGH THE SAME WAS NOT PAID DURING THE PREVIOUS YEAR TO AY UNDER CONSIDERATION. 4) THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. 3. SHRI R.G. NAHAR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED AT THE OUTSET THAT ISSUES RAISED IN GROUND NOS. 1 AND 2 OF APPEAL BY THE REVENUE IS SQUARELY COVERED BY THE DECISION OF TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO. 820/PN/2013 FOR THE ASSESSMENT YEAR 2009 - 10 DECIDED BY THE TRIBUNAL ON 09 - 05 - 2016. THERE HAS BEEN NO CHANGE IN THE FACTS AND CIRCUMSTANCES IN THE ASSESSMENT YEAR UNDER APPEAL. THE COMM ISSIONER OF INCOME TAX (APPEALS) HAS ALLOWED ASSESSEES CLAIM OF DEDUCTION U/S. 80IA(4) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) BY FOLLOWING HIS OWN ORDER DATED 16 - 01 - 2015 FOR ASSESSMENT YEAR 2010 - 11. 4. IN RESPECT OF GROUND NO. 3 RAISED IN THE APPEAL BY THE REVENUE THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER HAD MADE ADDITION WITHOUT APPRECIATING THE FACTS OF THE CASE AND DOCUMENTS ON RECORD. THE ASSESSEE HAS REFLECTED ENTIRE TRANSACTIONS IN ITS BOOKS OF ACCOUNT. THE 3 ITA NO . 1014/PUN/2015, A.Y. 2011 - 12 COMMI SSIONER OF INCOME TAX (APPEALS) IN PARA 4.2 OF THE IMPUGNED ORDER HAS GIVEN DETAILED REASONS FOR ALLOWING THE CLAIM OF ASSESSEE. 5. ON THE OTHER HAND SHRI RAJEEV KUMAR REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE FINDINGS OF ASSESSING OFFICER IN DI SALLOWING THE CLAIM OF DEDUCTION U/S. 80IA(4) OF THE ACT AS WELL AS MAKING DISALLOWANCE U/S. 43B OF THE ACT. HOWEVER, THE LD. DR FAIRLY ADMITTED THAT THE ISSUE WITH REGARD TO ASSESSEES ELIGIBILITY TO CLAIM DEDUCTION U/S. 80IA(4) OF THE ACT HAS BEEN CONSI DERED BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2009 - 10. 6. W E HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW . THE GROUND NOS. 1 AND 2 R AISED IN THE APPEAL BY THE DEPARTMENT IS AGAINST THE ALLOWING OF CLAIM OF DEDUCTION U/S. 80IA(4) TO THE ASSESSEE. THE ASSESSEE IS A STATE GOVERNMENT UNDERTAKING. THE ASSESSEE HAS SET UP INLAND CONTAINER D EPOT (ICD) AND C ONTAINER FREIGHT S TATION (CFS) FOR HANDLING BONDED WAREHOUSE ON THE LEASEHOLD LAND OF S IDCO IN THE VICINITY OF JAWAHARLAL NEHRU PORT TRUST. THE ASSESSING OFFICER DISALLOWED THE CLAIM OF ASSESSEE U/S. 80IA(4) ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FURNISH A CERTIFICA TE FROM THE CONCERNED PORT AUTHORITIES CERTIFYING THAT THE STRUCTURE AT THE PORT FOR STORAGE, LOADING AND UNLOADING ETC. FORM PART OF PORT. ACCORDING TO ASSESSING OFFICER FURNISHING OF THE SAID CERTIFICATE IS MANDATORY IN VIEW OF BOARDS NOTIFICATION DATE D 23 - 06 - 2000 FOLLOWED BY CIRCULAR NO. 10 OF 2005 DATED 16 - 12 - 2005. WE FIND THAT DISALLOWANCE OF CLAIM OF DEDUCTION U/S. 80IA(4) WAS MADE BY THE ASSESSING OFFICER IN THE CASE OF ASSESSEE IN ASSESSMENT YEAR 2009 - 10 , FOR SIMILAR REASONS. THE MATTER TRAVELLE D UP TO THE TRIBUNAL. THE TRIBUNAL IN ITA NO. 820/PN/2013 (SUPRA) AFTER 4 ITA NO . 1014/PUN/2015, A.Y. 2011 - 12 CONSIDERING VARIOUS DECISIONS AND THE FACTS OF THE CASE HELD THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IA(4) OF THE ACT. THE RELEVANT EXTRACT OF THE FINDINGS OF THE TRI BUNAL ON THE ISSUE ARE AS UNDER : 13. THE GROUND NO. 2 IN THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 10 RELATES TO DISALLOWANCE OF DEDUCTION ` 4,50,17,204/ - U/S. 80IA(4) OF THE ACT. THE ASSESSEE HAS SET UP INLAND CONTAINER DEPOT (ICD) AND CONTAI NER FREIGHT STATION (CFS) FOR HANDLING BONDED WAREHOUSING FACILITIES ON LEASEHOLD LAND OF SIDCO. THE ICD ESTABLISHED BY THE ASSESSEE IS LOCATED AT ABOUT 3 - 4 KMS. AWAY FROM THE BOUNDARY WALL OF JAWAHARLAL NEHRU PORT TRUST AND THE UNIT COMMENCED ITS ACTIVIT IES IN DECEMBER, 2004. THE UNIT IS SAID TO BE MODIFIED UNDER CUSTOMS ACT AS CUSTOMS AREA FOR THE PURPOSE OF STORAGE, STUFFING, DESTUFFING AND CLEARANCE OF EXPORT AND IMPORT. THE ASSESSEE CLAIMED DEDUCTION U/S. 80IA(4) IN VIEW OF BOARDS NOTIFICATION NO . F.NO.205/17/2000/ITA - 2 DATED 23 - 06 - 2000. THE ASSESSING OFFICER DENIED THE CLAIM OF THE ASSESSEE U/S. 80IA(4) ON THE GROUND THAT CBDT CIRCULAR DATED 23 - 06 - 2000 (SUPRA) HAS BEEN WITHDRAWN W.E.F. 16 - 12 - 2005 AND THE BOARD PORT TRUST HAS STATED THAT THE AREA FROM WHERE ASSESSEE IS OPERATING DOES NOT FORM PART OF THE PORT. IN FIRST APPEAL THE COMMISSIONER OF INCOME TAX (APPEALS) UPHELD THE FINDINGS OF ASSESSING OFFICER AND DENIED THE BENEFIT OF DEDUCTION U/S. 80IA(4) TO THE ASSESSEE. 14. THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE DECISION OF CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. JWC LOGISTICS PARK PVT. LTD. (SUPRA). IN THE SAID CASE THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF RUNNING CO NTAINER YARD, INLAND CONTAINER DEPOT (ICD), CONTAINER FREIGHT STATION (CFS), BONDED WAREHOUSE ETC. THE ICD/CFS OF THE ASSESSEE COMPANY STARTED ITS OPERATIONS IN YEAR 2004. THE ASSESSEE CLAIMED DEDUCTION U/S. 80IA(4) IN RESPECT OF ICD/CFS FACILITIES SET U P BY THE ASSESSEE. THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE DID NOT FULFILL THE REQUIRED CONDITIONS AS PRESCRIBED FOR CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT. THE ASSESSING OFFICER FURTHER OBSERVED THAT THE ASSESSEE HAS NOT BEEN ABLE TO SHOW ANY AGREEMENT WITH THE CENTRAL GOVT./STATE GOVT./LOCAL AUTHORITY OR ANY OTHER STATUTORY BODY FOR DEVELOPING OR DEVELOPING, OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY. THE ASSESSEE CARRIED THE MATTER IN A PPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE COMMISSIONER OF INCOME TAX (APPEALS) BY FOLLOWING THE DECISION OF THE MUMBAI SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S. ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT IN ITA NOS. 5018 TO 5022 & 5059 FOR ASS ESSMENT YEARS 2004 - 05 TO 2009 - 10 DECIDED ON 06 - 07 - 2012 AND THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) VS. ACIT IN ITA NO. 7055/MUM/2011 FOR THE ASSESSMENT YEAR 2008 - 09 DECIDED ON 31 - 08 - 2012 ALLOWED THE CLAIM OF THE ASSESSEE. AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) THE DEPARTMENT FILED APPEAL BEFORE THE TRIBUNAL. THE GROUND BEFORE THE TRIBUNAL FOR ADJUDICATION WAS : 2. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE READS AS UNDER : WHETHER THE CIT(A) - I, THANE IS RIGHT IN LAW IN HOLDING THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S. 80IA OF THE INCOME TAX ACT, 1961 EVEN THOUGH ACTIVITIES UNDERTAKEN BY THE ASSESSEE DO NOT FALL 5 ITA NO . 1014/PUN/2015, A.Y. 2011 - 12 WITHIN CLAUSE (D) OF THE EXPLANATION TO 80IA(4) DEFINING THE TERM INFRASTRUCTURE FACILITIES? THE TRIBUNAL DISMISSED THE APPEAL OF THE DEPARTMENT BY HOLDING AS UNDER: 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AN D THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. FROM THE STATEMENT OF FACTS FILED BY THE REVENUE, WE FIND THE ONLY GRIEVANCE OF THE REVENUE AGAINST THE ORDER OF THE CIT(A) IS THAT THE ORDER R ELIED ON BY THE CIT(A) IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHAVE SHEVA) LTD. (SUPRA) HAS BEEN CHALLENGED BY THE REVENUE BEFORE THE HONBLE HIGH COURT AND THE SAME IS PENDING. THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY CONCEDED THAT THE ISSU E HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL AND TO KEEP THE MATTER ALIVE THE REVENUE HAS FILED THIS APPEAL SINCE THE DECISION OF THE TRIBUNAL IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHAVE SHE VA) LTD. (SUPRA) HAS BEEN CHALLENGED BY THE REVENUE BEFORE THE HONBLE HIGH COURT. 4.1 THE LD. COUNSEL FOR THE ASSESSEE FILED THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CONTAINER CORPORATION OF INDIA LTD. VS. ACIT REPORTED IN 346 ITR 140 AND SUBMITTED THAT THE HONBLE HIGH COURT IN THE ABOVE DECISION HAS HELD THAT THE INCOME OF ICDS IS ELIGIBLE FOR DEDUCTION U/S.80IA(4)(I) OF THE I.T. ACT. HE ALSO RELIED ON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF UNITED LINER AGENCI ES OF INDIA (PVT.) LTD. VS. JCIT AND VICE VERSA ORDER DATED 28 - 06 - 2013 FOR A.YRS 2006 - 07 AND 2009 - 10 RESPECTIVELY. HE SUBMITTED THAT SINCE THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY VARIOUS DECISIONS OF THE TRIBUNAL AND THE HONBLE DELHI HIGH COURT, THEREFORE, THE GROUND RAISED BY THE REVENUE SHOULD BE DISMISSED. SINCE THE LD.CIT(A) WHILE ALLOWING THE CLAIM OF DEDUCTION U/S.80IA(4) HAS FOLLOWED THE DECISION OF THE TRIBUNAL, THEREFORE, MERELY BECAUSE THE REVENUE HAS CHALLENGED THE DECISION OF TH E TRIBUNAL BEFORE THE HONBLE HIGH COURT, THE SAME IN OUR OPINION CANNOT BE A GROUND TO TAKE A CONTRARY DECISION THAN THE VIEW TAKEN BY THE TRIBUNAL CITED (SUPRA). IN THIS VIEW OF THE MATTER, WE UPHOLD THE ORDER OF THE CIT(A) AND THE GROUND RAISED BY THE R EVENUE IS DISMISSED. 15. WE FIND THAT THE FACTS OF THE CASE OF THE ASSESSEE IS SIMILAR TO THAT OF THE CASE DECIDED BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. JWC LOGISTICS PARK PVT. LTD. (SUPRA). WE OBSERVE THAT THE HON'BLE BOMB AY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. CONTINENTAL WAREHOUSING CORPORATION (SUPRA) HAS UPHELD THE ORDER OF TRIBUNAL. THE HON'BLE COURT AFTER CONSIDERING THE PROVISIONS OF SECTION 80IA(4) OBSERVED : 39. ..WE ARE CONCERNED WITH SUB - SECTION (4) AND AS IT READ AT THE RELEVANT TIME. IT SAYS THAT THIS SECTION APPLIES TO ANY ENTERPRISE CARRYING ON THE BUSINESS OF DEVELOPING OR OPERATING AND MAINTAINING ANY INFRASTRUCTURE FACILITY WHICH FULFILLS ALL THE CONDITIONS, NAMELY, IT IS OWNED BY A COMPANY REGISTERED IN INDIA OR BY A CONSORTIUM OF SUCH COMPANIES OR BY AN AUTHORITY OR A BOARD OR A CORPORATION OR ANY OTHER BODY ESTABLISHED OR CONSTITUTED UNDER ANY CENTRAL OR STATE ACT , IT HAS ENTERED INTO AN AGREEMENT WITH THE CENTRAL GOVERNMENT OR A LOCAL AUTHORITY OR ANY OTHER STATUTORY BODY FOR DEVELOPING OR OPERATING AND MAINTAINING OR DEVELOPING, OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY AND IT HAS STARTED OR STARTS OPERATING AND MAINTAINING THE INFRASTRUCTURE FACILITY ON OR AFTER 1ST DAY OF APRIL, 1995. THE EXPLANATION DEFINES THE INFRASTRUCTURE FACILITY TO MEAN, INTER 6 ITA NO . 1014/PUN/2015, A.Y. 2011 - 12 ALIA, A PORT, AIRPORT, INLAND WATERWAY, INLAND PORT OR NAVIGATIONAL CHANNEL IN THE SEA. THE WORD ' INLAND PORT' WAS ALWAYS THERE IN CLAUSE (D). WHAT WAS THERE PRIOR TO ITS SUBSTITUTION BY FINANCE ACT OF 2007 WITH EFFECT FROM 1ST APRIL, 2008, WERE THE WORDS 'OR INLAND PORT'. NOW THE WORD 'OR' IS DELETED, BUT THE WORDS ARE 'INLAND PORT OR NAVIGATIONAL CHANNEL IN THE SEA'. THUS, AN 'INLAND PORT' WAS ALWAYS WITHIN THE CONTEMPLATION OF THE LEGISLATURE AND IT IS TREATED SPECIFICALLY AS A INFRASTRUCTURAL FACILITY. THEREFORE, TO THAT EXTENT MR. DASTUR IS RIGHT I N HIS SUBMISSION. THE HON'BLE COURT FURTHER AFTER CONSIDERING THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CONTAINER CORPORATION OF INDIA LTD. VS. ASSTT. COMMISSIONER OF INCOME TAX REPORTED AS 346 ITR 140 (DELHI) CONCLUDED AS UNDER : 46. WE HAVE FOUND THAT THERE IS A SPECIFIC REFERENCE MADE BY THE DELHI HIGH COURT TO THE COMMUNICATION DATED 24 TH APRIL, 2007, FROM THE GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE. THESE ARE THEN CLASSIFIED AS INLAND PORTS AND CATEGORISED ACCO RDINGLY. THERE IS A FURTHER COMMUNICATION FROM THE MINISTRY OF COMMERCE AND INDUSTRY AS WELL. WE DO NOT FIND THAT A VIEW DIFFERENT THAN THE ONE TAKEN BY THE DELHI HIGH COURT IS POSSIBLE. BEARING IN MIND THE FACILITIES THAT ARE EXTENDED AND FOR PURPOSES OF LOADING, UNLOADING, STORAGE AND WAREHOUSING OF THE GOODS THAT THE FACILITY IS A INFRASTRUCTURE FACILITY. THAT IT HAS EASY ACCESSIBILITY TO THE PORT AND PARTICULARLY THE SEA - PORT GIVES IT CERTAIN ADVANTAGES AND BENEFITS AND WHICH CLEARLY ACCRUE TO THOSE USI NG THE PORT FOR IMPORT AND EXPORT OF CARGO. FURTHER, THE LOCATION THEREOF IS ALSO A RELEVANT FACTOR AS NOTED. IN SUCH CIRCUMSTANCES, THE RELIANCE BY THE SPECIAL BENCH AND EQUALLY BY THE BENCH OF THE TRIBUNAL IN THE IMPUGNED ORDERS ON THE DIVISION BENCH JU DGMENT OF THE DELHI HIGH COURT IS THUS WELL PLACED. 47. WE DO NOT FIND THAT ANYTHING OTHER AND FURTHER THAN THIS MATERIAL IS RELIED. HOWEVER, EVEN THE HIGH COURT OF JUDICATURE AT MADRAS HAS REFERRED IN ITS DIVISION BENCH DECISION TO THE VIEW TAKEN BY THE DELHI HIGH COURT. THE DIVISION BENCH IN PARAGRAPHS 10 AND 12 OF ITS JUDGMENT EXTENSIVELY REFERRED TO THE TRIBUNAL'S CONCLUSIONS. IT ALSO REFERRED TO THE SPECIAL BENCH DECISION OF THE TRIBUNAL. THUS, WHEN THE PROPOSAL TO SET UP A CFS HAS BEEN ACCEPTED BY TH E GOVERNMENT, THERE IS NO REQUIREMENT OF EITHER A SPECIFIC AGREEMENT AS CONTENDED BY MR. SURESH KUMAR. NOR CAN IT BE SAID THAT BY VIRTUE OF ANY CERTIFICATION OF THE JNPT AND ITS SUBSEQUENT WITHDRAWAL THE POSITION UNDERGOES ANY CHANGE. ONCE THE FACILITY IS NOTHING BUT A INFRASTRUCTURAL FACILITY SET UP AND WITHIN THE PRECINCTS OF THE PORT, THEN, CONSIDERING AND EVEN OTHERWISE HAVING CONSIDERED ITS PROXIMITY TO THE SEA PORT AND ITS ACTIVITIES THAT WE HAVE NO DOUBT AND IT CAN BE SAFELY CONCLUDED THAT THE DEDUCT ION ADMISSIBLE UNDER SUB - SECTION (4) OF SECTION 80 - IA CAN BE CLAIMED BY BOTH THE ICDS AND CFSS. 16. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. A.L. LOGISTICS (P.) LTD. (S UPRA) HAS HELD THAT CFS IS PART OF INLAND PORT AND THEREFORE, IS AN INFRASTRUCTURE FACILITY AS DEFINED IN EXPLANATION TO SECTION 80IA(4)(I) OF THE ACT. 17. IN VIEW OF THE VARIOUS DECISIONS DISCUSSED ABOVE AND THE FACTS OF THE INSTANT CASE WE ACCEPT GROUND NO. 2 RAISED IN THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 10. THUS, WE HOLD THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IA(4) IN RESPECT OF THE ICD/CFS SET UP BY THE ASSESSEE. 7 ITA NO . 1014/PUN/2015, A.Y. 2011 - 12 7. THE LD. DR HAS NOT BEEN ABLE TO CONTROVERT THE FINDINGS OF TRIBUNAL ON THIS ISSUE. RESPECTFULLY, FOLLOWING THE DECISION OF CO - ORDINATE BENCH OF THE TRIBUNAL , GROUND NOS. 1 AND 2 RAISED IN THE APPEAL BY THE REVENUE ARE DISMISSED BEING DEVOID OF ANY MERITS. 8. IN GROUND NO. 3 THE REVENUE HAS ASSAILE D THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN ALLOWING THE CLAIM OF RS.24,93,706/ - U/S. 43B OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) ACCEPTED THE CLAIM OF ASSESSEE BY OBSERVING AS UNDER : 4.2 I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND PERUSED MATERIAL ON RECORD. THE ISSUE CONTESTED RELATES TO DISALLOWANCE OF RS.24,93,706 / - . THE AFORESAID AMOUNT RELATES TO LAND REVENUE CHARGES WHICH HAVE BEEN BIFURCATED UNDER TWO HEADS AND INCLUDES PRIOR PERIOD EXPENSES OF RS .13,34,484/ - & OF RS.11,59,224/ - TOTALLING TO RS.24,93,706/ - . THE ENTIRE AMOUNT HAD BEEN DISALLOWED U/S. 43B DURING A.Y. 2010 - 11 AS IS ALSO CLEARLY EVIDENT FROM THE STATEMENT OF INCOME FILED BY THE APPELLANT. HOWEVER, DURING THE YEAR UNDER CONSIDERATION THE SAID SUM HAS BEEN REVERSED AND ITS REFERENCE CAN BE FOUND IN ANNEXURE IX OF TAX AUDIT REPORT FOR THE YEAR AND HENCE, AS THE ENTIRE AMOUNT IS REVERSED IT AUTOMATICALLY AMOUNTS TO OFFERING INCOME IN THE YEAR OF REVERSA L BY CLAIMING THE EXPENSES LESS TO THAT EXTENT. THE AFORESAID FACT BECOMES MORE EVIDENT FROM THE LEDGER EXTRACT OF PRIOR PERIOD EXPENSES, LEDGER EXTRACT OF LAND REVENUE CHARGES AND THE OUTSTANDING EXPENSES ACCOUNT INCLUDING THE JOURNAL ENTRIES OF THE SAID REVERSAL. THE ASSESSING OFFICER HAS DISALLOWED THE AFORESAID AMOUNT WITHOUT MAKING ANY ENQUIRY OR VERIFICATION IN THIS REGARD. THE APPELLANT DURING THE YEAR IN ANY CASE HAS ALREADY DISALLOWED THE STATUTORY PAYMENTS NOT PAID DURING A.Y. 2011 - 12 AS IS EVIDEN T FROM THE COMPUTATION OF INCOME OF RS.43,08,122 / - (ON ACCOUNT OF VARIOUS STATUTORY HEADS). THUS, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IS NOT IN ACCORDANCE WITH THE FACT OF THE CASE AND HENCE, THE SAID DISALLOWANCE MADE BY THE A.O. IS LIABLE TO B E DELETED. 9. THE LD. DR HAS NOT BEEN ABLE TO SUBSTANTIATE ANY PERVERSITY IN THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) , WARRANTING OUR INTERFERENCE. WE DO NOT FIND ANY MERIT IN THE GROUND RAISED BY THE DEPARTMENT. ACCORDINGLY, THE SAME IS DISMISSED. 8 ITA NO . 1014/PUN/2015, A.Y. 2011 - 12 10. THE GROUND NO. 4 IN APPEAL BY THE REVENUE IS GENERAL IN NATURE AND HENCE, REQUIRES NO ADJUDICATION. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 28 TH DAY OF JULY, 2017 . SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 28 TH JULY, 2017 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 7, PUNE 4. THE PR. CIT - 6, PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE