DCIT,Circle-12, Kolkata, Kolkata V. M/s Vantage Advertising Pvt. Ltd., Kolkata

ITA 1388/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87714 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 28-09-2012
• Court: TRIBUNAL
• Department Lawyers: P MUKHERJEE
• Assessee Lawyers: J P KHAITAN
• Keywords: Depreciation; Question of law
• Section: 80IB; 263; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA [BEFORE HON BLE SHRI MAHAVIR SINGH, JM & HON BLE SHRI SHAMIM YAHYA AM ] I.T.A NO S.1388 TO 1392 /KOL/2012 ASSESSMENT YEAR S - 2004 - 05,2006 - 07 TO 2009 - 2010 D.C.I.T., CIRCLE - 12, VS. M/S. VANTAGE ADV ERTISING (P)LTD., KOLKATA KOLKATA (APPELLANT) ( RESPONDENT) (PAN: AABCV 1202 B) FOR THE APPELLANT : SHRI P.MUKHERJEE, JCIT FOR THE RESPONDENT : SHRI J.P.KHAITAN, SR.ADVOCATE DATE OF HEARING : 03.02 .2015. DATE OF PRONOUNCEMENT: 10.03.2015. ORDER PER SHRI SHAMIM YAHYA, AM : THESE APPEAL S FILED BY THE REVENUE ARE DIRECTED AGAINST THE ORDER S OF LD. CIT(A) - XII , KOLKATA FOR THE CONCERNED ASSESSMENT YEARS. SINCE THE ISSUES ARE COMMON AND CONNECTED AND THE APPEALS WERE HEARD TOGET HER THESE ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. ONE COMMON ISSUE RAISED IN ALL THE APPEALS IS THAT WHETHER DEPRECIATION OF HOAR DINGS IS TO BE ALLOWED @ 100% OR 50% AS IT WAS USED FOR LESS THAN 180 DAYS. 3. WE HAVE H EARD BOTH THE COUNSEL AND CAREFULLY PERUSED THE RECORDS. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ISSUE INVOL VED IS DULY COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEE S CASE FOR A.YRS.2004 - 05 AND 2005 - 06 IN ITA NOS.1054 & 1055/KOL/2008 VIDE ORDER DATED 30.06.2009. THE LD. COUNSEL SUBMITTED THAT THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE ON THE BASIS OF THE SAID TRIBUNAL S ORDER IN ASSESSEE S OWN CASE. HENCE THE LD. COUNSEL OF THE ASSESEE SUBMITTED THAT THERE IS NO NEED TO INTERFERE WI TH THE ORDER OF THE LD. CIT(A). THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED UPON THE ORDER OF AO. HOWEVER, HE ACCEPTED ITA NOS.1388 TO 1392/KOL/2012 M/S.VANTAGE ADVERTISING PVT.LTD. A.YR S . 2004 - 05, 2006 - 07 TO 2009 - 10 2 THAT THE ISSUE HAS BEEN DECIDED IN ASSESSEE S OWN CASE IN FAVOUR OF ASSESSEE ON THE SAME ISSUE. WE FIND THAT THE TRIBU NAL IN THE ORDER AFORESAID HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESEE BY HOLDING AS UNDER : - 15. AFTER HEARING BOTH THE SIDES WE FIND THAT THE REVENUE HAS NOT BROUGHT ANYTHING ON THE RECORDS THAT THE HOARDINGS ARE HAVING LONGER LIFE THEN CLAIMED BY THE ASSESSEE AND GIVING BENEFIT OF ENDURING NATURE. THE ASSESSEE S CLAIM IS THAT