Appeal details
Counselvise Citation
[2017] 126 COUNSELVISE.COM (IT) 7302 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 9 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
25-10-2017
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2011-2012
Appeal Filed On
16-10-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . / I TA NO. 1364 /PUN/20 15 / ASSESSMENT YEAR : 2011 - 12 THE DEPUTY COMMISSIONER OF INCOME TAX, PANVEL CIRCLE, PANVEL. ....... / APPELLANT / V/S. M/S. CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) LTD. D. NO. 1088, KHOPTA VILLAGE, TAL - URAN, DIST. RAIGAD. PAN : AAACC5849C / RESPONDENT REVENUE BY : SHRI AJAY MODI REVENUE BY : SHRI AJAY MODI A SSESSEE BY : MS. KEYURI DESAI / DATE OF HEARING : 18.10.2017 / DATE OF PRONOUNCEMENT : 25 .10.2017 / ORDER PER VIKAS AWASTHY, JM THIS APPEAL HAS BEEN FILED BY REVENUE ASSAILING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 2, THANE DATED 27.05.2015 FOR THE ASSESSMENT YEAR 2011 - 12. 2. THE FACTS OF THE CASE AS EMANATING FROM RECORDS ARE : THE ASSESSEE COMPANY IS OPERATING A CONTAINER FREIGHT STATION (CFS) IN JAWAHARLAL NEHRU 2 ITA NO. 1364/PUN/2015 A.Y. 2011 - 12 PORT TRUST AREA. DURING THE IMPUGNED ASSESSMENT YEAR, THE ASSESSEE CLAIMED DEDUCTION U/S.80IA(4) OF THE INCOME TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT) IN RESPECT OF CFS SET UP BY THE ASSESSEE. IN SCRUTINY ASSESSMENT PROCEEDINGS FOR IMPUGNED ASSESSMENT YEAR, THE ASSESSING OFFICER HELD THAT ASSESSEE IS NOT ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80IA(4) , AS CFS SET UP BY ASSESSEE DOES NOT FALL WITHIN THE MEANING OF PORT AS ENVISAGED UNDER THE DEFINITION OF INFRASTRUCTURE FACILITY IN EXPLANATION TO SECTION 80IA(4) OF THE ACT. THU S, THE ASSESSING OFFICER DISALLOWED ASSESSEES CLAIM OF DEDUCTION AMOUNTING TO RS. 37,76,20,755/ - U/S. 80IA(4) OF THE ACT. 3. AGGRIEVED BY THE ASSESSMENT ORDER DATED 12.03.2014, THE ASSESSEE FILED APPEAL BEFORE COMMISSIONER OF INCOME TAX(APPEALS). THE CO MMISSIONER OF INCOME TAX(APPEALS) BY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2008 - 09 (374 ITR 645) AND THE DECISION OF SPECIAL BENCH IN THE CASE OF M/S. ALL CARGO GLOBAL LOGISTICS LTD. DECISION OF SPECIAL BENCH IN THE CASE OF M/S. ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT [18 ITR (TRIB) 106 (MUM.)] ALLOWED THE CLAIM OF ASSESSEE. NOW, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL ASSAILING THE FINDINGS OF FIRST APPELLATE AUTHORITY. THE GROUNDS RAISED BY THE REVENUE IN APPEAL ARE AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION UNDER SECTION 80IA(4) OF THE INCOME TAX ACT, 1961 EVEN THOUGH THE ACTIVITIES UNDERTAKEN BY THE ASSESSEE DO NOT FALL WITHIN CLAUSE (D) OF THE EXPLANATION TO SECTION 80IA(4) DEFINING THE TERM INFRASTRUCTURE FACILITY. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS FAILED TO TAKE COGNIZANCE OF THE FACT THAT THE ASSESSEE COMPANY HAS NOT ENTERED INTO AN AGREEMENT WITH THE CENTRAL GOVT./STATE GOVT./ LOCAL AUTHORITY OR AN Y OTHER STATUTORY BODY FOR DEVELOPING OR OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN OBSERVING THE FACT THAT THE CERTIFICATE ISSUED BY JNPT CONSIDERING THE ASSE SSEE COMPANY AS AN EXTENDED ARM OF PORT RELATED SERVICES WAS LATER WITHDRAWN BY THE JNPT. 3 ITA NO. 1364/PUN/2015 A.Y. 2011 - 12 4. MS. KEYURI DESAI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE SOLITARY ISSUE RAISED BY THE REVENUE IN APPEAL IS AGAINST ASSESSEES CLAIM OF DEDUCTI ON U/S. 80IA(4) OF THE ACT . THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF TRIBUNAL IN EARLIER ASSESSMENT YEARS I.E . ASSESSMENT YEARS 2008 - 09, 2009 - 10 AND 2010 - 11 IN ASSESSEES OWN CASE. THE MUMBAI BENCH OF TRIBUNAL IN ASSESSEE S OWN CASE I.E. ITA NO.7055/MUM./2011 FOR ASSESSMENT YEAR 2008 - 09 DECIDED ON 31.08.2012 HAS HELD THAT THE CFS SET UP BY ASSESSEE FALLS WITHIN THE MEANING OF PORT AND THUS, QUALIFIES TO BE INFRASTRUCTURE FACILITY ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80I A(4) OF THE ACT. THE AFORESAID DECISION OF TRIBUNAL HAS BEEN UPHELD BY THE HONBLE BOMBAY HIGH COURT. IN SUBSEQUENT ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2009 - 10 & 2010 - 11, THE ASSESSING OFFICER REJECTED ASSESSEES CLAIM OF DEDUCTION U/S. 80IA(4) OF THE A CT FOR IDENTICAL REASONS. IN FIRST APPEAL, THE COMMISSIONER OF INCOME TAX(APPEALS) ALLOWED THE CLAIM OF ASSESSEE AND REVENUE APPROACHED THE TRIBUNAL IN ITA NO. 906/PN/2013 FOR ASSESSEE AND REVENUE APPROACHED THE TRIBUNAL IN ITA NO. 906/PN/2013 FOR ASSESSMENT YEAR 2009 - 10 & ITA NO. 1778/PN/2014 FOR ASSESSMENT YEAR 2010 - 11. IN BOTH APPEALS, THE TRIBUNAL UPHELD THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND DISMISSED THE APPEAL OF REVENUE VIDE ORDER DATED 18.11.2014 AND 15.10.2016 , RESPECTIVELY. THE GROUNDS RAISED BY REVENUE IN PRESENT APPEAL ARE SIMILAR TO THE ONE RAISED IN EARLIER ASSESSMENT YEAR S AND REASONS FOR REJECTING THE CLAIM OF DEDUCTION U/S. 80IA(4) ARE ALSO IDENTICAL. THERE HAS BEEN NO CHANGE IN FACTS IN THE ASSESSMENT YEAR UNDER APPEAL. NOW, THE ISSUE HAS BEEN LAID TO REST BY THE DECISION OF HONBLE BOM BAY HIGH COURT IN ASSESSEES OWN CASE HOLDING ASSESSEE TO BE ELIGIBLE FOR CLAIMING DE DUCTION U/S. 80IA(4) OF THE ACT, THEREFORE, THE, APPEAL OF REVENUE IS LIABLE TO BE REJECTED. 4 ITA NO. 1364/PUN/2015 A.Y. 2011 - 12 5. SHRI AJAY MODI REPRESENTING THE DEPARTMENT HAS FILED A REQUEST LETTER SE EKING ADJOURNMENT ON BEHALF OF SHRI RAJEEV KUMAR, CIT, SR. DR. THE LD. DR SUBMITTED THAT THIS APPEAL FILE IS BEING HANDLED BY SR. DR AND HE IS ON LEAVE , T HEREFORE, THE MATTER MAY BE ADJOURNED. 6. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PERUSED. WE HAVE EXAMINED THE DECISION S REFERRED BY THE LD. AR. WE FIND THAT GROUNDS RAISED BY THE REVENUE IN PRESENT APPEAL ARE IDENTICAL TO THE GROUNDS RAISED BY THE REVENUE IN EARLIER APPEALS FOR ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2009 - 10 & 2010 - 11. THE SOL ITARY ISSUE RAISED BY REVENUE IN APPEAL IS , WHETHER THE ACTIVITIES UNDERTAKEN BY THE ASSESSEE FALL WITHIN CLAUSE (D) OF EXPLANATION TO SECTION 80IA(4) DEFINING THE TERM INFRASTRUCTURE FACILITY . WE FIND THAT REVENUE HAS BEEN REJECTING ASSESSEES CLAIM OF DEDUCTION U/S. 80IA(4) SINCE ASSESSMENT YEAR 2008 - 09 ON THE GROUND THAT CFS SET UP BY ASSESSEE DOES NOT QUALIFY TO BE INFRASTRUCTURE FACILITY WITHIN THE MEANING OF SECTION 80IA(4). H ENCE, THE ASSESSEE IS NOT ELIGIBLE FOR CLAIMING BEN EFIT OF DEDUCTION U/S. 80IA(4) OF THE ACT. THE TRIBUNAL IN ITA NO. 7055/MUM/2011 FOR ASSESSMENT YEAR 2008 - 09 DECIDED ON 31.08.2012 BY FOLLOWING THE DECISION OF SPECIAL BENCH IN THE CASE OF M/S. ALL CARGO GLOBAL LOGISTICS LD. VS. DCIT ( SUPRA. ) HELD THAT TH E ASSESSEE IS ELIGIBLE FOR CLAIMING DEDUCTION U/S. 80IA(4) OF THE ACT. THE AFORESAID DECISION OF THE TRIBUNAL HAS BEEN UPHELD BY THE HONBLE BOMBAY HIGH COURT IN APPEAL FILED BY REVENUE TITLED CIT VS. CONTINENTAL WAREHOUSING CORPORATION (SUPRA.). 7. IN N ORMAL COURSE, WE WOULD HAVE CONSIDERED THE ADJOURNMENT REQUEST FAVOURABLY. IN THE INSTANT CASE, T HE ADJOURNMENT REQUEST FILED ON BEHALF OF SR. DR IS REJECTED AS THE ISSUE RAISED BY REVENUE IN PRESENT APPEAL IS NO MORE R ES - I NTEGRA . THE DISPUTE WHETHER CONT AINER FREIGHT STATION SET UP WITHIN PRECINCTS OF THE PORT , CONSIDERING ITS PROXIMITY TO SEA PORT FALL WITHIN THE 5 ITA NO. 1364/PUN/2015 A.Y. 2011 - 12 MEANING OF INFRASTRUCTURE FACILITY AND ADMISSIBLE FOR DEDUCTION U/S. 80IA(4), HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE . FURTHER, T HE CO - ORDINATE BENCH OF TRIBUNAL IN IMMEDIATE PRECEDING ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2009 - 10 & 2010 - 11 HAVE TAKEN A CONSISTENT VIEW HOLDING ASSESSEE IS TO BE ELIGIBLE FOR CL AIMING D EDUCTION U/S.80IA(4) OF THE ACT. W E FIND NO REASON TO TAKE A DIVERGENT VIEW. THUS, IN VIEW OF FACTS OF THE CASE AND CONSISTENT VIEW TAKEN BY THE TRIBUNAL WHICH HAS BEEN UPHELD BY HONBLE JURISDICTION HIGH COURT, WE FIND NO MERIT IN THE APPEAL FILED BY REVENUE AND THE SAME IS DISMISSED. 8. IN THE RESULT, THE IMPUGNED ORDER IS UPHELD AND APPEAL OF THE REVENUE IS DISMISSED. ORDER PRO NOUNCED ON WEDNESDAY , THE 25TH DAY OF OCTOBER , 201 7 . SD / - SD/ - SD / - SD/ - ( . / D. KARUNAKARA RAO ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 25 TH OCTOBER , 2017 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 2, THANE. 4. THE CIT - 2, THANE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE .
