ACIT, CHENNAI V. M/s. Tidel Park Limited, CHENNAI

ITA 2122/CHNY/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68702 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 26-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNEEL VERMA
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Business income
• Section: 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P.GEORGE , ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA NO. 2104/MDS/2011 (ASSESSMENT YEAR: 2008-09) M/S. TIDEL PARK LTD., C/O.M/S.R.JANAKIRAMAN & CO., C.AS 6, OLD NO.43, MAHARAJA SURIYA ROAD, ALWARPET, CHENNAI-600 118. PAN: AABCT0666R (APPELLANT) VS. & ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-III(2), CHENNAI-600 034. (RESPONDENT) ITA NO. 2122/MDS/2011 & C.O.NO.18/MDS/2012 (IN ITA NO.2122/MDS/2011) (ASSESSMENT YEAR: 2008-09) ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-III(2), CHENNAI. VS. M/S. TIDEL PARK LTD., C/O. M/S.R.JANAKIRAMAN & CO., C.AS 6, OLD NO.43, MAHARAJA SURIYA ROAD, ALWARPET, CHENNAI-600 118. PAN: AABCT0666R (APPELLANT) (RESPONDENT/CROSS OBJECTOR) ASSESSEE BY : MR. R.VIJAYARAGHAVAN, ADVOCATE REVENUE BY : MR. SUNEEL VERMA, CIT DATE OF HEARING : 24 TH SEPTEMBER, 2013 DATE OF PRONOUNCEMENT : 27 TH SEPTEMBER, 2013 O R D E R PER CHALLA NAGENDRA PRASAD, JM : THESE TWO CROSS APPEALS ARE FILED BY THE ASSESSEE AND THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER O F INCOME TAX (APPEALS) -VI, CHENNAI DATED 30.09.201 1 FOR THE ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 2 ASSESSMENT YEAR 2008-09. THE CROSS OBJECTION IS FI LED BY THE ASSESSEE AGAINST THE APPEAL OF THE REVENUE IN ITA NO.2122/MDS/2011 IN SUPPORT OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). 2. THE GRIEVANCE OF THE ASSESSEE IN ITS APPEAL IS T HAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT G RANTING DEDUCTION UNDER SECTION 80IA(4)(III) IN RESPECT OF THE FOLLOWING INCOME:- 1. RENT OTHERS : ` 1,89,94,202/- 2. RENT FROM AUDITORIUM : ` 32,88,551/- 3. INTEREST INCOME : ` 7,74,19,358/- 4. OPERATION & MAINTENANCE INCOME: ` 9,41,22,297/- 5. REVENUE SHARING INCOME : ` 90,925/- 6. OTHER INCOME : ` 21,29,999/- 3. THE REVENUE IS IN APPEAL AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS) IN HOLDING THA T RENT OF ` 51,86,67,230/- FROM PREMISES I.E. LEASE RENT INC OME OF THE ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 3 INDUSTRIAL PARK, BUILT-UP SPACE MEANT FOR I.T. INDU STRIES, IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA(4)(III). 4. BRIEF FACTS ARE THAT THE ASSESSEE IS A COMPANY PROMOTED BY TIDCO AND ELCOT (GOVERNMENT OF TAMIL NA DU UNDERTAKINGS) AND IS ENGAGED IN THE BUSINESS OF DE VELOPING, OPERATING AND MAINTAINING INFORMATION TECHNOLOGY PA RK/ SOFTWARE TECHNOLOGY PARK (STP) UNDER THE NAME AND S TYLE OF TIDEL PARK AS PER APPROVAL OF THE GOVERNMENT OF IN DIA, MINISTRY OF INDUSTRY, GOVERNMENT OF INDIA. THE ASS ESSEE DURING THE ASSESSMENT YEAR UNDER CONSIDERATION RECE IVED THE FOLLOWING INCOMES AND CLAIMED THAT THE SAID INCOMES ARE ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS AND CLAIMED DEDUCTION UNDER SECTION 