DCIT, Shimla V. Sh. Raghunath Singh Thakur, Shimla

ITA 416/CHANDI/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6566 (ITAT-CHANDIGARH)
• Duration Of Justice: 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 03-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SIGH
• Assessee Lawyers: SUBHASH AGGARWAL
• Keywords: Question of law
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH B, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.416/CHD/2017 (ASSESSMENT YEAR : 2013-14) THE D.C.I.T., VS. SH.RAGHUNATH SINGH THAKUR, CIRCLE SHIMLA. PROP HOTEL COMBERMERE, THE MALL, SHIMLA. PAN: ABOPT5057F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANJIT SIGH, SR.DR RESPONDENT BY : SHRI SUBHASH AGGARWAL, ADV. DATE OF HEARING : 11.12.2017 DATE OF PRONOUNCEMENT : 14.12.2017 ORDER PER ANNAPURNA GUPTA, A.M.: THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS ), SHIMLA [HEREINAFTER REFERRED TO AS CIT(APPEALS)] DATED 27.12.2016 RELATING TO ASSESSMENT YEAR 2012-13. 2. THE ONLY ISSUE IN THE PRESENT APPEAL RELATES TO DEDUCTION CLAIMED UNDER SECTION 80 IC OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) ON THE PROFITS EARNED FROM THE RUNNING OF HOTEL, TREATING THE SAME TO BE IN RELATI ON TO A PROJECT OF ECO-TOURISM WITHIN THE MEANING OF ITEM N O. 15 IN SCHEDULE XIV OF THE ACT ,WHICH IS A LIST OF ELIGIBL E ARTICLES OR THINGS TO BE MANUFACTURED OR PRODUCED, FOR THE PURP OSE OF CLAIMING DEDUCTION UNDER THE SAID SECTION. 2 3. THE FACTS RELATING TO THE CASE ARE THAT, THE ASS ESSEE RUNS A HOTEL KNOWN AS HOTEL COMBERMERE AT SHIMLA. IN A.Y. 2005-06 THE ASSESSEE UNDERTOOK SUBSTANTIAL EXP ANSION BY MAKING INVESTMENTS IN PLANT AND MACHINERY WITHIN THE MEANING OF SECTION 80 IC. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO JUSTIFY HIS CLAIM OF DEDUCTION U/S 80 IC AND AFTER CONSIDERING THE ASSES SEES SUBMISSIONS THE A.O. DENIED THE CLAIM HOLDING THAT THE HOTEL OF THE ASSESSEE DID NOT QUALIFY AS AN ECO- TO URISM PROJECT WITHIN THE MEANING OF ITEM NO. 15 IN SCHEDU LE XIV OF THE INCOME TAX ACT AND THAT IT WAS FUNCTIONING AS A STAND ALONE HOTEL IN THE MOST URBANIZED BUSINESS LOCATION IN THE CITY. ACCORDINGLY, DEDUCTION CLAIMED BY THE ASSESSE E AMOUNTING RS.2,44,29,380/- UNDER SECTION 80 I.C WAS DISALLOWED. 4. THE MATTER WAS CARRIED IN APPEAL BEFORE THE CIT(APPEALS), WHO ALLOWED THE ASSESSEES APPEAL FOLL OWING THE DECISION OF THE ITAT IN THE CASE OF THE ASSESSE E IN PRECEDING YEARS I.E. ASSESSMENT YEARS 2006-07 TO 20 11-12. 