THESE HOARDINGS ARE HAVING LIFE OF ONE TO TWO MONTHS AND LESS THAN A YEAR. THESE HOARDINGS ARE PUT IN USE FOR LESS THAN 180 DAYS. THE AO HAS NOT BROUGHT ANY EVIDENCE REGARDING THE DURABILITY OF THE HOARDINGS. THE AO S OBSERVATIONS APPEARS TO BE A GUESS WORK IN RESPECT OF QUALITY OF STRUCTURE OF THE BOARDS. THE ASSESSEE HAS ASKED FOR 100% DEPRECIATION ON THE STRUCTURE USED FOR LESS THAN 180 DAYS ON ACCOUNT OF NON DURABILITY OF ITS STRUCTURES. THE CIT(A) S ORDER GET SUPPORT FROM THE ITAT, JABALPUR BENCH DECISION RELIED UPON. IN THAT CASE THE HON BLE ITAT JABALPUR HAS HELD AS UNDER : - 8. THE LEARNED DR HAS CLAIMED THAT THERE WAS NO NECESSITY OF ACQUISITION OF ANY NEW CYLINDER, IN VIEW OF THE PRODUCTION OF GASES IN THE YEAR UNDER CONSIDERATION COMPARED TO THE PRECEDING YEAR. HE HAS ALSO DOUBTED OF ALL THE CYLINDERS IN THE YEAR UNDER CONSIDERATION. WE FIND THAT THE ASSESSEE HAS GIVEN THE COMPLETE DATA - WISE DETAILS OF PURCHASE OF CYLINDERS WHICH IS DETAILED IN THE PAGE 1 IN THE ASSESSMENT ORDER ITSELF. THE ASSESSING OFFICER HAS ALSO NOT DOUBTED THE USER OF ALL THE CYLINDERS FOR THE PURPOSE OF BUSINESS DURING THE YEAR UNDER CONSIDERATION. ON THE OTHER HAND, HE DISALLOWED THE DEPRE CIATION WITH THE OBSERVATION 50 PER CENT OF THE TOTAL AMOUNT OF DEPRECIATION FOR USING THE PLANT AND MACHINERY FOR LESS THAN 180 DAYS . THUS, THE ASSESSING OFFICER HAS HIMSELF ACCEPTED THE USER OF ALL THE CYLINDERS FOR THE PURPOSE OF BUSINESS. HE HAD DIS ALLOWED THE 50 PER CENT DEPRECIATION BECAUSE CYLINDERS WERE USED FOR LESS THAN 180 DAYS. THE LEARNED DEPARTMENTAL REPRESENTATIVE IS A REPRESENTATIVE OF THE ASSESSING OFFICER. HE CANNOT DISPUTE A FACT, WHICH IS ACCEPTED BY THE ASSESSING OFFICER HIMSELF, THE REFORE, WHEN THE ASSESSING OFFICER HAS ACCEPTED THE USER OF THE CYLINDERS, THE LEARNED DR CANNOT DISPUTE IT. IN VIEW OF THE LEGAL POSITION AND THE FACTS AS DISCUSSED ABOVE, WE HOLD THAT THE ASSESSEE IS ENTITLED TO 100 PER CENT DEPRECIATION ON GAS CYLINDERS PURCHASED AND USED DURING THE YEAR UNDER CONSIDERATION AMOUNTING TO RS.15,32,092/ - GROUND NOS.1,2 & 3 OF THE ASSESSEE S APPEAL ARE ALLOWED. THE CIT(A) GRANTED RELIEF BY ALLOWING 100% NOT AS TREATING THE EXPENDITURE AS REVENUE IN NATURE AS CLAIMED BY THE REVENUE IN ITS APPEAL GROUND. THE RATIO DECIDED BY HON BLE ITAT, JABALPUR BENCH APPEARS TO BE APPLICABLE IN THE ASSESSEE S CASE. RESPECTFULLY FOLLOWING THE DECISION OF THE HON BLE ITAT JABALPUR BENCH WE UPHOLD THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AN D DISMISS THE REVENUE S GROUND OF APPEAL ON THIS ISSUE. 3.1. SINCE THE AFORESAID ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL IN ASSESSEE S OWN CASE AND IT IS NOT THE CASE OF THE REVENUE THAT THE ABOVE DECISION HAS BEEN SET ASIDE BY THE HON BLE HIGH COURT , ADHERING OF THE DOCTRINE OF ITA NOS.1388 TO 1392/KOL/2012 M/S.VANTAGE ADVERTISING PVT.LTD. A.YR S . 2004 - 05, 2006 - 07 TO 2009 - 10 3 STARE DECISIS WHERE UPHO LD THE ORDER OF THE LD. CIT(A). THE REVENUE S APPEAL ON THIS ACCOUNT STAND S DISMISSED. 4. ANOTHER ISSUE RAISED BY THE REVENUE IN THIS APPEAL IS THAT THE LD. CIT (A) WAS NOT JUSTIF IED IN ALLOWING THE ASSESSEE DEDUCTION U/S 80IA OF THE ACT FOR CONSTRUCTION OF FOOT OVER BRIDGES AS WELL AS BUS SHELTERS. 5. IN THIS CASE AO HAS DISALLOWED ASSESSEE S CLAIM OF DEDUCTION U/S 80IA OF THE ACT ON BUS SHELTERS AND FOOT OVER BRIDGES. AO HAS MA DE DISALLOWANCES BY OBSERVING AS UNDER : - THE ASSESSEE HAS CLAIMED BUS SHELTER AS AN INTEGRAL PART OF ROAD SYSTEM. HOWEVER, BUS SHELTERS IS AN AREA ON THE SIDE OF THE ROAD WHERE PASSENGERS WAIT FOR THE ARRIVAL OF THEIR BUS. THE SAME IS TOTALLY INDE PENDENT TO THE ROAD. IN OTHER WORDS THE BUS SHELTERS ARE CONSTRUCTED ONLY ON THE ROADS WHERE THE BUSES RUN AND WITHOUT THE BUS SHELTERS THE ROADS HAVE AN INDEPENDENT IDENTITY AND CAN FUNCTION WITHOUT THEM. THE EXISTENCE AND FUNCTIONING OF A ROAD DOES N OT DEPEND ON THE BUS SHELTER HOWEVER, THE VICE VERSA IS NOT TRUE I.E. THE BUS SHELTERS CANNOT RUN WITHOUT THE ROAD . THOUGH BUS SHELTERS IS AN ITEM OF PUBLIC UTILITY BUT THE SAME CANNOT FORM PART OF THE ROAD . IN FACT THESE DAYS THERE ARE HOST OF F ACILITIES WHICH ARE PROVIDED ON ROAD SIDES SUCH AS TOILET BLOCKS, SMALL EATERIES, DRINKING WATER FACILITIES ETC. WHICH ARE ITEMS OF PUBLIC UTILITY AND ARE SPIN OFF FROM THE ROAD PROJECT BUT THEY CANNOT FORM PART OF THE ROAD AS ENVISAGED IN THE EXPLANATIO N. THE ASSESEE HAS ALSO CLAIMED THE SAID BUS SHELTERS AS PART OF A HIGHWAY PROJECT AS PER CLAUSE (B) OF THE EXPLANATION. HOWEVER, THE BUS SHELTERS CANNOT BE A PART OF HIGHWAY PROJECT BECAUSE THEY ARE NOT CONSTRUCTED ON HIGHWAYS. THE BUS SHELTERS ARE CONSTRUCTED ON CITY ROADS. MOREOVER, THE MEANING OF INTEGRAL PART IS THAT IF AN ENTITY IS DEVELOPING THE HIGHWAY PROJECT AND IF ANY ACTIVITY BEING INTEGRAL TO IT IS ALSO BEING DEVELOPED THEN THAT ACTIVITY WILL BE INCLUDED IN THE HIGHWAY PROJECT . HENCE THE ASSESSEE IS NOT DEVELOPING ANY HIGHWAY PROJECT. IN VIEW OF THE ABOVE DISCUSSION THE DEDUCTION CLAIMED U/S 80IA FOR BUS SHELTERS IS NOT ALLOWABLE TO THE ASSESSEE. UPON ASSESSEE S APPEAL THE LD. CIT(A) ACCEPTED THE ASSESSEE S SUBMISSIONS THAT THE ISSU E IS SQUARELY BY THE DECISION OF THE TRIBUNAL FOR A.YR. 2005 - 06 IN ITA NO.1055/KOL/2008 DATED 30.06.2009. AGAINST THE ABOVE ORDER REVENUE IS IN APPEAL BEFORE US . ITA NOS.1388 TO 1392/KOL/2012 M/S.VANTAGE ADVERTISING PVT.LTD. A.YR S . 2004 - 05, 2006 - 07 TO 2009 - 10 4 6. W E HAVE HEARD BOTH THE COUNSEL AND CAREFULLY PERUSED THE RECORDS. THE LD. DEPARTMENTAL R EPRESENTATIVE SUBMITTED THAT ASSESSEE IS NOT AT ALL ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT ON BUS SHELTERS AND FOOT OVER BRIDGES. THE LD. DR SUBMITTED THAT AS IN THIS CASE IT IS NOT THE CASE THAT THE ASSESSEE HAS GAINED ANY PROFIT OR GAIN FROM THE SAID BUSINESS UPON WHICH DEDUCTION U/S 80IA OF THE ACT IS BEING CLAIMED. THE LD. DR SUBMITTED THAT IT IS NOT THE CASE THAT ANY TOLL/FEE IS BEING CHARGED FOR THE USE OF FOOT OVER BRIDGES OR BUS SHELTER FOR WHICH DEDUCTION U/S 80IA OF THE ACT IS BEING CLAIMED. T HE LD. DR SUBMITTED THAT THE ASSESSEE IS EARNING INCOME BY WAY OF ADVERTISING ON THE FOOT OVER BRIDGES AND BUS SHELTERS WHICH IS TH E SUBJECT MATTER OF ASSESSEE S CLAIM OF DEDUCTION U/S 80IA OF THE ACT. THE LD. DR SUBMITTED THAT THE INCOME ON ACCOUNT OF ADV ERTISEMENT CANNOT SAID TO BE AN INCOME DERIVED BY AN UNDERTAKING FROM THE BUSINESS OF INFRASTRUCTURE DEVELOPMENT. HENCE HE SUBMITTED THAT THE ASSESSEE CANNOT BE ALLOWED DEDUCTION U/S 80IA OF THE ACT. THE LD. DR MADE ELABORATE SUBMISSIONS WITH RESPECT TO ME ANING OF PHRASE DERIVED FROM . HE ALSO REFERRED TO SEVERAL CASE LAWS INCLUDING THE DECISION OF THE HON BLE APEX COURT IN THE CASE OF LIBERTY INDIA LTD. VS CIT 183 TAXMAN 349 (SC). REFERRING TO THE RATIO EMANATING FROM THE AFORESAID APEX COURT S DECISION T HE LD. DR SUBMITTED THAT THE PROFIT OF THE ASSESSEE FROM THE ADVERTISING BUSINESS WOULD CERTAINLY BE PROFITS AND GAINS OF THE BUSINESS IN TERMS OF SECTION 28 OF THE ACT, THE SAME WOULD NOT AMOUNT TO PROFITS OR GAINS DERIVED FROM THE INDUSTRIAL UNDERTAKING . THE LD. DR FURTHER REFERRED TO THE HON BLE CALCUTTA HIGH COURT S DECISION IN THE CASE OF MUKHERJEE ESTATES (PVT) VS CIT 244 ITR 1 (CAL) FOR THE PROPOSITION THAT INCOME MAINLY PUBLICITY CHARGES BY PUTTING UP HOARDING/DISPLAYING ADVERTISEMENT FROM A BUILD ING CANNOT BE TREATED AS INCOME FROM PROPERTY BUT INCOME FROM OTHER SOURCES. THE LD. DR FURTHER SUBMITTED THAT THE ABOVE PROVES THAT ASSESSEE S INCOME DOES NOT INCLUDE ANY PROFIT WHICH IS DERIVED FROM DEVELOPING OR (II) OPERATING AND MAINTAINING OR (III) D EVELOPING, OPERATING AND MAINTAINING FOOT OVER BRIDGE AND BUS SHELTER. THE LD. DR FURTHER SUBMITTED THAT HON BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS SKYLINE ADVERTISING PVT. LTD. (2014) 45 TAXMAN.COM 532 (KAR), HAS HELD THAT THE BENEFIT U/S 80IA OF THE ACT CAN BE EXTENDED ONLY TO THOSE ASSESSEES WHO HAVE DEVELOPED INFRASTRUCTURE FACILITY AS DEFINED U/S 80IA(4) OF THE ACT. HON BLE HIGH COURT DISCUSSED THE FACT OF THE CASE THAT THE ASSESSEE HAS NOT DEVELOPED ROAD OR A TOLL ITA NOS.1388 TO 1392/KOL/2012 M/S.VANTAGE ADVERTISING PVT.LTD. A.YR S . 2004 - 05, 2006 - 07 TO 2009 - 10 5 ROAD, BRIDGE, HIGHWAY OR A RAIL SYSTEM. HOWEVER, IT HAD DEVELOPED THE EXISTING ROAD MEDIAN, ERECTED BUS SHELTERS AND LIGHT POLES FOR ITS ADVERTISEMENT BUSINESS, WHICH, IN ANY CASE CANNOT BE TREATED AS INFRASTRUCTURE DEVELOPMENT. ACCORDINGLY, HON BLE HIGH COURT DECIDED THE QUESTION OF LAW IN FAVOUR OF REVENUE AND AGAINST ASSESSEE. IN VIEW OF THE ABOVE THE LD. DR PRAYED THAT THE ASSESSEE CANNOT BE ALLOWED ANY DEDUCTION U/S 80IA OF THE ACT. 7. THE LD. COUNSEL OF THE ASSESSEE , ON THE OTHER HAND, SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL S DECISION AS MENTIONED ABOVE. IN THE SAID ORDER THE TRIBUNAL HAD HELD AS UNDER : - AFTER HEARING BOTH THE SIDES, WE FIND THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S 80IA ON BUS SHELTERS TREATING THE SAME AS INTEGRAL PART OF HIGHWAY AND DEVELOPMENT INFRASTRUCTURE. FOR THE PURPOSE OF HIGH WAY SYSTEM THE BUILDING OF THE BUS SHELTERS ARE FUNCTIONAL NECESSITY AND THESE ARE INEXTRICABLY CONNECTED WITH THE INFRASTRUCTURE REQUIRED FOR HIGHWAY. WITHOUT BUS SHELTER S THE SMOOTH MOVEMENT OF THE VEHICLES AND THE OPERATION OF THE VEHICLES THROUGH THE HIGH WAY SHALL NOT BE OF DESIRED LEVEL. THUS THE BUS SHELTERS ARE FUNCTIONALLY NECESSARY PART AND PARCEL OF THE HIGHWAY INFRASTRUCTURE. BY HOLDING SO WE FIND THAT THE LD. C IT(A) HAS RIGHTLY ALLOWED THE APPEAL OF THE ASSESSEE ON THIS ISSUE. WE UPHOLD THE SAME AND DISMISS THIS GROUND OF APPEAL TAKEN BY THE DEPARTMENT. 7.,1. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ABOVE SAID ORDER OF THE TRIBUNAL HAD BEEN APPEALED AGAINST BY THE DEPARTMENT IN THE HON BLE HIGH COURT AND THE HON BLE CALCUTTA HIGH COURT HAS NOT YET REVERSED THE DECISION OF THE ITAT. HENCE HE SUBMITTED THAT THE TRIBUNAL S ORDERS SHOULD BE SUSTAINED. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ISSUE INVOLVED IS C OVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF DCIT VS SELVEL ADVERTISING PVT. LTD. FOR A.YRS. 2006 - 07 TO 2008 - 09 VIDE ITA NOS.657 TO 659/KOL/2011 VIDE ORDER DATED 01.01.2015 WHEREIN THE IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. IN THAT CASE IT WAS ALSO POINTED OUT THAT THE HON BLE CALCUTTA HIGH COURT HAD PASSED AN ORDER CONFIRMING THE ORDER OF THE ITAT IN QUASHING A REVISION ORDER PASSED BY LD. CIT U/S 263 OF THE ACT WHEREBY ALLOWANCE OF SECTION 80IA OF TH E ACT ON BUS SHELTERS AND FOOT OVER BRIDGES WAS DISALLOWED. ITA NOS.1388 TO 1392/KOL/2012 M/S.VANTAGE ADVERTISING PVT.LTD. A.YR S . 2004 - 05, 2006 - 07 TO 2009 - 10 6 7.2. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT SECTION 80IA OF THE ACT PROVIDES FOR DEDUCTION ON ACCOUNT OF PROFITS AND GAINS DERIVED BY AN INDUSTRIAL UNDERTAKING FROM ANY BUSINESS REFERRED TO THEREIN. THE LD. COUNSEL FURTHER SUBMITTED THAT THE HON BLE APEX COURT IN THE CASE OF LIBERTY INDIA LTD. (SUPRA) DEALT WITH THE QUESTION WHETHER THE PROFIT FROM THE DUTY ENTITLEMENT PASS BOOK SCHEME (DEPB) AND THE DUTY DRAWBACK SCHEME COULD BE SAID TO BE PROFIT DERIVED FROM THE BUSINESS OF AN INDUSTRIAL UNDERTAKING ELIGIBLE FOR DEDUCTION U/S 80IB OF THE IT ACT. HENCE HE SUBMITTED THAT THIS CASE LAW DOES NOT SUPPORT THE CASE OF THE DEPARTMENT. HE FURTHER SUBMITTED THAT THE VERY AGREEMENTS UNDER WHICH THE ASSESSEE HAS DEVELOPED, OPERATED AND MAINTAINED THE INFRASTRUCTURE FACILITY AT ITS OWN COST PROVIDED FOR REVENUE GENERATION BY THE ASSESSEE BY THE DISPLAY OF COMMERCIAL ADVERTISEMENT ON THE INFRASTRUCTURE FACILITY DEVELOPED BY IT. THE LD. COUNS EL FURTHER SUBMITTED THAT THE ASSESSEE WAS ALSO NOT TO CHARGE ANY AMOUNT FROM THE PUBLIC USERS OF THE INFRASTRUCTURE FACILITY DEVELOPED BY IT. THAT THE ASSESSEE WAS HOWEVER PERMITTED TO USE THE INFRASTRUCTURE FACILITY DEVELOPED BY IT TO RAISE REVENUE BY DI SPLAY OF COMMERCIAL ADVERTISEMENTS ON IT. THAT THE PROVISION IN THE AGREEMENTS RELATING TO GENERATION OF REVENUE IN THE MANNER AFORESAID IS INEXTRICABLY AND DIRECTLY CONNECTED WITH THE DEVELOPMENT, OPERATION AND MAINTENANCE OF THE INFRASTRUCTURE FACILITY P ROVIDED FOR IN THE AGREEMENTS. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE DID NOT MERELY DEVELOP THE INFRASTRUCTURE FACILITY BUT THE ASSESSEE ALSO OPERATED AND MAINTAINED THE INFRASTRUCTURE FACILITY WHICH ACTIVITY ARE ALSO COVERED BY SECTION 80IA OF THE ACT. IN THIS REGARD THE LD. COUNSEL FURTHER REFERRED TO THE DECISION OF THE HON BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS CEMENT MANUFACTURING CO. LTD. IN ITAT NO.130 OF 2014 VIDE ORDER DATED 15.01.2015. IN THIS CASE THE HON BLE CALCUTTA HIGH CO URT HAS UPHELD ITAT S DECISION HOLDING THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION U/S 80IC OF THE ACT BY TREATING THE TRANSPORT AND INTEREST SUBSIDY AS PART OF THE BUSINESS PROFIT. ACCORDINGLY LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT ASSESSEE S CLAIM OF DEDUCTION U/S 80IA OF THE ACT CANNOT BE DISALLOWED. 