80IA(4)(III) OF TH E ACT ON THE WHOLE OF SUCH INCOME:- RENT FROM PREMISES ` 51,86,67,230 OPERATION & MAINTENANCE INCOME ` 9,41,22,297 REVENUE SHARING INCOME ` 90,925 INTEREST INCOME ` 7,74,19,358 ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 4 COMMON FACILITIES SUCH AS RENT FROM AUDITORIUM ` 32,88,551 RENT OTHERS ` 1,89,94,202 OTHER INCOME ` 21,29,999 THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSME NT ASSESSED THE RENT FROM PREMISES AS INCOME FROM HOU SE PROPERTY AND THE REST OF THE INCOMES UNDER THE HEA D INCOME FROM OTHER SOURCES NOT DERIVED FROM BUSINESS FOR THE PURPOSE OF ALLOWING RELIEF UNDER SECTION 80IA(4)(II I) OF THE ACT. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) , INSOFAR AS THE RENT OF ` 51,86,67,230/- FROM PREMISES I.E. LEASE RENT INCOME OF INDUSTRIAL PARK IS CONCERNED, HELD THAT THE SAME IS ASSESSABLE UNDER THE HEAD PROFITS AND GAIN S OF BUSINESS OR PROFESSION AND DEDUCTION IS ALLOWABLE UNDER SECTION 80IA ON SUCH INCOME. IN RESPECT OF OPERATI ON AND MAINTENANCE INCOME OF ` 9,41,22,297/-, REVENUE SHARING INCOME OF ` 90,925/- AND OTHER INCOME OF ` 21,29,999/-, THE COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE SAID INCOMES ARE NOT BUSINESS INCOME AS THEY ARE ONLY IN COME FOR THE ANCILLARY SERVICES / INCIDENTAL SERVICES AND TH EREFORE, NOT ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 5 ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA OF THE AC T. THE COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE SAID INCOME HAS TO BE ASSESSED UNDER THE HEAD INCOME FR OM OTHER SOURCES. HOWEVER, THE COMMISSIONER OF INCOME TAX (APPEALS) ACCEPTED THE ALTERNATIVE SUBMISSION OF TH E ASSESSEE THAT IF THIS INCOME IS ASSESSED UNDER THE HEAD INCOME FROM OTHER SOURCES EXPENSES INCURRED FOR EARNING THESE INCOME HAVE TO BE EXCLUDED. ACCORDINGLY, HE DIRECTED THE ASSESSING OFFICER TO ASCERTAIN THOSE EXPENSES A ND REDUCE FROM SUCH INCOME AND COMPUTE NET INCOME FROM INCOM E FROM OTHER SOURCES. IN RESPECT OF INTEREST INCOME OF ` 7,74,19,358/- RENT FROM AUDITORIUM OF ` 32,88,551/- AND , RENT FROM OTHERS OF ` 1,89,94,202/- HE HELD THAT THESE INCOMES ARE NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA OF THE ACT. 5. THE COUNSEL FOR THE ASSESSEE RELYING ON THE DEC ISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS . ELNET TECHNOLOGIES LTD. IN TAX CASE (APPEAL) NO.392 & 39 2 OF 2007 DATED 15.10.2002 AND THE DECISION OF THE CO-O RDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ACIT VS. TICE L BIO PARK ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 6 LTD. IN ITA NO.2123/MAD/2011 DATED 2.4.2013 SUBMIT S THAT THE ENTIRE INCOME RECEIVED FROM LETTING OUT OF THE PREMISES OF THE ASSESSEE INCLUDING INCOME RECEIVED FOR PROVIDI NG ALL OTHER FACILITIES HAVE TO BE CONSIDERED AS BUSINESS INCOME ONLY. THE COUNSEL SUBMITS THAT INCOME FROM DEVELO PING, OPERATING AND MAINTAINING SOFTWARE TECHNOLOGY PARK (STP) WOULD INCLUDE RENT FOR THE USE OF MODULES AND ALSO CHARGES FOR OTHER SERVICES PROVIDED TO THE USERS OF STP MO DULES. HE SUBMITS THAT STP MODULES CANNOT BE OPERATED WITHOU T THESE ANCILLARY