DCIT, Shimla V. Raghunath Singh Thakur, Shimla

ITA 380/CHANDI/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8481 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-02-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: SUBHASH AGGARWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NOS.380 & 381/CHD/2015 (ASSESSMENT YEARS : 2010-11 & 2011-12) THE D.C.I.T. , VS. SH.RAGHUNATH SINGH THAKUR, CIRCLE SHIMLA. HOTEL MARINA, SHIMLA. SHIMLA (H.P.) PAN: ABOPT5057F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANJIT SINGH, DR RESPONDENT BY : SHRI SUBHASH AGGARWAL DATE OF HEARING : 18.02.2016 DATE OF PRONOUNCEMENT : .02.2016 O R D E R PER RANO JAIN, A.M . : BOTH THESE APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), SHIMLA DATED 28.1.2015 FOR ASSESSMENT YEARS 2010-11 AND 2011-12. 2. THE ONLY ISSUE IN BOTH THESE APPEALS FILED BY T HE REVENUE IS WITH REGARD TO CLAIM OF ASSESSEE UNDER S ECTION 80IC OF THE ACT (IN SHORT THE ACT) ON ECO-TOURISM PROJECT. AT THE OUTSET, IT WAS SUBMITTED BY THE LEARNED COUN SEL FOR THE ASSESSEE THAT SIMILAR ISSUE AROSE IN ASSESSEES OWN CASE IN EARLIER YEARS, VIZ. ASSESSMENT YEARS 2006-0 7, 2 2007-08 AND 2008-09. IN ALL THESE YEARS, THE CLAIM OF THE ASSESSEE WAS ALLOWED BY THE HON'BLE I.T.A.T., CHAND IGARH BENCH IN ITA NOS.152 & 469/CHD/2010 AND ITA NO.1144/CHD/2010 DATED 22.6.2012. THIS FACT WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER ALSO , DURING THE COURSE OF ASSESSMENT PROCEEDINGS, HOWEVER, THE ASSESSING OFFICER REJECTED THIS CONTENTION OF THE A SSESSEE STATING THAT THE DEPARTMENT HAS FILED AN APPEAL AGA INST THE SAID ORDER OF THE I.T.A.T., BEFORE THE HON'BLE HIGH COURT. IN FACT, THE CIT (APPEALS), IN THE PRESENT CASE, HAS ALLOWED THE APPEAL OF THE ASSESSEE, ON THE BASIS OF THE ORDERS OF THE I.T.A.T. ONLY. 3. THE LEARNED D.R., THOUGH DID NOT CONTROVERT THE FACTUAL MATRIX AS STATED BY THE LEARNED COUNSEL FOR THE ASSESSEE, HOWEVER, HE STATED THAT THE ISSUES ARE PE NDING BEFORE THE HIGH COURT, AS THE DEPARTMENT HAS FILED APPEALS AGAINST THE SAID ORDERS OF THE I.T.A.T. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. THE ONLY ISSUE IN THIS CASE IS WHETHER THE ASSESSEE IS ELIGIBLE TO GET DEDUCTION UNDER SECTION 80IC OF THE ACT AS IT CLAIMS TO BE IN THE BUSINESS OF ACTIVITY OF ECO- TOURISM. THE LEARNED CIT (APPEALS) IN ASSESSMENT YEAR 2011-1 2, HAS RECORDED HER FINDINGS AT PAGE 17, PARA 5.4, WHI CH READS AS UNDER : 3 THUS, BOTH THESE ISSUES STAND DECIDED BY ITAT IN T HE APPELLANT'S OWN CASE CHANDIGARH BENCH ! B', CHANDIGARH FOR THE A.Y.2006-07, 2007-08 & 2008-09 WHEREIN THE APPE ALS OF THE REVENUE FOR A.Y. 2006-07 & 2007-08 WERE DISMISSE D AND APPEAL OF ASSESSEE FOR A.Y. 2008-09 WAS ALLOWED VID E ORDER DATED 22 ND JUNE, 2012 DECIDING THE ISSUES IN FAVOUR OF ASSESSEE. FOR A.Y. 2009-10 APPEAL OF THE ASSESSEE HA S BEEN ALLOWED BY MY PREDECESSOR VIDE APPEAL NO.IT/417/201 1- 12/SML DATED 10.09.2012 BASE ON THE ABOVE MENTIONED DECISION OF I.T.A.T., CHANDIGARH. RELEVANT EXTRACTS OF I .T.A.T. ORDER ARE REPRODUCED AS UNDER : 33. NOW COMING TO THE OBSERVATIONS OF THE CIT (APPEALS) IN THE APPEAL RELATING TO ASSESSMENT YEAR 2008-09 VIS-A-VIS THE DEFINITION OF ECO-TOURISM ARE NOT CORRECT IN VIEW OF THE POLICY OF HIMACHAL PRADESH APPLICABLE TO THE STATE OF HIMACHAL PRADESH FOR THE PROMOTION OF ECO-TOURISM. THE UNDERLYING CONCEPT IS TO PROVIDE INFRASTRUCTURE FOR THE PROMOTION OF TOURISM AND IN ORDER TO PROMOTE THE SAME, THE DEPARTMENT OF TOURISM IN THE STATE OF HIMACHAL PRADESH HAD FRAMED POLICY, UNDER WHICH RECOGNITION IS GIVEN SUBJECT TO FULFILLMENT O F CONDITIONS. THE ASSESSEE HAD MADE AN APPLICATION TO THE DEPARTMENT OF TOURISM FOR ITS RECOGNITION AS ECO-TOURISM UNDERTAKING OR ENTERPRISES. THE ASSESSEE ADMITTEDLY HAD FULFILLED THE ABOVE SAID CONDITIONS AND ALSO RECEIVED NO OBJECTION CERTIFICATE FROM POLLUTION CONTROL BOARD FOR FULFILLING THEIR CONDITIONS AND NORMS. IN VIEW THEREOF, WHERE THE ASSESSEE HAD FULFILLED THE CONDITIONS OF THE STATUTE, IS TO BE HELD ELIGIBLE F OR THE BENEFIT OF DEDUCTION UNDER SECTION 80IC OF THE ACT. THE ABOVE SAID BENEFIT IS BY WAY OF SPECIAL PROVISION, PROVIDED UNDER THE ACT AND ONCE THE ASSESSEE HAS FULFILLED THE CONDITIONS LAID DOWN UNDER THE SAID SECTION, THE SAID DEDUCTION IS TO BE ALLOWED TO THE ASSESSEE. THE CIT (APPEALS) IN THE 4 APPEAL RELATING TO ASSESSMENT YEAR 2008-09 HAD OBSERVED THAT THE ASSESSEE WAS NOT ENTITLED TO THE BENEFIT OF DEDUCTION UNDER SECTION 80IC OF THE ACT IN VIEW OF THE CERTIFICATE ISSUED BY THE POLLUTION CONTROL BOARD WHICH TALKS OF ITS VALIDITY UP TO 31.3.2004 I.E. EVEN BEFORE THE DATE OF EXPANSION CARRIED ON BY THE ASSESSEE. WE FIND THAT WHILE COMING TO THE SAID CONCLUSION THE CIT (APPEALS) HAS ERRED AS THERE ARE TWO CERTIFICATES ISSUED BY THE POLLUTION CONTROL BOARD. THE FIRST CERTIFICATE IS DATED 3.1.2004 AND VALIDITY OF THE SAID CERTIFICATE IS UP TO 31.3.2004. THE SECOND CERTIFICATE IS DATED 9.6.2004 AND IT IS IN FORCE FO R A PERIOD UP TO 31.3.2009. BOTH THE CERTIFICATES ARE FILED ON RECORD. NOTHING HAS BEEN BROUGHT ON RECORD BY THE REVENUE TO ESTABLISH THAT THE SAID CERTIFICATE DATED 9.6.2004 HAS BEEN WITHDRAWN BY THE POLLUTION CONTROL BOARD. IN VIEW OF THE CONFUSION IN THE OBSERVATION OF THE CIT (APPEALS), WE FIND NO MERIT IN THE ORDER OF THE CIT (APPEALS) IN NOT ALLOWING DEDUCTION CLAIMED UNDER SECTION 80IC OF THE ACT RELATING TO ASSESSMENT YEAR 2008- 09. IN VIEW OF THE CERTIFICATE ISSUED BY THE DEPARTMENT OF TOURISM AND NO OBJECTION CERTIFICATE DATED 9.6.2004 ISSUED BY THE POLLUTION CONTROL BOARD AND ALSO THE ASSESSEE HAVING FULFILLED THE CONDITIONS OF SUBSTANTIAL EXPANSION AND THE MEANING OF THE WORD ECO-TOURISM INCLUDING HOTEL UNDER ITEM 15 IN PART-C OF FOURTEEN SCHEDULE OF THE ACT, THE SPECIAL PROVISIONS PROVIDED BY THE STATUTE FOR THE PROMOTION OF TOURISM IN THE STATE OF HIMACHAL PRADESH, ENTITLES THE ASSESSEE TO THE CLAIM OF DEDUCTION UNDER SECTION 80IC OF THE ACT. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO ALLOW THE CLAIM OF DEDUCTION UNDER SECTION 80IC OF THE ACT TO THE ASSESSEE RELATING TO ASSESSMENT YEAR S 2006-07, 2007-08 AND 2008-09. 5 KEEPING IN VIEW ABOVE FACTS AND CIRCUMSTANCES AND JUDICIAL PRONOUNCEMENTS FOR MAINTENANCE OF JUDICIAL CONSISTENCY, THE APPEALS OF THE ASSESSEE FOR THE YE ARS UNDER CONSIDERATION ARE ALLOWED. 5. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF TH E LEARNED CIT (APPEALS), AS SHE WAS RIGHT IN FOLLOWIN G HE ORDER OF THE I.T.A.T., CHANDIGARH BENCH IN ASSESSEE S OWN CASE IN THE EARLIER YEARS. SINCE NO DISTINGUISHING FACTS WERE BROUGHT TO OUR NOTICE DURING THE COURSE OF HEA RING, RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINATE BENCH, WE DISMISS THE APPEAL OF THE REVENUE. 6. SINCE THE ISSUES ARE COMMON IN BOTH THE APPEALS, IN THE RESULT, BOTH THE DEPARTMENTAL APPEA LS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 19 TH DAY OF FEBRUARY, 2016. SD/- SD/- (H.L.KARWA) (RANO JAIN) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 19 TH FEBRUARY, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 6