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. WE FIND THAT THE ISSUE ON MERITS A S TO WHETHER THE ASSESSEE IS ENTITLED TO DEDUCTION U/S ITA NOS.1388 TO 1392/KOL/2012 M/S.VANTAGE ADVERTISING PVT.LTD. A.YR S . 2004 - 05, 2006 - 07 TO 2009 - 10 7 80IA OF THE ACT FOR CONSTRUCTION OF FOOT OVER BRIDGE AS WELL AS BUS SHELTER IS COVERED IN FAVOUR OF ASSESSEE BY THE DECISION OF THE TRIBUNAL AND THE HON BLE CALCUTTA HIGH COURT AS REFERRED IN THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE. THE TRIBUNAL IN ASSESSEE S OWN CA SE AS WELL AS IN TH E CASE OF DCIT VS SELVEL ADVERTISING PVT. LTD. (SUPRA) HAS HELD THAT BUS SHELTERS AND FOOT OVER BRIDGES SHOULD BE CONSIDERED AS PART OF THE INFRASTRUCTURE FACILITY FOR CLAIMING DEDUCTION U/S 80IA OF THE ACT. THIS ISSUE WAS ALSO SUPPORTED BY THE DECISION OF THE HON BLE CALCUTTA HIGH COURT IN THE CASE OF SELVEL ADVERTISING PVT. LTD. WHEREIN THE HON BLE HIGH COURT HAS UPHELD ITAT S DECISION QUASHING THE REVISION ORDER PASSED BY LD. CIT U/S 263 OF THE ACT WHEREIN BUS SHELTERS AND FOOT OVER BRIDGES WERE NOT TO B E CONSIDERED AS PART OF THE INFRASTRUCTURE FACILITY FOR CLAIMING DEDUCTION U/S 80IA OF THE ACT. 8.1. AS REGARDS THE ISSUE RAISED BY THE LD. DR THAT THE INCOME WHICH IS THE SUBJECT MATTER OF CLAIM OF DEDUCTION U/S 80IA OF THE ACT WAS NOT DERIVED FROM THE B USINESS OF ADVERTISING OF BUS SHELTERS AND FOOT OVER BRIDGES, W E FIND THAT THIS IS ALTOGETHER A NEW ISSUE WHICH IS NOT EVEN THE CASE OF AO. THE AO HAS MADE THE DISALLOWANCE ONLY ON THE GROUND THAT CONSTRUCTION OF BUS SHELTER AND FOOT OVER BRIDGE CANNOT BE TREATED AS DEVELOPMENT OF INFRASTRUCTURE FACILITY. HENCE THEY DO NOT QUALIFY FOR DEDUCTION U/S 80IA OF THE ACT. THIS ASPECT OF AO S DISALLOWANCE HAS BEEN DULY OVER RULED BY LD. CIT(A) AS WELL AS ITAT. THE SAME ALSO DRAWS SUPPORT FROM THE HON BLE CALCUTTA H IGH COURT DECISION IN THE CASE OF D CIT VS SELVEL ADVERTISING P.LTD. IN THESE CASES IT HAS BEEN HELD THAT DEVELOPMENT OF FOOT OVER BRIDGES AND BUS SHELTERS DO QUALIFY FOR DEDUCTION U/S 80IA OF THE ACT ON ACCOUNT OF INFRASTRUCTURE DEVELOPMENT. WHEN THE AO H AS NOT RAISED ANY ISSUE AS TO WHETHER THE INCOME OF THE ASSESSEE CAN BE CONSIDERED TO BE INCOME DERIVED FROM THE INDUSTRIAL UNDERTAKING AND THE SAME WAS ALSO NOT THE SUBJECT MATTER OF CONSIDERATION BEFORE THE LD. CIT(A) NOR ANY SUCH GROUND HAS BEEN RAISED BEFORE THE ITAT , IN OUR CONSIDERED OPINION THE LD. DR CAN NOT NOW ENLARGE THE SCOPE OF THE REVENUE S APPEAL BEFORE US . ITA NOS.1388 TO 1392/KOL/2012 M/S.VANTAGE ADVERTISING PVT.LTD. A.YR S . 2004 - 05, 2006 - 07 TO 2009 - 10 8 8.2. IN THIS REGARD WE ALSO DRAW SUPPORT FROM THE HON BLE MADHYA PRADESH HIGH COU RT EXPOSITION IN THE CASE OF KAMAL KISHORE AND CO. VS C IT 232 ITR 668 FOR THE FOLLOWING PROPOSITION : SECTION 253 OF THE INCOME - TAX ACT, 1961, PERMITS APPEALS TO THE APPELLATE TRIBUNAL. UNDER SUB - SECTION (2) OF THIS SECTION, THE COMMISSIONER MAY, IF HE OBJECTS TO ANY ORDER, DIRECT THE ASSESSING OFFICER TO APP EAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER. IT IS THUS CLEAR THAT THERE HAS TO BE AN APPEAL AND THERE HAS TO BE A SPECIFIC OBJECTION. UNDER ORDER 41, RULE 2, OF THE CODE OF CIVIL PROCEDURE ALSO IT IS CLEAR THAT THE APPELLANT SHALL NOT EXCEPT BY LEAVE OF THE COURT, URGE OR BE HEARD IN SUPPORT OF ANY GROUND OF OBJECTION NOT SET FORTH IN THE MEMORANDUM OF APPEAL. ON THE BASIS OF THE ABOVE RATIO THE HON BLE HIGH COURT HAD HELD THAT ADMITTEDLY THE GROUN D OF STATUS WAS NOT TAKEN BY THE DEPARTMENT IN TERMS OF SECTION 253(2) OF THE ACT. NO LEAVE WAS OBTAINED TO URGE THE GROUND IN REGARD TO THE STATUS AS REGARDS THE LIABILITY TO TAX. THE TRIBUNAL ERRED IN LAW IN SETTING ASIDE THE FINDINGS GIVEN BY THE APPELLATE ASSISTANT COMMISSIONER THAT THE ASSESSEE WAS A SE PARATE ENTITY AND THE ASSESSMENT MADE IN THE CASE OF THE ASSESSEE SHOULD BE TREATED AS SUBSTANTIVE. 8.3. THUS FROM THE ABOVE WE HOLD THAT THE ISSUE WHICH WAS NOT THE BASIS OF DISALLOWANCE BY THE AO AND THE SAME WAS NOT THE SUBJECT MATTER OF CONSIDERATIO N BY THE LD. CIT(A) AND THE SAME WAS ALSO NOT THE SUBJECT MATTER OF THE GROUND OF APPEAL TAKEN BEFORE ITAT THE ISSUE NOW BEING RAISED BY THE LD. DR NEED NOT BE ADJUDICATED BY US. HENCE ON THE ISSUE AS TO WHETHER FOOT OVER BRIDGES AND BUS SHELTERS QUALIFY F OR DEDUCTION OF SECTION 80IA OF THE ACT WE HOLD THAT THE LD. CIT(A) IS CORRECT IN HOLDING THE ASSESSEE S ENTITLEMENT FOR DEDUCTION U/S 80IA OF THE ACT. ACCORDINGLY THIS GROUND OF APPEAL RAISED BY THE REVENUE STANDS DISMISSED. 9. IN THE RESULT THESE APPEALS FILED BY THE REVENUE STAND DISMISSED. ORDE R PRONOUNCED IN THE COURT ON 1 0.03.2015. SD/ - SD/ - [ MAHAVIR SINGH ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 10.03.2015. R.G.(.P.S.) ITA NOS.1388 TO 1392/KOL/2012 M/S.VANTAGE ADVERTISING PVT.LTD. A.YR S . 2004 - 05, 2006 - 07 TO 2009 - 10 9 COPY OF THE ORDER FORWARDED TO: 1 . M/S VANTAGE ADVERTIS ING PVT. LTD., 10/1G, DIAMOND HARBOUR ROAD, KOLKATA - 700027. 2 D.C.I.T., CIRCLE - 12, KOLKATA. 3 . CIT(A) - XII , KOLKATA 4. CIT - KOLKATA. 5. CIT - DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES