DCIT, Circle-1(2), Hyderabad, Hyderabad V. Belair Logistics Limited, Hyderabad, Hyderabad

ITA 129/HYD/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2680 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 27-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S NARASAMMA
• Assessee Lawyers: P RAVI SESHAGIRI RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHAMAN, ACCOUNTANT MEMBER ITA.NOS. 128 & 129/HYD/2017 ASSESSMENT YEARS 2013 - 14 AND 2014 - 15 DCIT, CIRCLE - 1(2), HYDERABAD. VS. M/S. BELAIR LOGISTICS LTD, 8 - 2 - 418, 3 RD FLOOR, MEENAKSHI HOUSE, ROAD NO.7, BANJARA HILLS, HYDERABAD. PAN:AACCB 0177A (APPELLANT) (RESPONDENT) FOR ASSESSEE: SHRI P. RAVISESHAGIRI RAO FOR REVENUE : SMT. S. NARASAMMA, CIT - DR DATE OF HEARING : 24.08.2017 DATE OF PRONOUNCEMENT : 24.08.2017 ORDER PER D. MANMOHAN , VP. THESE TWO APPEALS BY THE REVENUE ARE DIRECTED AGAINST THE ORDERS PASSED BY THE LD. CIT(A) - 1, HYDERABAD AND THEY PERTAIN TO THE ASSESSMENT YEARS 2013 - 14 AND 2014 - 15. AS COMMON ISSUE IS INVOLVED IN BOTH THE APPEALS, WE PROCEED TO DISPOSE OF THESE APPEALS B Y A COMBINED ORDER FOR THE SAKE OF CONVENIENCE. 2. THOUGH THERE ARE SEVERAL GROUNDS, ESSENTIALLY THE ISSUE IS WITH REGARD TO CLAIM OF DEDUCTION U/S 80IA(4) OF THE ACT. THE ASSESSEE - COMPANY IS ENGAGED IN DEVELOPMENT, OPERATION AND MAINTENANCE OF INFRASTRUCTURE FACILITIES. IT HAD TAKEN ON LEASE CERTAIN INFRASTRU CTURE FACILITIES AND DEVELOPED LAND FROM KAKINADA DEEP WATER PORT. FOR THE YEARS UNDER CONSIDERATION, ASSESSEE CLAIMED DEDUCTION U/S 80IA(4) 2 UNDER NORMAL PROVISIONS. THE ASSESSING OFFICER DISALLOWED THE CLAIM ON THE GROUNDS THAT (A) THE OPEN YARD IS NOT AN INFRASTRUCTURE FACILITY WITHIN THE MEANING OF SECTION 80(IA) AND (B) IT APPLIES ONLY WHERE THE INFRASTRUCTURE FACILITY IS TRANSFERRED ON OR AFTER 1 ST DAY OF APRIL, 1999 BY AN ENTERPRISE WHI CH DEVELOPED SUCH FACILITY FOR THE PURPOSE OF OPERATING AND MAINTAINING WHEREAS, IN THE IN THE INSTANT CASE, THE TRANSFEROR I.E., KSPL IS NOT A DEVELOPER OF FACILITY SINCE THE AGREEMENT WITH GOVERNMENT OF ANDHRA PRADESH WAS ENTERED INTO BY M/S. KAKINADA SEAPORTS LIMITED, WHICH WAS IN TURN TRANSFERRED TO THE ASSESSEE - COMPANY. THUS, IT IS A MERE TRANSFER OF THE LEASE RECEIVED BY M/S. KSPL AND IT IS NOT THE INFRASTRUCTURE FACILITY WHICH IS DEVELOPED AND TRANSFERRED TO THE ASSESSEE - COMPANY. SECONDLY, THE A GREEMENT ENTERED INTO BY THE ASSESSEE - COMPANY IS ONLY WITH OTHER CORPORATE ENTITY AND IT IS NOT IN ACCORDANCE WITH THE AGREEMENT WITH ANY STIPULATED ENTITY. IT WAS FURTHER STATED THAT UNDER IDENTICAL CIRCUMSTANCES, THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IA(4) OF THE ACT WAS DISALLOWED FOR THE ASSESSMENT YEARS 2011 - 12 AND 2013 - 14 AND THOUGH THE TRIBUNAL HAS DECIDED IN FAVOUR OF THE ASSESSEE, THE MATTER HAVING BEEN CONTESTED BEFORE THE HONBLE HIGH COURT, HE CHOSE TO DISALLOW THE CLAIM. 3. ON AN APP EAL FILED BY THE ASSESSEE, THE LD. CIT(A) FOLLOWED THE DECISION OF THE ITAT, HYDERABAD BENCH IN THE ASSESSEES OWN CASE (ITA NOS. 1377 TO 1381/HYD/2014) FOR THE AYS 2006 - 07 TO 2010 - 11 AND HAVING REGARD TO THE FACT THAT THE ISSUE IS IDENTICAL, THE A.O. WAS DIRECTED TO ALLOW DEDUCTION U/S 80IA. IT MAY NOT BE OUT OF PLACE TO MENTION THAT EVEN IN THE SUBSEQUENT ASSESSMENT YEARS I.E., 2011 - 12 AND 2012 - 13, THE ITAT, HYDERABAD B BENCH (ITA NO.1698/HYD/2016, DATED 14.3.2017) DECIDED THE MATTER IN FAVOUR OF THE A SSESSEE BY HOLDING THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IA(4) OF THE ACT IN RESPECT OF THE INCOME FROM LEASE RENTAL FROM OPEN YARD. 3 4 . HOWEVER, THE REVENUE IS OF THE OPINION THAT THE MATTER BEING PENDING BEFORE THE HONBLE HIGH COURT, IT IS A FIT CASE FOR FILING AN APPEAL AND ACCORDINGLY PREFERRED AN APPEAL BEFORE THE TRIBUNAL WHEREIN THE MAIN C ONTENTION IS THAT THE REVENUE HAD NOT ACCEPTED THE DECISION OF THE ITAT IN THE ASSESSEES OWN CASE FOR THE EARLIER YEARS. 5 . AT THE TIME OF HEARING, LD. CIT - DR SUBMITTED THAT THE ISSUE STANDS COVERED BY THE AFORECITED DECISIONS . HOWEVER, SHE STRONGLY RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. 6 . ON THE OTHER HAND, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE STANDS SQUARELY COVERED B Y THE DECISIONS OF THE TRIBUNAL AND FURTHER CONTENDED THAT THE A.O. IS NOT JUSTIFIED IN IGNORING THE DECISION OF THE SUPERIOR FORUM AND THUS COMMITTED AN ERROR IN HOLDING THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 80IA(4) OF THE ACT. 7 . WE HAVE CAR EFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THERE IS NO DISPUTE THAT THE FACTS IN THE ASSESSEES OWN CASE IN THE EARLIER YEARS ARE IDENTICAL. HAVING ELABORATELY CONSIDERED THE FACTS AND CIRCUMSTANCES, THE TRIBUNAL HAD TAKEN A VIEW THA T THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IA(4) OF THE ACT. SINCE THE LD. CIT(A) HAS ADOPTED THE VIEW TAKEN BY THE ITAT, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). IN OTHERWORDS THE REVENUE HAS NOT MADE OUT A CASE AS TO HOW THE FACTS OF THIS CASE ARE DIFFERENT FROM THAT OF THE FACTS WHICH WAS SUBJECT MATTER OF CONSIDERATION BY THE ITAT IN THE ASSESSEES OWN CASE FOR THE EARLIER YEARS. WE ARE THEREFORE OF THE VIEW THAT THE APPEAL FILED BY THE REVENUE DESERVES TO BE DISMIS SED ON THAT GROUND. 8. AT THIS JUNCTURE, WE MAY ALSO REFERRED TO THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF STATE OF ANDHRA PRADESH VS. COMMERCIAL TAX 4 OFFICER, KURNOOL (169 ITR 564) WHEREIN THE COURT OBSERVED THAT AN ASSESSING O FFICER WHO REFUSES TO FOLLOW THE DECISION OF THE SUPERIOR FORUM CAN BE CLASSIFIED AS A PERSO N WHO IS GUILTY OF COMMITTING CONTEMPT OF COURT. HOWEVER, A LENIENT VIEW IS TAKEN IN THAT MATTER. IN THIS CASE ALSO CIRCUMSTANCES ARE IDENTICAL. I N THE ASSESSEES OWN CASE, THE TRIBUNAL HAVING TAKEN A CONSISTENT STAND , THAT TOO BY FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ABG HEAVY INDUSTRIES LTD., (322 ITR 323) , THE ASSESSING OFFICER IS BOUND TO FOLLOW THE SAID ORDER , IN THE ABSENCE OF ANY DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT TO THE CONTRARY. WE LEAVE THE MATTER AT THIS STAGE BY HOLDING THAT THE ORDER PASSED BY THE LD. CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. AS PRONOUNCED IN THE OPEN COURT, THE APPEAL S FILED BY THE REVENUE ARE DISMISSED. SD/ - SD/ - (S. RIFAUR RAHMAN ) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT HYDERABAD, DATED: 24 TH AUGUST , 2017 OKK, SR.PS COPY TO 1. M/S. BELAIR LOGISTICS LTD, 8 - 2 - 418, 3 RD FLOOR, MEENAKSHI HOUSE, ROAD NO.7, BANJARA HILLS, HYDERABAD. 2. DCIT, CIRCLE - 1(2), HYDERABAD. 3. CIT (A) - 1, HYDERABAD. 4. PR. CIT - 1, HYDERABAD. 5. D.R. ITAT B BENCH, HYDERABAD. 6. GUARD FILE