5. AGGRIEVED BY THE SAME THE REVENUE HAS COME UP IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE PROFIT DERIVED FROM THE HOTEL RUN BY THE ASSESSEE ARE ELIGIBLE FOR DEDUCTION U/S 80IC AMOUNTING TO RS. 44,29,380/- AS THE DEFINITION OF ECO- TOURISM, INCLUDING HOTELS AS GIVEN IN SCHEDULE XIV AND THE CONCEPT OF ECO-TOURISM 3 DO NOT JUSTIFY THE CLAIM OF THE ASSESSEE FOR CLAIMING DEDUCTION U/S 80IC. 2. THE LD. CIT(A) HAS ERRED IN CONCLUDING THAT THE HOTEL RUN BY THE ASSESSEE QUALIFIES TO BE AN ECO-TOURISM PROJECT, AND HENCE COVERED UNDER ITEM 15 OF SCHEDULE XIV OF THE INCOME TAX ACT, 1961. 3. THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE HOTEL RUN BY THE ASSESSEE QUALIFIES TO BE AN ECO-TOURISM PROJECT MERELY ON THE BASIS OF NO OBJECTION CERTIFICATE ISSUED BY THE H.P. STATE ENVIRONMENT PROTECTION AND POLLUTION CONTROL BOARD IS NOT ENOUGH TO MAKE THE ASSESSEES HOTEL AN ECO-TOURISM PROJECT UNDER THE WELL DOCUMENTED POLICY OF STATE OF HIMACHAL PRADESH ON ECO-TOURISM EVEN THOUGH THE NAME OF THE ASSESSEE DOES NOT FIGURE IN THE LIST APPROVED ECO-TOURISM PROJECTS OF THE GOVT. OF H.P. 4. IT IS PRAYED THAT THE ORDER OF THE LD CIT(A) BE SET-ASIDE AND THAT OF THE A.O. RESTORED. 5. THE APPELLANT CRAVED LEAVE TO ADD ANY OTHER GROUND OF APPEAL WHICH MAY ARISE AT THE TIME OF HEARING. 6. BEFORE US, AT THE OUTSET ITSELF, LD. DR POINTED OUT THAT IDENTICAL ISSUE HAD BEEN ADJUDICATED BY THE HONBLE UTTRAKHAND HIGH COURT IN THE CASE OF AANCHAL HOTELS (2016) 287 CTR 233, WHEREIN THE HONBLE HIGH COURT HAD LAI D DOWN PARAMETERS FOR DETERMINING WHETHER THE HOTEL ACTIVI TY QUALIFIED AS ECO TOURISM PROJECT AND REJECTED THE B ASIS OF HOLDING IT SO MERELY ON THE BASIS OF N.O.C ISSUED B Y POLLUTION CONTROL BOARD. IT WAS POINTED OUT THAT TH E HONBLE HIGH COURT, THEREAFTER HAD RESTORED THE MATTER BACK TO THE A.O. TO RECONSIDER IT AFRESH IN THE LIGHT OF PARAME TERS LAID DOWN BY IT. LD. D.R STATED THAT SINCE IN THE PRESEN T CASE ALSO THE ITAT HAD HELD THE HOTEL OF THE ASSESSEE TO QUALIFY AS AN ECO TOURISM PROJECT ON THE BASIS OF N.O.C ISS UED BY 4 THE POLLUTION CONTROL BOARD, THE MATTER SHOULD BE R ESTORED BACK TO BE ADJUDICATED ON THE BASIS OF PARAMETERS LAID DOWN BY THE UTTRAKHAND HIGH COURT. 7. LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAND VEHEMENTLY OBJECTED TO THE SAME POINTING OUT THAT T HE CHANDIGARH BENCH OF I.T.A.T HAD FOLLOWED THE DECISI ON LAID DOWN BY IT IN CASE OF ASSESSEE AFTER CONSIDERING AN D DISTINGUISHING THE DECISION OF THE UTTRAKHAND HIGH COURT IN THE CASE AANCHAL HOTEL (SUPRA), IN ITS ORDER PASSED IN THE CASE OF I.T.O V/S ASIA HEALTH RESORT IN I.T.A NO. 2 97 & 1211/CH/2016 DATED 23/03/2017. COPY OF THE ORDER WA S PLACED BEFORE US. LD. COUNSEL FOR THE ASSESSEE THER EFORE CONTENDED THAT THE CIT(A) HAD RIGHTLY ALLOWED THE A SSESSEES CLAIM OF DEDUCTION UNDER SECTION 80 I.C. FOLLOWING THE DECISION OF THE TRIBUNAL IN THE CASE OF ASSESSEE IN PRECEDING YEARS. 8. WE HAVE HEARD THE CONTENTION OF BOTH THE PARTIES AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW A ND ALSO THE ORDERS REFERRED TO BEFORE US. ON GOING THROUGH ORDER OF I.T.A.T. IN THE CASE OF THE ASSESSEE FOR PRECEDING YEARS WE FIND THAT THE ASSESSEE WAS HELD ELIGIBLE FOR DEDUCT ION UNDER SECTION 80 I.C. AND ITS ACTIVITY OF RUNNING HOTEL W AS HELD TO QUALIFY AS ECO TOURISM PROJECT SOLELY ON THE BASIS OF THE CERTIFICATE ISSUED BY THE MINISTRY OF TOURISM TO TH E ASSESSEE AND THE CERTIFICATE ISSUED BY THE HIMACHAL PRADESH STATE ENVIRONMENT PROTECTION AND POLLUTION CONTROL BOARD. 5 9. COMING TO THE DECISION OF THE UTTRAKHAND HIGH CO URT IN THE CASE OF AANCHAL HOTELS (SUPRA) WE FIND THAT THE HONBLE HIGH COURT HAD CATEGORICALLY REJECTED THIS BASIS OF HOLDING THE HOTEL AS AN ECO TOURISM PROJECT AND HAD FURTHER LAID DOWN PARAMETERS AND HAD STATED THAT ONLY HOTEL S WHICH ARE RUN AS PART OF ECO TOURISM ACTIVITY WOULD QUALI FY SO. THE HONBLE HIGH COURT FURTHER MENTIONED CERTAIN PARAME TERS FOR DETERMINING THE SAME WHICH INCLUDED THAT THE HO TEL SHOULD ANSWER THE DESCRIPTION OF A NATURE FRIENDLY, ECO- FRIENDLY HOTEL BOTH IN TERMS OF SITE OF LOCATION, A ND ALSO FOR THE MANNER, IN WHICH THE HOTEL BUSINESS IS CARRIED OUT, WHICH COULD BE DETERMINED BY EXAMINING WHETHER IN T HE CONTEXT OF ITS BUSINESS, IT CAUSED NO HARM OR THE L EAST HARM TO ITS SURROUNDINGS; WHETHER IT PROVIDED EMPLOYMENT TO THE LOCAL POPULATION; WHETHER IT DEVELOPED LOCAL CULTUR E AND ARTS; THAT IT CAUSED THE LEAST IMPACT ON ENVIRONMEN T; WHETHER IT RESORTED TO RECYCLING; WHAT STEPS IT TOO K TOWARDS THE ENERGY EFFICIENCY AND WATER CONSERVATION; DID I T ENHANCE THE CULTURAL AND ECONOMIC SET UP AND INTEGRITY OF L OCAL PEOPLE; DOES IT PROMOTE SUSTAINABLE USE OF BIODIVER SITY AND CONSERVATION OF CULTURAL DIVERSITY. THE RELEVANT FI NDING OF THE HONBLE HIGH COURT IN THE CASE OF AANCHAL HOTEL AT PARA 29 TO 34 OF THE ORDER IS AS UNDER. IN THIS CONTEXT, WE MUST EXAMINE THE IDEAS OF ECOTOURISM AS IT IS UNDERSTOOD. WE HAVE