DCIT, CHENNAI V. A L Logistics Pvt Ltd., CHENNAI

ITA 1814/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8061 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 21-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 10-08-2015
• Court: TRIBUNAL
• Department Lawyers: K PARASHIVAIAH
• Assessee Lawyers: K BALASUBR AMANIAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , !' # $' # % . ! &' ( )* BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NOS.1814,1815 & 1816 /MDS./2015 ( ( + ',+ / ASSESSMENT YEARS :2007-08, 2008-09 & 2011-12) THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-1(I), CHENNAI. VS. M/S.A L LOGISTIC S PVT. LTD ., 113, ARMENIAN STREET, CHENNAI 600 001. PAN AAECA 5279 L ( / APPELLANT ) ( / RESPONDENT ) -. / 0 / APPELLANT BY : MR.K.PARASHIVAIAH, CIT D.R 12-. / 0 / RESPONDENT BY : MR.K. BALASUBRAMANIAN, ADVOCATE # ' / 3 / DATE OF HEARING : 21.01.2016 45, / 3 /DATE OF PRONOUNCEMENT : 29.01.2016 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THESE THREE APPEALS ARE FILED BY THE REVENUE ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF THE LEARNED COMMIS SIONER OF INCOME ITA NOS.1814,1815/MDS/2015 2 TAX(A)-II, CHENNAI, ALL THE ORDERS DATED 26.05.1015 PERTAINING TO THE ASSESSMENT YEARS 2007-08, 2008-09 & 2011-12 . 2. THE COMMON GROUND RAISED BY THE REVENUE IN THES E THREE APPEALS IS WITH REGARD TO DELETION OF DISALLOWANCE OF ` 1,97,89,979/- (A.Y 2007-08), ` 2,28,57,849/- (A.Y 2008-09) & ` 2,9,87,86,479/-(A.Y 2011-12) MADE U/S.80IA(4) OF THE ACT. 3. AT THE OUTSET, THE LD.A.R SUBMITTED THAT IDENTI CAL ISSUE HAS ALREADY CAME UP BEFORE THE TRIBUNAL FOR ADJUDICATIO N IN ASSESSEES OWN CASE IN ITA NO.469/MDS./14 DATED 14 TH JULY, 2014 IN ASSESSEES APPEAL AND IN ITA NO.1412/MDS./12 IN REVENUES APPE AL AND DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. LD.D. R SUBMITTED THAT REVENUE IS AGGRIEVED BY THE ORDER OF THE LD. CIT (A ), WHO HAD ERRED IN ALLOWING DEDUCTION US/ 80-IA(4) OF THE ACT FOLLO WING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE IN TAX CASE (APPEAL) NO.1031 OF 2014 DATED 23.12.2014(2015 -TIOL-93-HC- MAD-IT) ,THOUGH THE SLP FILED BY THE REVENUE BEFORE THE HONBLE APEX COURT IS PENDING. ITA NOS.1814,1815/MDS/2015 3 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. FROM THE FACTS OF THE CASE IT APPEARS THAT THE LD. ASSESSING OFFICER WAS OF THE VIEW THAT SINCE THE REVENUE WAS ON APPEAL AGAINST THE DECISION OF THE HONBLE MADRAS HIGH COURT BEFOR E THE HONBLE APEX COURT, HE NEED NOT FOLLOW THAT DECISION. HE D ID NOT REALIZE THAT MERE FILING OF THE SLP BEFORE THE APEX COURT IS NOT A VALID GROUND FOR NOT FOLLOWING THE JUDGMENT OF THE HONBLE MADRAS HI GH COURT. WE ARE OF THE OPINION THAT HIS ISSUE HAS ALREADY BEEN DECI DED BY THIS TRIBUNAL IN THE EARLIER ASSESSMENT YEARS CITED SUPR A AND ALLOWED THE CLAIM OF THE ASSESSEE. THE DEPARTMENT CARRIED THE A PPEAL TO THE HONBLE JURISDICTIONAL HIGH COURT AND HONBLE HIGH COURT OF MADRAS IN ASSESSEES OWN CASE CITED SUPRA ALSO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AS FOLLOWS:- ON APPEAL BY THE REVENUE, THE TRIBUNAL HELD THAT , ++ AS HAS BEEN OBSERVED BY THE TRIBUNAL, IN THE DEC ISION OF THE DELHI HIGH COURT IN THE CASE OF CONTAINER CORPORATION OF INDIA LTD., VS. ACIT REPORTED IN 2012- TIOL-394-HC-DG.L-IT, CONTAINER FREIGHT STATION IS H ELD TO BE FALLING WITHIN THE CUSTOMS AREA ATTACHED TO THE PORT. AS THE WORK RELA TING TO CUSTOMS IS PERFORMED AT THESE INLAND CONTAINER DEPOTS/CONTAINER, FREIGHT STATIONS, IT WOULD FALL UNDER THE PROVISION OF SECTION 801A(4)(I) EXPLANATION(D) OF T HE ACT. THE PLEA OF REVENUE ITA NOS.1814,1815/MDS/2015 4 THAT ANY OTHER PUBLIC FACILITY ON SIMILAR NATURE HA S BEEN OMITTEC WITH EFFECT FROM 1.4.2002 WILL NOT MAKE THE CASE ANY DIFFERENT IN VI EW OF THE DECISION OF TH DELHI HIGH COURT, WHICH HOLDS THAT CSF IS PART OF AN INLA ND PORT AND THERE IS NO SPECIFIC EXCLUSION OF CSF IN CLAUSE (D) OF EXPLANATION TO SE CTION 801A(4)(I). THEREFORE, ON FACT WHER IT HAS BEEN FOUND BY THE TRIBUNAL THAT CS F IS AN INFRASTRUCTURE FACILITY, THERE IS NO GOOD REASON TO DIFFER ON FACT. THIS COU RT RESPECTFULLY AGREE WITH THE DELHI HIGH COURT; ++ THE NEXT ISSUE IS AS TO WHETHER THE REQUIREMENT OF SECTION 801A(4)(I) HAS BEER SATIS FLED. THIS APPARENTLY IS THE KEY ISSUE ON WHI CH THE REVENUE IS TRYING TO FALL BACK OR STATING THAT CERTAIN CONDITIONS HAVE NOT BE EN COMPILED WITH AND THERE IS NO AGREEMENT A REQUIRED U/S 801A(4)(I) OF THE ACT. TO THIS, THE ASSESSEE HAS SUBMITTED AND THE TRIBUNAL HA CONSIDERED THE PROPOS AL APPROVED BY THE GOVERNMENT OF INDIA, MINISTRY OF COMMERCE ANC INDUS TRY DATED 27.5.2003, WHICH HAS BEEN EXTRACTED TH PARAGRAPH 6 OF THE TRIBUNAL A ND TH PUBLIC NOTICE DATED 10.11.2013 ISSUED BY THE COMMISSIONER OF CUSTOMS (P ORT), KOLKATT PERMITTING THE CSF TO OPERATE. ONCE THE PUBLIC NOTICE WAS ISSUED A ND IS VALID AS ON DATE, I IS DEEMED TO BE APPROVAL GRANTED BY THE COMPETENT AUTH ORITY OF THE CENTRAL GOVERNMENT OI AN UNDERTAKING OR A BODY OF THE CENTR AL GOVERNMENT. THIS PRINCIPLE HAS BEEN ENUNCIATED B THE SUPREME COURT I N THE CASE OF UNION OF INDIA V. SAMPAT RAF DUGAR - 2002-TIOL-141-SC CUS-LB. WHE REIN IT HAS BEEN HELD THAT ONCE A LICENSE IS ISSUED, IT IS VALID UNTIL CA NCELLED. THEREFORE THESE TWO DOCUMENTS SATISFY THE REQUIREMENT OF SECTION 801A(4 ) OF THE ACT. THERE IS NO ITA NOS.1814,1815/MDS/2015 5 MANNER OF CONFUSION AS THE FACTS CULLED OUT BY THE TRIBUNAL CLEARLY SHOW THA THE RESPONDENT/ASSESSEE HAS COMPLIED WITH THE REQUIREME NTS OF SECTION 801A(4)(I); ++ YET ANOTHER FACTOR WHICH HAS BEEN RAISED BY THE REVENUE IS THAT TH RESPONDENT/ASSESSEE IS ONLY A CUSTODIAN FOR THE MOV EMENT AND HANDLING OF CONSIGNMENT IN THE CONTAINER FREIGHT STATION. IT IS APPARENTLY A MISUNDERSTANDING OF THE LETTER OF THE MINISTRY OF COMMERCE DATED 27. 5.2003; ++ IN PARAGRAPH 7 OF THE ORDER OF THE TRIBUNAL, THE LETTER ISSUED BY THE GOVERNMENT O INDIA, MINISTRY OF COMMERCE, WHICH HAS BEEN EXTRACTED AS SUCH, CLEARLY STATE THAT WITH REFERENCE TO THE LETTER DAT ED 8.2.2003, THE GOVERNMENT HAS APPROVED THE PROPOSAL FOI SETTING UP OF A CONTAINER FREIGHT STATION AT HALDIA FOR HANDLING IMPORT AND EXPORT CARGO. THEREFORE, THERE CANNOT BE ANY DOUBT IN THE LIGHT OF THE APPROVAL GIVEN BY THE GOVERNMENT. THE REASON OF THE TRIBUNAL IS UNIMPEACHABLE; ++ IN THE LIGHT OF THE ABOVE, THERE IS NO REASON TO INTERFERE WITH THE ORDER OF THE TRIBUNAL. IN VIEW OF THE ABOVE JUDGMENT OF JURISDICTIONAL HIG H COURT IN ASSESSEES OWN CASE, WE ARE INCLINED TO DISMISS ALL THE APPEALS OF THE REVENUE. ITA NOS.1814,1815/MDS/2015 6 5. IN THE RESULT, THE ALL THE APPEALS FILED BY THE REVENUE FOR THE ASSESSMENT YEARS 2007-08, 2008-09 & 2011-12 ARE DIS MISSED. ORDER PRONOUNCED ON FRIDAY, THE 29 TH OF JANUARY,2016 AT CHENNAI. SD/- SD/- ( # $' # % . ! &' ) ( DUVVURU RL REDDY ) ) ( ( ) ) ( CHANDRA POOJARI ) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 29 TH JANUARY,2016 . K S SUNDARAM. 8 / 1(39: ;:,3 /COPY TO: 1. -. /APPELLANT 2. 12-. /RESPONDENT 3. # <3 () /CIT(A) 4. # <3 /CIT 5. :'=> 1(3( /DR 6. >'+ ? /GF