SERVICES. THEREFORE, HE SUBMITS THAT ENTI RE INCOME ARISING TO THE ASSESSEE IS INTIMATELY CONNECTED WIT H THE DEVELOPMENT, OPERATION AND MAINTENANCE OF STP AND H ENCE THE ENTIRE INCOME IS DERIVED FROM THE BUSINESS OF MAINTENANCE AND OPERATION OF STP INCLUDING THE LEAS E RENT RECEIVED FROM THE USER OF MODULES AND IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA OF THE ACT. 6. IN RESPECT OF INTEREST INCOME OF ` 7,74,19,358/- AND OTHER INCOME OF ` 21,29,999/-, THE COUNSEL FOR THE ASSESSEE IS NOT SERIOUS IN HIS SUBMISSION THAT THEY SHOULD B E TREATED AS ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 7 INCOME FROM BUSINESS FOR THE PURPOSE OF DEDUCTION U NDER SECTION 80IA. 7. THE COUNSEL FOR THE ASSESSEE SUBMITS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) THOUGH ACCEPT ED THAT RENT FROM PREMISES IS ASSESSABLE AS INCOME FROM BUS INESS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IA, HE DID N OT ACCEPT THE SUBMISSION OF THE ASSESSEE THAT INCOMES LIKE OP ERATIONAL AND MAINTENANCE INCOME, REVENUE SHARING INCOME, REN T FROM AUDITORIUM, RENT FROM OTHERS ARE INCOME FROM BUSINE SS FOR THE PURPOSE OF COMPUTING RELIEF UNDER SECTION 80IA OF T HE ACT. HE SUBMITS THAT THESE INCOMES ARE BUSINESS INCOME ALL OWABLE FOR DEDUCTION UNDER SECTION 80IA OF THE ACT. THE CO UNSEL SUBMITS THAT OTHER RENT OF ` 1,89,94,202/- INCLUDES CAR PARKING CHARGES, COMMUNICATION/ELECTRICAL CHARGES, ELECTRIC AL ROOM RENT, OTHER RENTAL INCOME, RENTAL TWO WHEELER PARK ING, RENT FOR USAGE AREA, TELECOM ROOM RENT USE, USAGE OF CABLE D UCT ETC. THE COUNSEL SUBMITS THAT ALL THESE FACILITIES ARE P ROVIDED IN THE COURSE OF LETTING OUT OF PREMISES WHILE MAINTAI NING THE INDUSTRIAL PARK AND THE SAID INCOME IS THEREFORE BU SINESS INCOME ONLY. IN RESPECT OF RENT FROM AUDITORIUM, T HE COUNSEL ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 8 SUBMITS THAT THE AUDITORIUM IS USED EXCLUSIVELY FOR THE MEMBERS OF INDUSTRIAL TECHNOLOGY PARK, THEREFORE, IT SHOULD BE TREATED AS BUSINESS INCOME FOR THE PURPOSE OF DE DUCTION UNDER SECTION 80IA OF THE ACT. 8. THE DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPP ORTS THE ORDER OF THE LOWER AUTHORITIES IN TREATING THE SAID INCOMES AS INCOME FROM OTHER SOURCES NOT ELIGIBLE FOR DEDUC TION UNDER SECTION 80IA OF THE ACT. IN RESPECT OF RENT FROM P REMISES, I.E. LEASE RENT INCOME FROM INDUSTRIAL PARK IS CONCERNED , THE DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THIS ISS UE CAME UP BEFORE THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. ELNET TECHNOLOGIES PVT. LTD.,(SUPRA). 9. HEARD BOTH SIDES. PERUSED THE ORDERS OF LOWER AUTHORITIES AND CASE LAWS RELIED ON BY THE PARTIES. INSOFAR AS THE LEASE RENT FROM INDUSTRIAL PARK I.E. INCOME FRO M PROVIDING MODULES CONSISTING OF BUILT-UP SPACE WITH COMMON INFRASTRUCTURE FACILITIES IS CONCERNED, THE COMMIS SIONER OF INCOME TAX (APPEALS) CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE VARIOUS AGREEMENTS AND APPROVALS E NTERED ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 9 INTO BY THE ASSESSEE FOR THE PURPOSE OF SETTING UP OF INDUSTRIAL PARK HELD THAT THE SAID INCOME IS TO BE ASSESSED AS PROFITS AND GAINS FROM BUSINESS OR PROFESSION ELIG IBLE FOR DEDUCTION UNDER SECTION 80IA OF THE ACT. WHILE HOLD ING SO, THE COMMISSIONER OF INCOME TAX (APPEALS) HELD AS UNDER: - 6 .10. I HAV E C A R EFULLY CONS I D ER ED THE F ACTS OF THE CASE AND T HE SUB MISSI O NS O F T H E I D. A R . I HAVE ALSO PERUSE D THE A P P R OVAL AND THE NOTI F IC A TI O N I SS UE D BY THE MINISTRY O F I N DU S T RY AND CBDT . I HAVE A L SO GONE TH R O UGH TH E D E C IS IO N S REL IED ON BY THE /\ O AND AR . D E D U C TION U / S 80 L A I S A VAI LABL E T O A N A S S E SS EE F O R THE PRO F I T S A N D GAIN S OF AN U ND ERTAKING E N T E R P RISE DE R I V E D F ROM ELIG I B L E BU S I NESS . T H E E L I G I BL E BUS I NESS IN THIS C ASE I S A N U N DE R TAK I NG WH I C H DEVE L OPS, D EVE L OP S & OPE R A T ES O R MAIN T A I NS & OPERATE A N I N D U ST RI AL PARK N O TI FIED B Y T H E CE NTRAL GOVERNMEN T I N A CC O RD A N C E WIT H T HE SCHE M E FR A ME D AND N OTIFIED BY TH E GOVE R NM ENT D U R ING THE P E R I O D 01 . 04.19 9 7 TO 31 . 3 . 2006 ( NOW UP TO 2 011). TH E QU A N T UM OF D E D U CTIO N IS 1 00% FOR T EN C ON S ECU T I VE YE A R S I N A BLO CK O F FIF TEEN YEARS . T H E I N IT IA L YEAR IS W H E N TH E I ND U S T R IAL P AR K I S D E V E LOPED . I N C A SE W H ERE A N U ND E R T AK I N G D E VELOPS AN I N D U STRIAL PAR K A ND T R ANSFER THE OP E R A TI ON A N D M A I NT E NAN CE OF SUCH INDUST R IA L PAR K TO A N O TH ER UNDERTAKING ( TR A N S FEREE UNDE R TA K ING ), THE D E D U CT I ON I S AVAIL A BLE T O SUC H TRANSFE R EE UN DE RT A KING FOR THE R E MAI NI NG P E R I OD IN T HE TEN C O NSE CUT I VE YEARS. T HE A P PE L LANT HAS B E E N G R A N TE D T H E AP P ROVA L O F THE G O V E R NM EN T O F I N DI A , M I N I S T RY O F I N DU S TRY , D EPARTMENT O F IND UST RIAL P O LI CY & PR OM OT ION TO SET U P A N IN D USTRI A L PA R K I N TERMS OF TH E SCH E ME N O TI F I E D B Y THE M I N I S T RY IN E X E R CISE O F T H E PO W ER S U / S 80 L A O F THE I. T . ACT , 1 96 1 R EAD WIT H RULE L8C OF T H E L . T . R UL E S, 19 62 VI DE LE TT E R N O. 9 ( 10)/99 - IP & I D DA TED 24 .5. 1 9 99 . THE C ENT R A L BOARD OF DIR E C T TAXES , M I N I S T:R Y OF FINANCE , GOV ER NM E N T O F INDI A V IDE NOTI F I C ATI O N DA T ED 20.12 .1 999 I N S . O.N O. 1251(E) H AS NO TI F IED TH E ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 10 ASSESSEE C O MPA N Y AS A N IN D US T RI AL P A RK UND E R CLAUS E (III ) O F S U B SE CT I O N (4) OF SE C TION 80 I A O F TH E F O R TH E P URP O SE O F DEDUCTION U/S 80IA( 1) . T H E I NCOME DE R IVE D BY T H E APPELLANT COMPANY WAS F ROM PR OV I D I N G MODULES C O NSI ST IN G OF BUILT UP SPACE WITH COMMON IN F R AS T R UC T URE FACILITIES LIKE 110/33 KV D E D I C AT ED SUB - STA T I O N F O R PO WER, CENTRALIZED AIR CONDITIONING SYSTEM OF 6000 TR CAPACITY, TELECOMMUNICATION INSTALLATIONS, 100% DG SET BACK-UP, 10.5 MVA CAPACITY ETC. IN THE INDUSTRIAL PARK AND OTHER ANCILLARY SERVICES TO THE USERS. THU S, THE APPELLANT HAS CARRIED OUT REAL, SUBSTANTIAL, SYSTEMATIC AND ORGANIZED ACTIVITY. SINCE THE WORD BUSINESS IS ONE OF WIDE IMPORT AND IN FISCAL STAT UTE, IT MUST BE CONSTRUED IN A BROAD RATHER THAN A RESTRICTED SENSE (MAZGAON DOCK LTD. VS. CIT 34 ITR 368 (SC), IT WOULD NOT BE IMPROPER TO RECOGNIZE THE ACTIVITY OF THE APPELLANT AS A BUSINESS ACTIVIT Y. IN CASE OF THE APPELLANT THE ELIGIBLE BUSINESS IS DEVELOPMENT, DEVELOPMENT & OPERATION OR MAINTENANCE & OPERATION OF AN INDUSTRIAL PARK. T HE B U S I N E SS OF I NDUS T R I AL PA R K O F THE A P P E L L A N T, T ID EL P ARK LTD, I S N OT S IM I LA R T O T H A T OF A N I NDUS TR I AL UN DERTAKING WHI C H PR ODUCES ARTICLES OR T H ING S WH I CH CAN BE SO L D IN T HE MA R K E T A N D P R OFIT C A N B E EA R NED THERE FR O M . T H E C O R E B US I NES S O F THE AP P EL LAN T IS TO LET O UT ALLOCABLE BUILT - UP S P A C E A L O N G WIT H I N FRAS T R UC T U R A L FAC I L I T IE S AN D D E VE L O P , D EVELO P & OPERA T E O R M A IN T AI N & O P E R A TE A N IN D US TR I A L PA R K. THE REF ORE , THE I N C O ME EA RN E D F R OM SUC H E L I GI B L E B U SI NE S S I N T H E F O R M O F LE ASE RE NT I S E L I GIB L E FOR DED U C TI O N U /S 8 0 I A ( 4 )( I I I ) . F U RTH E R , T H E D EC I S I ON S REL I E D ON B Y T HE AO ARE N O T D I R E CT L Y O N TH E ISS U E AN D H A V E BE E N RE N DERE D U N D E R D IFF E R ENT FACT S ITU A T I O NS I N T HE S EN S E T HA T IN TH OSE CA S E S , IT WA S L E T TIN G O U T O F PRO PER T Y S IMPL I CITO R AN D EX P LO I T A T I O N O F O W N ERS H I P OF PRO P ERT Y . T H E OWNE R S OF T HE PR O PER T I ES W ERE N OT E X E M P T ED UN D E R A N Y P RO V ISION OF T H E AC T , WHEREAS T I OE L P ARK L T D IS EX EM PT ED U / S B(1) \ VI D E CBOT N OT I FICA T ION DA T ED 2 0. 1 2 . 19 99 . HE N CE , THE RAT I O OF T H OSE DE C ISIONS ARE NO T APP L ICABLE TO T HE A PPE L L ANT . A S PE R THE T E R M S O F A PP R O V A L G RANT ED B Y THE A BOVE NOTIF I CA TI ON, N O TIF Y I N G T H E A P P E L L A NT A S AN I N D US TR IA L PA R K FOR THE PUR POSE OF S ECT I ON 80 L A O F T H E ACT , I T IS C L EA R T H A T T H E AP PE LL A N T C A N PR O V I DE B UIL T - UP S P A CE FOR ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 11 I N DU S T R I A L U SE W HI C H ME A NS TH E AP P E L L ANT C A N L EA S E THE B UIL T- U P S P A C E FOR INDUSTRIAL USE WHICH MEANS THE APPELLANT CAN LEASE THE BUILT-UP SPACE IN THE INDUSTRIAL PARK DEVELOPED, MAINTAINED AND OPERATED BY IT. FURTHER, IT IS NOTICED THAT THE LEASE RENT COLLECTED FROM THE LESSEES IS FOR LAND, BUILDING AN D PLANT & MACHINERY AND OTHER BUILT IN INFRASTRUCTURA L FACILITIES IN THE MODULES LEASED OUT. IN OTHER WORD S, IT IS A COMPOSITE LEASE RENT. S I NCE THE AP PEL L A N T H A S D EVE L OPED I N D U S T R I AL PA R K FOR INFORMATION TE C H NO LO G Y/ S OFTWA R E TE C H N O L OGY A N D S I N C E TH E I NDUST R IAL PARK WAS NOT I FIED BY THE CE NT RAL GOVE R NME N T U N D E R CL AU SE (II I) O F SU B - SE C T I ON (4) O F SECTION 801A , W H I CH I S A N EL I GI B L E B U SI N E S S F O R TH E PURP O SE OF SECT I ON 8 0 L A ( 1) , I A M O F THE CO N S I DERE D O P I N I ON T HA T TH E LE A SE REN T REC E I V ED F RO M PR OV I D IN G BU I LT-U P SPA C E ( MODULE) F O R IN D U ST R IA L U SE TO V A RI O US L E S SE ES IS IN CO ME F ROM BUSI N ESS E LIGI B LE F O R DE D U C T IO N U /S 8 0 1A OF THE ACT. A CC O RDI NG L Y , I DIRE C T T HE A S S E S S ING O FFI C E R T O ASS E SS T H E L EASE RENT INC O M E O F T HE I ND U ST RI A L P A R K UN DER THE HE A D 'P R OFI T S A N D G AI NS OF BU S I NESS OR P R O F E S SI O N' A N D A L L OW DE D U C T I O N U/ S 80LA FO R SU CH P R OF I T S . 10. WE ALSO FIND THAT AN IDENTICAL ISSUE CAME UP BE FORE THE HONBLE JURISIDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ELNET TECHNOLOGIES LTD. IN TAX CASE APPEAL NOS.391 & 392 OF 2007, WHEREIN THE HIGH COURT FOLLOWING ITS EARLIER ORDER IN TCA NOS.2336 AND 2623 OF 2006 AND 2169 OF 2008 DATED 9.10.2012 HELD THAT THE INCOME RECEIVED FROM LEASIN G OUT OF THE PROPERTY WITH ALL AMENITIES AND FACILITIES WOUL D BE ONLY INCOME FROM BUSINESS AND NOT TO BE ASSESSED EITHER AS INCOME FROM HOUSE PROPERTY OR AS INCOME FROM OTH ER ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 12 SOURCES. RESPECTFULLY FOLLOWING THE SAID DECISION , WE UPHOLD THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) IN HOLDING THAT LEASE RENT INCOME FROM MODULES/ BUILT- UP SPACE OF THE INDUSTRIAL PARK IS ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS AND SUCH INCOME IS ELIGIBLE FOR DEDU CTION UNDER SECTION 80IA OF THE ACT. 11. FURTHER, THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF ACIT VS. TICEL BIO PARK LTD. (SUPRA) AFFIR MING THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) H ELD THAT RENTAL INCOME, OPERATION AND MAINTENANCE INCOME, A/ C. CHARGES, ELECTRICITY CHARGES ARE ELIGIBLE FOR DEDU CTION UNDER SECTION 80IA(4) OF THE ACT. 12. FOLLOWING THE DECISION OF THE HONBLE MADRAS H IGH COURT IN THE CASE OF ELNET TECHNOLGIES PVT.LTD (SUP RA) AND THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF TICEL BIO PARK LTD. (SUPRA), WE HOLD THAT EXCEP T THE INTEREST INCOME OF ` 7,74,19,358/- AND OTHER INCOME OF ` 21,29,999/- REST OF THE INCOMES ARE ASSESSABLE UNDER THE HEAD INCOME FROM BUSINESS FOR THE PURPOSE OF COMPUTING DEDUCTI ON UNDER ITA NOS. 2104, 2122/MDS//2011 & C.O.NO.18/MDS/2012 13 SECTION 80IA(4) OF THE ACT. THEREFORE, WE DIRECT T HE ASSESSING OFFICER TO TREAT INTEREST INCOME AND OTHER INCOME O NLY UNDER THE HEAD INCOME FROM OTHER SOURCES AND ALLOW DEDU CTION UNDER SECTION 80IA ON REST OF THE INCOMES I.E. RENT FROM PREMISES, OPERATION AND MAINTENANCE INCOME, REVENUE SHARING INCOME, COMMON FACILITIES SUCH AS RENT FROM AUDITORIUM AND RENT FROM OTHERS. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. THE CROSS OBJECTION FILED BY THE ASSESSEE IN SUPPORT OF THE I MPUGNED ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) I S ALSO DISPOSED OFF ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY, THE 27 TH DAY OF SEPTEMBER, 2013 AT CHENNAI. SD/- SD/- (ABRAHAM P.GEORGE ) (CHALLA NA GENDRA PRASAD) ACCOUNTANT MEMBER J UDICIAL MEMBER CHENNAI, DATED THE 27 TH SEPTEMBER, 2013. SOMU COPY TO: (1) ASSESSEE (4) CIT(A) (2) ASSESSING OFFICER (5) D.R. (3) CIT (6 ) G.F.