ALREADY ADVERTED TO THE GOVERNMENT OF INDIAS UNDERSTANDING OF ECOTOURISM IN RELATION TO THE PROTECTED AREAS, IN THE JUDGMENT. WE HAVE ALSO REFERRED TO SOME EXTRACTS FROM WIKIPEDIA, WHICH 6 WE DO NOTE, MAY BE FRAUGHT WITH THE DANGER, WHICH HAS BEEN POINTED OUT BY THE HONBLE APEX COURT AND WHICH WE HAVE ALREADY ADVERTED TO. NONETHELESS, WE COULD SAFELY REFER TO THE FOLLOWING AS IT APPEARS TO ACCORD WITH THE UNDERSTANDING OF THE CONCEPT BY THE GOVERNMENT OF INDIA. 29. WE MAY ALSO NOTICE THAT ECOTOURISM, IN FACT, IS DEFINED IN THE GEOGRAPHICAL DICTIONARY OF OXFORD UNIVERSITY PRESS AS DEVELOPMENT AND MANAGEMENT OF TOURISM SUCH THAT THE ENVIRONMENT IS PRESERVED . THE INCOME FROM TOURISM ADDS TO THE INVESTMENT INTO THE LANDSCAPE CONSERVATION. IN MERRIAM WEBSTERS ONLINE DICTIONARY, ECOTOURISM IS DEFINED AS THE PRACTICE OF TOURING NATURAL HABITATS IN A MANNER MEANT TO MINIMIZE ECOLOGICAL IMPACT . WE ALSO NOTICE THAT ASSESSING OFFICER HAS REFERRED TO THE DEFINITION GIVEN BY THE STATE GOVERNMENT IN ITS ECOTOURISM PLANNING, DEVELOPMENT AND MANAGEMENT DOCUMENT, AS ECO TOURISM IS RESPONSIBLE TRAVEL TO NATURAL AREAS THAT CONSERVES THE ENVIRONMENT AND SUSTAINS THE WELL BEING OF LOCAL PEOPLE . 30. WE REMIND OURSELVES THAT A COURT MUST ALWAYS GUARD AGAINST AN INTERPRETATION WHICH WILL RENDER ANY PART OF ANY PROVISION REDUNDANT OR SUPERFLUOUS . IN REGARD TO THE STATES OF UTTARAKHAND AND HIMACHAL PRADESH, WE MUST, THEREFORE, PROCEED ON THE BASIS THAT THE WORD ECOTOURISM, HAS BEEN CAREFULLY AND GUARDEDLY CHOSEN IN CONTRADISTINCTION TO THE WORD TOURISM. QUITE CLEARLY ECOTOURISM CANNOT BE THE SAME AS TOURISM. MAINSTREAM TOURISM IS CERTAINLY A LARGER CONCEPT AND IT WOULD ENCOMPASS WITHIN ITSELF ECOTOURISM. THE USE OF THE WORD ECOTOURISM IN THE CONTEXT OF THE STATES OF HIMACHAL PRADESH AND UTTARAKHAND IS CLEARLY OBJECT DRIVEN AND CONTEXTUALLY APPOSITE FOR THE REASON THAT BOTH THE STATES ARE HILLY STATES AND HAD AND HAVE VAST UNTAPPED POTENTIAL FOR NATURAL AND RESPONSIBLE TOURISM, WHICH CAN BE TREATED AS ECOTOURISM. THE WORD ECO IS DEFINED IN CONCISE OXFORD ENGLISH DICTIONARY AS REPRESENTING ECOLOGY. ECOLOGY, IN TURN, IS DEFINED AS THE BRANCH OF BIOLOGY CONCERNED WITH THE RELATIONS OF ORGANISMS TO ONE ANOTHER AND TO THEIR PHYSICAL SURROUNDINGS. 31. WE MUST NOTICE THAT THE STATE OF UTTARAKHAND IS BROADLY DIVIDABLE INTO THE HILLY AREAS AND THE PLAIN AREAS. CAN IT NOT BE SAID THAT THE INTENTION OF THE LAW GIVER WAS TO PROMOTE ECOTOURISM, AND TOWARDS THAT END, TO ENCOURAGE THE SETTING UP OF HOTELS, SPAS, AMUSEMENT PARKS AND SITES CLOSE TO THE NATURE IN AREAS REFLECTING PRISTINE BEAUTY? COULD IT HAVE BEEN THE INTENTION OF THE LEGISLATURE 7 TO PROVIDE A RIGHT TO A HOTELIER TO CLAIM DEDUCTION BY SETTING UP A HOTEL IN A COMPLETELY URBAN AREA, WHICH IS FAR REMOTE FROM ANY SIGNS OF ECOLOGICAL BEAUTY AND NATURAL SURROUNDINGS, FOR WHICH UTTARAKHAND IS JUSTLY FAMOUS? IN THIS REGARD, WE MUST ADDRESS THE ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT SHRI PULAK RAJ MULLICK, BASED ON THE ABSENCE OF ANY GEOGRAPHICAL RESTRICTIONS IN REGARD TO THE THRUST INDUSTRIES. WE MUST NOTICE THAT IT APPEARS TO US TO BE MORE PROBABLE THAT THE INTENTION WAS TO FREE THE THRUST INDUSTRIES FROM THE GEOGRAPHICAL RESTRICTIONS, WHICH WERE RELEVANT IN REGARD TO THE INDUSTRIAL UNITS, WHICH ARE REFERRED TO IN CLAUSE 3.1.(I). IN REGARD TO THE SAM E, UNDOUBTEDLY, THE GEOGRAPHICAL RESTRICTIONS WERE APPLICABLE. IN REGARD TO THE THRUST INDUSTRIES WHEN IT WAS SAID IN THE OFFICE MEMORANDUM THAT IT WILL BE WITHOUT GEOGRAPHICAL RESTRICTIONS, AND SUBSEQUENTLY SECTION 80-IC WAS INSERTED, NO DOUBT, WITHOUT ANY GEOGRAPHICAL RESTRICTIONS, WE ARE LEFT TO PONDER AND ANSWER THE QUESTION AS TO WHETHER SUCH RESTRICTIONS WOULD NOT INEVITABLY FLOW FROM THE COMPANY THE WORD HOTEL KEEPS AND THE USE OF THE WORD INCLUDING. 32. ONE WAY OF LOOKING, NO DOUBT, IS THAT ANY HOTEL BE IT A FIVE STAR HOTEL, WHICH HARNESSES THE MOST MODERN METHODS, AND WITH LITTLE REGARD FOR THE ENVIRONMENT, BUT BOOSTS TOURISM, WOULD BE ENTITLED TO BENEFIT UNDER SECTION 80-IC. THE OTHER WAY TO LOOK AT THIS IS THAT BOTH IN TERMS OF SITE OF LOCAT ION, AND ALSO FOR THE MANNER, IN WHICH THE HOTEL BUSINESS IS CARRIED OUT, IT SHOULD ANSWER THE DESCRIPTION OF A NATURE FRIENDLY, ECO-FRIENDLY HOTE L. SOME OF THE OTHER CRITERIA, WHICH ARE RELEVANT WOULD BE, WHETHER IN THE CONTEXT OF ITS BUSINESS, I T CAUSES NO HARM OR THE LEAST HARM TO ITS SURROUNDINGS; WHETHER IT PROVIDES EMPLOYMENT TO THE LOCAL POPULATION; WHETHER IT DEVELOPS LOCAL CULTURE AND ARTS; DOES IT PRODUCE THE LEAST IMPACT ON ENVIRONMENT; WHETHER IT RESORTS TO RECYCLING; WHAT STEPS IT TAKES TOWARDS THE ENERGY EFFICIENCY AND WATER CONSERVATION; DOES IT ENHANCE THE CULTURAL AND ECONOMIC SET UP AND INTEGRITY OF LOCAL PEOPLE; DOES IT PROMOTE SUSTAINABLE USE OF BIODIVERSITY AND CONSERVATION OF CULTURAL DIVERSITY ? IN ONE CASE, [ITA NO.09 OF 2012], IN ANSWER TO THE QUERY, THE ASSESSEE WOULD WRITE THAT THE