Appeal details
Counselvise Citation
[2021] 109 COUNSELVISE.COM (IT) 7459 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 6 month(s) 1 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
20-01-2021
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB-A
Assessment Year
2015-2016
Appeal Filed On
19-07-2019
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE S HRI SATBEER SINGH GODARA , JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU , ACCOUNTANT MEMBER (THROUGH VIRTUAL CONFERENCE) S. NO. ITA NO. AY APPELLANT RESPONDENT 1 116 3 / H /2019 2015 - 16 DY. COMMISSION ER OF INCOME - TAX, CIRCLE 8 (1), HYDERABAD. AVINASH HITECH CITY 2 SOCIETY, HYDERABAD. PAN - AABAA 1623R DATE OF HEARING : 1 8 - 0 1 - 20 2 1 DATE OF PRONOUNCEMENT : 2 0 - 01 - 20 2 1 O R D E R PER BENCH: T H IS REVENUES APPEAL FOR AY 2015 - 16 IS DIRECTED AGAINST THE CIT(A) , RAJAMAHENDRAVARAM, EAST GODAVARI DISTRICT, DATED 2 9 / 0 3 / 201 9 PASSED IN CASE NO. FOR REVENUE : SHRI SUNIL KUMAR PANDEY FOR ASSESSEE : SHR I RAMESH BABU ITA NO. 116 3 /HYD/1 9 AVINASH HITECH CITY 2 SOCIETY, HYD. : - 2 - : 10053/2018 - 19/CIT(A)/RJY INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME - TAX ACT, 1961; IN SHORT THE ACT. WE HAVE HEARD BOTH THE PARTIES. C ASE FILE PERUSED. 2. REFERRING TO THE GROUNDS OF APPEAL RAISED IN R EVENUES INSTANT APPEAL, LEARNED DR VEHEMENTLY CONTENDED DURING THE COURSE OF HEARING THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN GRANTING 80IAB DEDUCTION RELIEF TO THE ASSESSEE TO THE TUNE OF RS. 7,74,74 ,426/ - . THE CIT(A) HAS DISCUSSED THE ISSUE IN PARAS 7.1 TO 7.3 IN HIS ORDER AS UNDER: - 7. 'I HAVE CAREFULLY CONSIDERED THE FINDINGS OF THE AO, GROUNDS RAISED BY THE APPELLANT, STATEMENT OF FACTS, WRITTEN SUBMISSIONS FILED DURING THE APPELLATE PROCEEDINGS AND THE ORDER OF HON'BLE ITAT, HYDERABAD. THE MAIN ISS UE INVOLVED IN THE APPEAL IS WITH REGARD TO CLAIM U/S.80 - IAB OF THE ACT. IT IS THE CASE OF THE AO THAT THE APPELLANT IS NOT ELIGIBLE FOR CLAIM U/S.80 - IAB OF THE ACT SINCE IT IS NOT ENGAGED IN ANY BUSINESS ACTIVITY RELATED TO SEZ AND THE INCOME THEREOF, SHO ULD BE TREATED UNDER THE HEAD INCOME FROM HOUSE PROPERTY. ALTERNATIVELY, IT IS CONTENDED BY THE APPELLANT THAT THE INCOME OF THE APPELLANT IS TO BE TREATED UNDER THE HEAD INCOME FROM BUSINESS SINCE THE APPELLANT ENGAGED IN THE DEVELOPING AND MAINTAINING AL L INFRASTRUCTURAL FACILITIE S AND EQUIPMENT. 7.2 AFTER PERUSAL OF THE INFORMATION AVAILABLE ON RECORD, CONTENTIONS OF THE APPELLANT AND FINDINGS OF THE AO, I AM OF THE CONSIDERED OPINION THAT THE APPELLANT IS ENGAGED IN THE BUSINESS ACTIVITY AND THE AO IS NOT JUSTIFIED ILL TREATING THE INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY FOR THE FOLLOWING REASONS; ITA NO. 116 3 /HYD/1 9 AVINASH HITECH CITY 2 SOCIETY, HYD. : - 3 - : (I) I HAVE PE RUSED THE LETTER OF GOVT. OF INDIA, MINISTRY OF COMMERCE & INDUSTRY IN NO. F. 21 51 12006 - SEZ DATED 31.12.2008 WHEREIN THE APPELLANT WAS CONFERRED AS CO - DEVELOPER FOR PROVIDING INFRASTRUCTURE FACILITIES IN THE IT /I TES SPECIAL ECONOMIC ZONE. IT IS CLEARLY S HOWS THAT THE APPELLANT IS ENGAGED IN THE BUSINESS ACTIVITY AND THE SAME IS TO BE ASSESSED UNDER THE BUSINESS HEAD. (II) THE CBDT VIDE ITS CIRCULAR NO. 16/2017 DATED 25.04.2017 (F.NO. 279/MISC./140/2015/ITJ.) WAS HELD AS UNDER; 'IT IS NOW A SETTLED POS ITION THAT IN THE CASE OF AN UNDERTAKING WHICH DEVELOPS, DEVELOPS AND OPERATES OR MAINTAINS AND OPERATES AN INDUSTRIAL PORK! SEZ NOTIFIED IN ACCORDANCE WITH THE SCHEME FRAMED AND NOTIFIED BY THE GOVERNMENT, THE INCOME FROM LETTING OUT OF PREMISES/DEVELOPED SPACE A L ONGWIT H OTHER F ACILITIES IN A N IN D USTRIAI PARK/SEI IS TO BE CHARGED TO TAX UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS'' THE ABOVE CIRCULAR IS SQUARELY APPLICABLE TO THE APPELLANT'S CASE. IN THE INSTANT CASE, THE APPELLANT DEVELOPS AS WELL AS OPERATES THE FACILITIES IN SEZ. THEREFORE, THE INCOME FROM THE SAME IS TO BE ASSESSED UNDER THE HEAD PROFITS AND GAINS OF BUSINESS. (III) IT IS ALSO SEEN THAT THE CIT(A) - 2, HYDERABAD ET CIT(A) - 8, HYDERABAD ALLOWED THE APPEAL IN FAVOUR OF THE APPELLANT FOR THE A.Y.2013 - 14 & 2014 - 15 BY HOLDING THAT THE APPELLANT IS - ELIGIBLE FOR CLAIM U/S.80 - IAB AS INCOME RECEIVED HAS TO BE TREATED UNDE R THE BUSINESS HEAD. SUBSEQUENTLY, THE REVENUE FILED AN APPEAL AGAINST THE ORDER O F CIT( A) - 2, HYDERABAD BEFORE THE HON'BLE ITAT, B - BENCH, HYDERABAD. THE HON'BLE ITAT IN ITA NO.726/HYD/2017 FOR THE A.Y.2013 - 14 DISMISSED THE REVENUE'S APPEAL AND UPHELD THE O RDER OF THE CIT(A) - 2, HYDERABAD. ITA NO. 116 3 /HYD/1 9 AVINASH HITECH CITY 2 SOCIETY, HYD. : - 4 - : 7.3 IN VIEW OF THE ABOVE OBSERVATIONS, IT IS HELD THAT THE INCOME RECEIVED BY THE APPELLANT IS TO BE TREATED AS INCOME FROM BUSINESS AND THE AO IS DIRECTED TO TREAT SAME UNDER THE HEAD 'INCOME FROM BUSINESS' INSTEAD OF HO USE PROPERTY. 3. IT IS A MATTER OF RECORD THAT THE INSTANT ISSUE OF SECTION 80IAB DEDUCTION HA S ALREADY BEEN ADJUDICATED IN ASSESSEES OWN CASE FOR AYS 2013 - 14 & 2014 - 15, WHEREIN, THE COORDINATE BENCH IN ITS ORDER(S) (SUPRA) HAS HELD THAT TH IS TAXPAYE R IS ELIGIBLE FOR THE IMPUGNED RELIEF. WE THUS ADOPT JUDICIAL CONSISTENCY TO UPHOLD THE ORDER OF CIT(A) AND DISMISS THE GROUNDS RAISED BY THE R EVENUE ON THIS COUNT. 3. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 20 TH JANUARY, 2021 ( LAXMI PRASAD SAHU ) ( S.S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDE RABAD, DATED : 20 TH JANUARY, 20 2 1 K V ITA NO. 116 3 /HYD/1 9 AVINASH HITECH CITY 2 SOCIETY, HYD. : - 5 - : C OPY TO : 1 DCIT, CIRCLE 8 ( 1 ), ROOM NO. 605 , 6 TH FLOOR, SIGNATURE TOWERS, KONDAPUR, HYDERABAD 500 084 2 M/S AVINASH HITECH CITY 2 SOCIETY , H1B, PHOENIX INFO CITY, SEZ GACHIBOWLI, RR DIST., HYDERABAD 500 0 81 3 CIT(A) , RAJAMAHENDRAVARAM 4 PR. CIT - 2 , HYDERABAD 5 ITAT, DR, HYDERABAD. 6 GUARD FILE.
