M/s. Celebi Delhi Cargo Terminal Management India Pvt. Ltd., New Delhi V. Pr. CIT- 2, New Delhi

ITA 3376/DEL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3735 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 29-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Keywords: Gift; Depreciation; Search and seizure; Opportunity of being heard; Principle of natural justice; Additional depreciation; Question of law; Assessment record; Reason to believe; Revenue expenditure; Reassessment proceedings; Capital expenditure; TDS
• Section: 143(3); 142(1); 5(2); 115JB; 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI B BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA ACCOUNTANT MEMBER , AND S MT BEENA A. PILLAI, JUDICIAL MEMBER ITA NO. 3376 / DEL/201 7 [ASSESSMENT YEAR: 20 1 2 - 1 3 ] M/S CELEBI DELHI CARGO MANAGEMENT VS. THE PR .C.I.T - 2 INDIA PVT. LTD NEW DELHI R . NO. CE - 05 , FIRST FLOOR, IMPORT BUILDING II, INTERNATIONAL CARGO TERMINAL , IGI AIRPORT, NEW DELHI PAN : AADCC 6885 B [APPELLANT] [RESPONDENT] DATE OF HEARING : 13 .0 2 .201 9 DATE OF PRONOUNCEMENT : 1 8 . 0 2 .201 9 ASSESSEE BY : SHRI RONAK DOSHI, CA REVENUE BY : MS. NIDHI SRIVASTAVA , CIT - DR ORDER PER N.K. BILLAIYA , ACCOUNTANT MEMBER, WITH T HIS APPEAL , THE ASSESSEE HAS CHALLENGED THE CORRECTNESS OF THE ORDER OF THE LD. PR. CIT, NEW DELHI 2 DATED 31 .0 3 .201 7 PERTAINING TO ASSESSMENT YEAR 20 11 - 12 . 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS THAT THE PCIT ERRED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] BY HOLDING THAT THE ASSESSEE FAILED TO PLACE ON RECORD , DURING THE ASSE SSMENT PROCEEDINGS , ANY SUCH DOCUMENTARY EVIDENCE OF SUBSTANTIVE NATURE , TO JUSTIFY THE DEDUCTION U/S 80IA OF THE ACT. 3. THE REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH, THE CASE RECORDS CAREFULLY PERUSED AND WITH THE ASSISTANCE OF THE LD. COU NSEL, WE HAVE CONSIDERED THE DOCUMENTARY EVIDENCES BROUGHT ON RECORD IN THE FORM OF PAPER BOOK IN LIGHT OF RULE 18(6) OF ITAT RULES. JUDICIAL DECISIONS RELIED UPON WERE CAREFULLY PERUSED. 4. THE LD. REPRESENTATIVES, IN ADDITION TO THEIR ORAL ARGUMENTS, PLACED WRITTEN SYNOPSIS FOR OUR CONSIDERATION. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW AND GONE THROUGH THE WRITTEN SYNOPSIS PLACED ON RECORD BY BOTH THE SIDES. 3 6. FACTS ON RECO RD SHOW THAT THE APPELLANT COMPANY HAS BEEN SET UP WITH THE PRIMARY OBJECTIVE OF UNDERTAKING UPGRADATION, MODERNIZATION, FINANCING, OPERATION, MAINTENANCE AND MANAGEMENT OF CARGO TERMINAL. THE APPELLANT COMPANY ENTERED INTO CONCESSIONAIRE AGREEMENT WITH DE LHI INTERNATIONAL AIRPORT PRIVATE LIMITED (DIAL) WHICH GIVES RIGHT TO OPERATE, MAINTAIN, DEVELOP, MODERNIZE AND MANAGE THE C ARGO TERMINAL FOR THE PERIOD TILL MARCH 2034. 7 . THE RETURN WAS ELECTRONICALLY FILED ON 30 .11. 201 2 AFTER AVAILING THE DEDUCTION U/S 80IA . HOWEVER, T AX WAS PAID ON BOOK PROFITS. THEREAFTER, THE CASE WAS SELECTED FOR SCRUTINY AND , ACCORDINGLY, STATUTORY NOTICE S WERE ISSUED AND SERVED UPON THE ASSESSEE. ASSESSMENT ORDER WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DATED 05 . 12 . 2014. 8 . SUBSEQUENTLY, THE ASSESSEE RECEIVED A NOTICE DATED 07 .03. 2016 FOR REVISION ARY PROCEEDINGS TO BE INITIATED U/S 263 OF THE ACT BY THE PRINCIPAL COMMISSIONER OF INCOME - TAX - 2 . THE SHOW CAUSE NOTICE READS AS UNDER: 4 THE PRINCIPAL OFFICER, M/S CELCBI DELHI CARGO TERMINAL MANAGEMENT INDIA PVT. LTD., ROOM NO. 23, IMPORT BUILDING - 3, INTERNATIONAL CARGO TERMINAL, IGI AIRPORT, NEW DELHI - II0037 SIR, SUB.: SHOW CAUSE NOTICE FOR PROCEEDINGS U/S 263 OF THE I.T ACT, 1961 FOR THE A.Y. 2012 - 13 REG. - I DRAW YOUR KIND ATTENTION TO THE ASSESSMENT PROCEEDING U/S 143(3) OF THE I.T. ACT, 1961 FOR THE A.Y. 2012 - 13 - DATED 05.12.2014 OF M/S CELEBI DELHI CARGO TERMINAL MANAGEMENT INDIA PVT. LTD. THE ASSESSMENT ORDER U/S 143(3) DATED 05.12,2014 WAS FRAMED BY DCIT CIRCLE 5(2), NEW DELHI WHEREIN THE A.O. REFERRED TO THE INCOME DECLARED IN THE RETURN FILED DIGITALLY ON 30.11.2012 DECLARING A INCOME OF RS, 1,43,69,780/ - AND THE DEDUCTION CLAIMED U/S 80IA STOOD AT RS. 15,48,63,614/ - IN PARA 3 OF THE ASSESSMENT ORDER THE A.O. HAS SPECIFIED AS UN DER: - 'THE ASSESSES COMPANY IS ENGAGED IN THE BUSINESS OF INFR ASTRUCTURE FACILITIES PROVIDER. THE A.O. HAD FAILED TO DISCUSS THE NATURE OF ACTUAL BUSINESS ACTIVITIES CONDUCTED BY THE COMPANY DURING THE FINANCIAL YEAR 2011 - 12. THE RETURN INCOME OF RS. I, 43, 69,780/ - WAS ACCEPTED AS THE INCOME OF THE COMPANY FOR THE YEAR, 5 THE DISALLOWANCE M ADE WAS F OR A SUM OF RS. 2,07, 83,557/ - BEING AN AMOUNT NOT ADDED BACK BY THE COMPANY FOR THE PURPOSE OF SECTION 115JB OF THE J.T.AET. THE A.O. ALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 801A AT RS. 15.49 CRORES WITHOUT PROPER EXAMINATIONS OF THE FACTS OF THE INCOME GENERATED BY THE COMPANY AND THE ADMISSIBILITY OF DEDUCTION U/S 801A AGAINST THE INCOME G ENERATED FROM OCCUPATION AND OR MAINTENANCE OF CARGO TERMINAL. THE ASSESSEE IN HIS LETTER DATED 114 - FILE ID 277 HAS PLACED ON ASSESSMENT RECORD THE FOLLOWI NG FACTS: - 'COMPANY IS RESPONSIBLE TO UPGRADE, MODERNIZE AND FINANCE THE CARGO TERMINAL AND OPERATES, MAINTAIN AND MANAGE THE CARGO TERMINAL (APPROXIMATELY 77,000 SQ.MT AREA COMPRISING OF WAREHOUSES FOR HANDLING EXPORT, IMPORT AND PERISHABLE CARGO) FOR A PERIOD OF 25 YEARS UNTIL 31 MARCH 2034'. THE ABOVE CITATION REVEALS THAT THE COMPANY WAS OPERATING AS A CONTRACTOR FOR ITS PRINCIPAL AND HAS NOT UNDERTAKEN ANY SUCH ACTIVITIES WITHIN THE AMBIT OF SECTION 80IA. THIS OFFICE IN RECEIPT OF A REPORT U/S 263 OF THE I.T.ACT, 1961 DATED 03.03.2016 ON THE ABOVE ISSUE. THE ASSESSMENT FRAMED U/S 143(3) BEING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE HENCE TO BE REVIEWED IN ACCORDANCE WITH PROVISION OF SECTION 26 3 OF THE I.T. ACT, 1961. 6 IN ACCORDANCE WITH THE SECTION 263 OF THE INCOME TAX ACT, 1961, I HEREBY REQUIRE YOU TO APPEAR BEFORE THE UNDERSIGNED IN ROOM NO. 394, 3 R