HOTEL IS CONNECTED TO THE CITY SEWER SYSTEM. SOLID GARBAGE WASTE, IT IS ANSWERED, IS DISPOSED OF IN THE CITY GARBAGE CONTAINER. WE HAVE NO HESITATION IN SAYING THAT THE FACT THAT IT IS CONNECTED TO THE CITY SEWE R SYSTEM AND THAT THE SOLID GARBAGE WASTE IS DISPOSED OF IN THE CITY GARBAGE CONTAINER, CAN HARDLY MAKE IT A HOTEL FULFILLING THE CRITERIA OF A N 8 ECOTOURISM HOTEL, IF SUCH A REQUIREMENT IS ACTUALLY THERE, WHICH ISSUE WE WILL ADDRESS. 33. WE ARE OF THE VIEW THAT IT IS NOT THE INTENTION OF THE LEGISLATURE THAT ANY PERSON WHO SETS UP A HOTEL WITHIN THE TIME LIMITS INDICATED IN THE STATE OF UTTARAKHAND, WITHOUT ANY REGARD TO THE EXACT LOCATION, AND THE MANNER IN WHICH IT OPERATES, ITS IMPACT ON THE NATURE (ENVIRONMENT), ITS RELATIONSHIP WITH THE LOCAL PEOPLE (LOCAL COMMUNITY), WHAT IT DOES FOR THE PEOPLE THERE, INDISCRIMINATELY, ALL SUCH HOTELS SHOULD BE ENTITLE D TO CLAIM THE BENEFIT. IT IS TRUE THAT THE WORD ECOTOURISM INCLUDES HOTELS AMONG OTHER ACTIVITIES. WE WOULD THINK THAT IN THE CONTEXT OF THIS CASE, WE WOULD NOT BE UNJUSTIFIED IF WE INTERPRET THE WORD HOTEL TAKING COLOR AND ASSISTANCE FROM THE WORD ECOTOURISM. THE WORD ECOTOURISM, IT MUST BE NOTED, APPEARS AT THE BEGINNING OF THE PROVISION. OBVIOUSLY CONFRONTED WITH THE OBSTACLE IT CAUSES TO THE ACCEPTANCE OF TH E RESPONDENTS ARGUMENT, MIMANSA PRINCIPLES INVOKED IN THE DECISION OF ISPATS CASE ARE RELIED ON BY SH RI PULAK RAJ MULLICK. WE HAVE ALREADY EXTRACTED THE RELEVANT PASSAGE. EVEN APPLYING THE MIMANSA PRINCIPLES, WE ARE AT A TOTAL LOSS AS TO HOW ANY ASSISTANCE WOULD BE DERIVED FROM THE PRINCIPLES LAID DOWN IN THE MIMANSA PRINCIPLE OF INTERPRETATION. THE ARGUMENT APPEARS TO BE THAT SUBORDINATE ACCESSORY MUST BE RENDERED SUBSERVIENT TO THE PRINCIPLE. THERE CAN BE NO QUARREL WITH THE SAME BUT THAT INVOLVES AN ANSWER TO THE QUESTION WHICH IS THE PRINCIPLE. IN FACT, TH E ACCEPTANCE OF THE ASSESSEES ARGUMENT WOULD RENDER IT NECESSARY FOR US TO DELETE THE WORD ECO. 34. WE WOULD THINK THAT NEITHER THE BLUE PENCIL THEORY NOR THE MIMANSA THEORY CAN BE OF ANY ASSISTANCE TO THE ASSESSEE. THE BLUE PENCIL THEORY IS PREMISED ON THE PRINCIPLE OF SEVERANCE AND IT IS TRUE THAT IT IS EVOLVED TO SEPARATE THAT WHICH IS ILLEGAL FROM THAT WHICH WOULD PASS MUSTER. IN SUCH CIRCUMSTANCES, IT IS AT THE HEART OF THE DOCTRINE O F SEVERABILITY. WE CAN HAVE NO QUARREL WITH THE SAID PRINCIPLES, BUT ITS APPLICATION TO THE FACTS OF THI S CASE IS TOTALLY WITHOUT FOUNDATION WHEN THE LEGISLATURE HAS DELIBERATELY INTENDED ECOTOURISM TO BE AT THE HEART OF ITS DECISION TO GIVE A DEDUCTION. WE ARE AT A LOSS AS TO HOW IT CAN BE ITSELF DONE AWAY IN ORDER TO PROVIDE FOR DEDUCTION TO A HOTEL, WHICH IS MERELY ENGAGED IN TOURISM AND NOT ECOTOURISM. IN OTHER WORDS, WE ARE OF THE VIEW THAT IN THE SETTING IN WHICH ENTRY 15 OF 14 TH SCHEDULE APPEARS , IT SHOULD YIELD THE FOLLOWING RESULT. ONLY HOTELS, WHICH WERE SETUP AS 9 ECOTOURISM UNITS OR HAVING SET UP AS ECOTOURISM OR UNITS, WERE EXPANDED AS SUCH, WOULD BE ENTITLED TO THE BENEFIT OF 80-IC. WE WOULD THINK THAT THE SOUL OF THE PROVISION IS ECOTOURISM. VARIOUS FORMS, IN WHICH ECOTOURISM MAY BE PRACTISED AND OPERATED, ARE ENUMERATED AFTER THE GENERAL WORD ECOTOURISM. THE ACTIVITIES MENTIONED SPECIFICALLY MUST SHARE ONE COMMON FEATURE, I.E., THEY MUST BE PURSUED AS PART OF ECOTOURISM. THIS IN OUR HUMBLE VIEW IS THE INTERPRETATION, WHICH WOULD DO JUSTICE TO THE WORDS, THE CONTEXT AND OBJECT OF THE STATUTE . CERTAINLY, THE MERE PROCUREMENT OF A NO OBJECTION FROM THE POLLUTION CONTROL BOARD CANNOT BE DETERMINATIVE OF A QUESTION, WHETHER THE HOTEL FULFILLS THE REQUIREMENT UNDER SECTION 80-IC OF THE ACT. MAY BE, IT IS NOT IN DISPUTE, IN FACT, ACCORDI NG TO SHRI PULAK RAJ MULLICK THAT FOR ALL HOTELS OF A PARTICULAR TYPE, SATISFYING A PARTICULAR REQUIREMENT, NO OBJECTION IS REQUIRED FROM THE POLLUTION CONTROL BOARD. IN THIS CONTEXT, WE BEAR I N MIND THE ARGUMENT OF SHRI H.M. BHATIA, THAT POLLUTION CONTROL BOARD ACTUALLY GIVES NO OBJECTION CONSENT TO OPERATE IN THE CONTEXT OF AIR AND WATER POLLUTION. BY NO MEANS, CAN THIS BE THE SOLE DETERMINANT OF THE QUESTION, AS TO WHETHER THE HOTEL IS ENGAGED IN ECOTOURISM. 35. THEREFORE, NECESSARILY THE ORDER PASSED BY THE TRIBUNAL CANNOT BE SUSTAINED. THE RECEIPT OF THE SUBSIDY CANNOT BE A HURDLE IN OUR TAKING THE VIEW, WHICH WE ARE TAKING AS WE ARE CALLED UPON TO DECIDE THE ACTUAL SCOPE OF THE PROVISION IN THIS APPEAL. WHILE WE DO NOT DISCOUNT THE FACT THAT SUBSIDY MAY HAVE BEEN GIVEN THE ACTUAL INTERPRETATION OF THE PROVISION IS A TASK, WHICH WE CANNOT ABDICATE. 36. EVEN REGARDING THE SITES OF THE ACTIVITIES, WE WOULD THINK THAT IT MUST HAVE SOMETHING TO DO WITH AREAS CLOSE TO NATURE. NO DOUBT, IN THE STATE OF UTTARAKHAND, THE AREA OF NATURAL BEAUTY AND AREAS CLOSE TO NATURE, OFTEN OVERLAPPED IN CLOSE PROXIMIT Y WITH DEVELOPED AREAS. THESE ARE ALL MATTERS WE WOULD LEAVE TO THE AUTHORITY. IN VIEW OF THE SAME, THE ORDER OF THE TRIBUNAL CANNOT BE SUSTAINED AND THE MATTER MUST BE REDONE. ACCORDINGLY, THE IMPUGNED ORDERS IN ALL THESE CASES WILL STAND SET ASIDE. A REQUEST IS MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT IF THE MATTER IS SET ASIDE AN D REMANDED, IT BE REMANDED NOT TO THE TRIBUNAL BUT TO THE ASSESSING OFFICER. LEARNED COUNSEL FOR THE REVENUE MR. H.M. BHATIA DOES NOT OBJECT TO THIS COURSE OF ACTION. IN SUCH CIRCUMSTANCES, IN VIEW OF THE FACT THAT THE MATTER MUST BE REDONE, WE SET ASIDE THE IMPUGNED ORDERS. THE MATTER IS REMANDED BACK TO THE ASSESSING OFFICER, WHO WILL 10 AFFORD OPPORTUNITY TO ALL THE ASSESSEES AND PASS FRESH ORDERS TAKING NOTE OF THE OBSERVATIONS, WHICH WE HAVE MADE. 37. THE ANSWER TO THE SUBSTANTIAL QUESTION OF LAW NO.1 IS GIVEN IN FAVOUR OF THE REVENUE/APPELLANT BY HOLDING THAT MERELY BECAUSE A NO OBJECTION CERTIFICATE HAS BEEN OBTAINED FROM THE POLLUTION CONTROL BOARD, THE CONDITIONS UNDER SECTION 80-IC WILL NOT BE FULFILLED. 38. IN VIEW OF THE ABOVE, THE APPEALS STAND DISPOSED OF. 10. IN VIEW OF THE ABOVE DECISION OF THE HONBLE HI GH COURT AND IN THE ABSENCE OF ANY CONTRARY DECISION OF ANY OTHER HIGH COURT HAVING BEEN BROUGHT TO OUR NOTICE, IT WO ULD BE JUST AND PROPER TO FOLLOW THE SAME SINCE IT HAS JUD ICIAL PRECEDENCE OVER THE DECISION OF I.T.A.T. RESPECTFUL LY FOLLOWING THE SAME WE RESTORE THE MATTER BACK TO TH E FILE A.O. TO CONSIDER THE SAME AFRESH AND DECIDE THE SAM E IN ACCORDANCE WITH LAW. 11. FURTHER WE FIND NO MERIT IN THE CONTENTION OF T HE LD. COUNSEL FOR THE ASSESSEE THAT THE I.T.A.T. CHANDIGA RH BENCH HAD ADJUDICATED IDENTICAL ISSUE FOLLOWING ITS DECIS ION IN THE CASE OF THE ASSESSEE AND AFTER CONSIDERING THE DECI SION OF THE HONBLE UTTRAKHAND HIGH COURT IN THE CASE OF AA NCHAL HOTELS (SUPRA) AND THEREFORE THE DECISION THE I.T.A .T IN PRECEDING YEARS IN THE CASE OF THE ASSESSEE WOULD A PPLY IN THE IMPUGNED YEAR ALSO, FOR THE REASON THAT THE SAI D DECISION HAS BEEN GIVEN BY A SINGLE MEMBER BENCH(SM C) WHICH IS NOT BINDING ON THE DIVISION BENCH OF THE I.T.A.T. 11 12. FOR THE ABOVE REASONS, THE MATTER IS RESTORED B ACK TO THE A.O. TO BE DECIDED AFRESH AS PER PREVAILING POS ITION OF LAW AND AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 13. IN THE RESULT, THE APPEAL OF THE REVENUE, THERE FORE, STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14/12/2017. SD/- SD/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 14 TH DECEMBER, 2017 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH