M/S. THAKUR INFRA PROJECTS PVT. LTD, RAIGAD V. DEPUTY COMMISSIONER OF INCOME TAX, PANVEL CIRCLE, RAIGAD

ITA 5592/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5899 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 28-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR MEHTA
• Keywords: Question of law; Condonation of delay; Set aside
• Section: 80IA; 263; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.5592/M/2019 ASSESSMENT YEAR: 2013-14 M/S. THAKUR INFRA PROJECTS PVT. LTD., OM SADANIKA, PLOT NO.265/1, PANVEL URAN RD., PANVEL, RAIGAD-410206 PAN: AACCT6451F VS. DY. CIT, PANVEL CIRCLE, DIST RAIGAD (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI DEVENDRA JAIN, A.R. REVENUE BY : SHRI VIJAY KUMAR MEHTA, D.R. DATE OF HEARING : 04.08.2021 DATE OF PRONOUNCEMENT : 14.09.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 06.03.2018 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2013-14. 2. THE ASSESSEE HAS RAISED ONLY ONE GROUND OF APPEA L WHICH IS REPRODUCED AS UNDER: THE LD. CIT(A) ERRED CONFIRMING THE DISALLOWANCE M ADE BY THE AO OF THE DEDUCTION CLAIMED BY YOUR APPELLANT U/S 80IA OF RS.84,14,990/ - OF THE ACT 3. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE B ROUGHT TO THE NOTICE OF THE BENCH THE DELAY OF 427 DAYS IN FILING THE APPEAL. THE LD. A.R. SUBMITTED THAT THE ORDER OF L D. CIT(A) WAS ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 2 RECEIVED ON 28.04.2018 AND THEREAFTER IMMEDIATELY S CANNED AND SENT TO THE CONSULTING CHARTERED ACCOUNTANT OF THE ASSESSEE MR. AMIT DHAVALE ON HIS EMAIL AND THEREAFTER THE ASSESS EE WAS BONAFIDE IMPRESSION THAT NECESSARY ACTION HAS BEEN TAKEN BY THE CHARTERED ACCOUNTANT OF THE ASSESSEE. THE LD AR SUBMITTED THAT UNFORTUNATELY THE EMAIL OF THE CHARTERED ACCOU NTANT WAS NOT FUNCTIONAL AND THEREFORE HE WAS NOT AWARE OF TH E ORDER OF LD. CIT(A) SENT TO HIM. IT IS ONLY WHEN THE ASSESSEE E NQUIRED ABOUT THE STATUS OF THE APPEAL IT CAME TO KNOW THAT NO AP PEAL HAS BEEN FILED BEFORE THE TRIBUNAL AGAINST THE ORDER OF LD. CIT(A) WITHIN 60 DAYS AND HENCE THIS DELAY IN FILING THE APPEAL. TH E LD. A.R. SUBMITTED THAT THE SUBSTANTIAL JUSTICE IS PITTED AG AINST THE TECHNICALITIES THEN FORMER MUST PREVAIL OVER THE LA TTER. THE LD. A.R. RELIED ON THE DECISION OF HONBLE APEX COURT I N THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & ORS. 167 ITR 471 AND PRAYED THAT THE DELAY MAY KINDLY BE CONDONED. 4. THE LD. D.R., ON THE OTHER HAND, STRONGLY OPPOSE D THE ARGUMENTS OF THE LD. A.R. THAT THERE IS NO REASONAB LE CAUSE FOR CONDONING THE DELAY AS ASSESSEE HAS COMPLETELY FAIL ED TO DISCHARGE THE BURDEN CAST UPON TO EXPLAIN THE DELA Y OF EACH AND EVERY DAY AND THEREFORE SUBMITTED THAT THE APPEAL M AY NOT BE ADMITTED. 5. AFTER HEARING THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD AND THE DECISION OF HONBLE APEX COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS . MST. KATIJI & ORS (SUPRA), WE FIND THAT THE HONBLE APEX COURT HA S HELD THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIO NS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 3 PREFERRED AS THE OTHER SIDE CANNOT CLAIM TO HAVE V ESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. IN THIS CASE ALSO THE DELAY APPEARS TO BE NON DELIBERATE AN D NOT BECAUSE OF ANY FAILURE ON THE PART OF ASSESSEE AS ASSESSEE IS NOT BENEFITTED IN ANY WAY BY LATE FILING OF APPEAL. AC CORDINGLY, WE ARE INCLINED TO CONDONE THE DELAY IN FILING THE APP EAL. 6. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE S UBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF CO-ORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO.742 & 743/M/ 2018 A.Y. 2011-12 & 2012-13 ORDER DATED 18.01.2021 WHEREIN TH E IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE A SSESSEE. THE LD. A.R. PRAYED THAT SINCE THE FACTS IN THE PRESENT APPEAL ARE SIMILAR AND THE PRESENT APPEAL MAY ALSO BE ALLOWED FOLLOWING THE SAID DECISION OF THE CO-ORDINATE BENCH OF THE TRIBU NAL. 7. THE LD. A.R., ON THE OTHER HAND, RELIED ON THE O RDER OF LD. CIT(A) AND AO. 8. AFTER HEARING THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD AND THE DECISION OF THE CO- ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.742 & 743/ M/2018 (SUPRA), WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE. THE OPERATIVE PART IS AS UNDER: 7. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT IN THIS CASE THE A SSESSEE WAS AWARDED A PROJECT BY CIDCO TO CONSTRUCT A PARKING LOT CALLED TRUCK TERMI NAL HAVING FACILITIES ON BOT BASIS. UNDER THE TERMS OF AWARD, THE ASSESSEE WAS RESPONSI BLE FOR REPAIR, MAINTENANCE AND OPERATION OF THE SAID TERMINAL. THE ASSESSEE US ED TO COLLECT FEE FROM THE TRUCK OWNERS FROM THE TRUCKS AND ALSO PAY YEARLY FEE TO C IDCO. ACCORDING TO THE AO THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTIO N 80IA OF THE ACT ON THE GROUND THAT THE TRUCK TERMINAL IS NOT AN INFRASTRUCTURE FA CILITY WHICH WAS AFFIRMED BY LD. CIT(A) IN THE APPELLATE ORDER. ACCORDING TO THE REV ENUE AUTHORITIES THE TRUCK PARKING TERMINAL IS AN INDEPENDENT CONTRACT WITH CIDCO WHIC H HAS NOTHING TO DO HIGHWAYS. SO THE ISSUE BEFORE US IS WHETHER THE TRUCK TERMINA L IS AN INTEGRAL PART OF HIGHWAYS ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 4 OR NOT. WE NOTE THAT FINANCE ACT, 2001 HAS MODIFIED THE DEFINITION OF INFRASTRUCTURE FACILITY WHICH MEANS A HIGHWAY PROJECT INCLUDING HO USING OR OTHER ACTIVITIES BEING AN INTEGRAL PART OF THE HIGHWAY PROJECT. IT IS CLEAR F ROM THE AMENDED DEFINITION THAT ANY INFRASTRUCTURE WHICH IS PART OF THE HIGH WAY FA LLS WITHIN THE DEFINITION OF INFRASTRUCTURE. AFTER PERUSING THE FACTS ON RECORD CAREFULLY AND ALSO EXAMINING THE TERMS AND CONDITIONS OF AWARD OF CONTRACT TO THE AS SESSEE TO CONSTRUCT, BUILD OR OPERATE THE SAID TERMINAL ON BOT BASIS, WE FIND THA T THIS IS AN INTEGRAL PART OF HIGHWAY THOUGH THE HIGHWAY WAS EXISTING ALREADY AND IT WAS ONLY A STAND ALONE PROJECT AWARDED TO THE ASSESSEE LATER ON. WE HAVE A LSO NOTICED THAT THE SAID TERMINAL WAS HAVING VARIOUS FACILITIES AS STATED HE REINABOVE. THE CASE OF THE ASSESSEE FINDS SUPPORT FROM THE DECISION OF DY. COM MISSIONER OF INCOME TAX VS. VINTAGE ADVERTISING PVT. LTD. (2015) 60 TAXMANN.COM 162 (KOLKATA- TRIBUNAL) WHEREIN IT HAS BEEN HELD THAT ASSESSEE IS ENTITLED FOR DEDUCTION UNDER SECTION 80IA OF THE ACT ON BUS SHELTER AND FOOT OVER BRIDGE. THE OPERATIVE PART IS REPRODUCED AS UNDER: 9. WE HAVE HEARD BOTH COUNSEL AND CAREFULLY PERUSE D THE RECORDS. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IS NOT AT ALL ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IA OF T HE ACT ON BUS SHELTERS AND FOOT OVERBRIDGES. THE LEARNED DEPARTMENTAL REPRESEN TATIVE SUBMITTED THAT AS IN THIS CASE IT IS NOT THE CASE THAT THE ASSESSE E HAS GAINED ANY PROFIT OR GAIN FROM THE SAID BUSINESS UPON WHICH DEDUCTION UN DER SECTION 80-IA OF THE ACT IS BEING CLAIMED. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT IT IS NOT THE CASE THAT ANY TOLL/FEE IS BEING CHARGED FOR THE USE OF FOOT OVERBRIDGES OR BUS SHELTER FOR WHICH DE DUCTION UNDER SECTION 80- IA OF THE ACT IS BEING CLAIMED. THE LEARNED DEPARTM ENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IS EARNING INCOME BY WA Y OF ADVERTISING ON THE FOOT OVERBRIDGES AND BUS SHELTERS WHICH IS THE SUBJ ECT MATTER OF THE ASSESSEE'S CLAIM OF DEDUCTION UNDER SECTION 80-IA O F THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE INCO ME ON ACCOUNT OF ADVERTISEMENT CANNOT SAID TO BE AN INCOME DERIVED B Y AN UNDERTAKING FROM THE BUSINESS OF INFRASTRUCTURE DEVELOPMENT. HENCE H E SUBMITTED THAT THE ASSESSEE CANNOT BE ALLOWED DEDUCTION UNDER SECTION 80-IA OF THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE MADE ELABORATE SUBMISSIONS WITH RESPECT TO MEANING OF PHRASE 'DERIVED FROM'. HE ALS O REFERRED TO SEVERAL CASE LAW INCLUDING THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF LIBERTY INDIA V. CIT [2009] 317 ITR 218/183 TAXMAN 349 (SC). REFERRING TO THE RATIO EMANATING FROM THE AFORESAID APEX COURT'S DECISION THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE PROF IT OF THE ASSESSEE FROM THE ADVERTISING BUSINESS WOULD CERTAINLY BE PROFITS AND GAINS OF THE BUSINESS IN TERMS OF SECTION 28 OF THE ACT, THE SAME WOULD N OT AMOUNT TO PROFITS OR GAINS DERIVED FROM THE INDUSTRIAL UNDERTAKING. THE LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER REFERRED TO THE HON'BLE CALC UTTA HIGH COURT'S DECISION IN THE CASE OF MUKHERJEE ESTATE (P.) LTD. V. CIT [2 000] 244 ITR 1/113 TAXMAN 313 FOR THE PROPOSITION THAT INCOME MAINLY PUBLICIT Y CHARGES BY PUTTING UP HOARDING/DISPLAYING ADVERTISEMENT FROM A BUILDING C ANNOT BE TREATED AS INCOME FROM PROPERTY BUT INCOME FROM OTHER SOURCES. THE LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT THE ABOVE PROVES THAT THE ASSESSEE'S INCOME DOES NOT INCLUDE ANY PROFIT W HICH IS DERIVED FROM ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 5 DEVELOPING OR (II) OPERATING AND MAINTAINING OR (II I) DEVELOPING, OPERATING AND MAINTAINING FOOT OVERBRIDGE AND BUS SHELTER. TH E LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT THE HON'BLE K ARNATAKA HIGH COURT IN THE CASE OF CIT V. SKYLINE ADVERTISING (P.) LTD. [2 014] 225 TAXMAN 220 (MAG.)/45 TAXMANN.COM 532 , HAS HELD THAT THE BENEF IT UNDER SECTION 80-IA OF THE ACT CAN BE EXTENDED ONLY TO THOSE ASSESSEES WHO HAVE DEVELOPED INFRASTRUCTURE FACILITY AS DEFINED UNDER SECTION 80 -IA(4) OF THE ACT. THE HON'BLE HIGH COURT DISCUSSED THE FACT OF THE CASE T HAT THE ASSESSEE HAS NOT DEVELOPED ROAD OR A TOLL ROAD, BRIDGE, HIGHWAY OR A RAIL SYSTEM. HOWEVER, IT HAD DEVELOPED THE EXISTING ROAD MEDIAN, ERECTED BUS SHELTERS AND LIGHT POLES FOR ITS ADVERTISEMENT BUSINESS, WHICH, IN ANY CASE CANNOT BE TREATED AS INFRASTRUCTURE DEVELOPMENT. ACCORDINGLY, THE HON'BL E HIGH COURT DECIDED THE QUESTION OF LAW IN FAVOUR OF THE REVENUE AND AG AINST THE ASSESSEE. IN VIEW OF THE ABOVE THE LEARNED DEPARTMENTAL REPRESEN TATIVE PRAYED THAT THE ASSESSEE CANNOT BE ALLOWED ANY DEDUCTION UNDER SECT ION 80-IA OF THE ACT. 9. WE HAVE HEARD BOTH COUNSEL AND CAREFULLY PERUSED THE RECORDS. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IS NOT AT ALL ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IA OF T HE ACT ON BUS SHELTERS AND FOOT OVERBRIDGES. THE LEARNED DEPARTMENTAL REPRESEN TATIVE SUBMITTED THAT AS IN THIS CASE IT IS NOT THE CASE THAT THE ASSESSE E HAS GAINED ANY PROFIT OR GAIN FROM THE SAID BUSINESS UPON WHICH DEDUCTION UN DER SECTION 80-IA OF THE ACT IS BEING CLAIMED. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT IT IS NOT THE CASE THAT ANY TOLL/FEE IS BEING CHARGED FOR THE USE OF FOOT OVERBRIDGES OR BUS SHELTER FOR WHICH DE DUCTION UNDER SECTION 80- IA OF THE ACT IS BEING CLAIMED. THE LEARNED DEPARTM ENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE IS EARNING INCOME BY WA Y OF ADVERTISING ON THE FOOT OVERBRIDGES AND BUS SHELTERS WHICH IS THE SUBJ ECT MATTER OF THE ASSESSEE'S CLAIM OF DEDUCTION UNDER SECTION 80-IA O F THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE INCO ME ON ACCOUNT OF ADVERTISEMENT CANNOT SAID TO BE AN INCOME DERIVED B Y AN UNDERTAKING FROM THE BUSINESS OF INFRASTRUCTURE DEVELOPMENT. HENCE H E SUBMITTED THAT THE ASSESSEE CANNOT BE ALLOWED DEDUCTION UNDER SECTION 80-IA OF THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE MADE ELABORATE SUBMISSIONS WITH RESPECT TO MEANING OF PHRASE 'DERIVED FROM'. HE ALS O REFERRED TO SEVERAL CASE LAW INCLUDING THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF LIBERTY INDIA V. CIT [2009] 317 ITR 218/183 TAXMAN 349 (SC). REFERRING TO THE RATIO EMANATING FROM THE AFORESAID APEX COURT'S DECISION THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE PROF IT OF THE ASSESSEE FROM THE ADVERTISING BUSINESS WOULD CERTAINLY BE PROFITS AND GAINS OF THE BUSINESS IN TERMS OF SECTION 28 OF THE ACT, THE SAME WOULD N OT AMOUNT TO PROFITS OR GAINS DERIVED FROM THE INDUSTRIAL UNDERTAKING. THE LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER REFERRED TO THE HON'BLE CALC UTTA HIGH COURT'S DECISION IN THE CASE OF MUKHERJEE ESTATE (P.) LTD. V. CIT [2 000] 244 ITR 1/113 TAXMAN 313 FOR THE PROPOSITION THAT INCOME MAINLY PUBLICIT Y CHARGES BY PUTTING UP HOARDING/DISPLAYING ADVERTISEMENT FROM A BUILDING C ANNOT BE TREATED AS INCOME FROM PROPERTY BUT INCOME FROM OTHER SOURCES. THE LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT THE ABOVE PROVES THAT THE ASSESSEE'S INCOME DOES NOT INCLUDE ANY PROFIT W HICH IS DERIVED FROM ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 6 DEVELOPING OR (II) OPERATING AND MAINTAINING OR (II I) DEVELOPING, OPERATING AND MAINTAINING FOOT OVERBRIDGE AND BUS SHELTER. TH E LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT THE HON'BLE K ARNATAKA HIGH COURT IN THE CASE OF CIT V. SKYLINE ADVERTISING (P.) LTD. [2 014] 225 TAXMAN 220 (MAG.)/45 TAXMANN.COM 532 , HAS HELD THAT THE BENEF IT UNDER SECTION 80-IA OF THE ACT CAN BE EXTENDED ONLY TO THOSE ASSESSEES WHO HAVE DEVELOPED INFRASTRUCTURE FACILITY AS DEFINED UNDER SECTION 80 -IA(4) OF THE ACT. THE HON'BLE HIGH COURT DISCUSSED THE FACT OF THE CASE T HAT THE ASSESSEE HAS NOT DEVELOPED ROAD OR A TOLL ROAD, BRIDGE, HIGHWAY OR A RAIL SYSTEM. HOWEVER, IT HAD DEVELOPED THE EXISTING ROAD MEDIAN, ERECTED BUS SHELTERS AND LIGHT POLES FOR ITS ADVERTISEMENT BUSINESS, WHICH, IN ANY CASE CANNOT BE TREATED AS INFRASTRUCTURE DEVELOPMENT. ACCORDINGLY, THE HON'BL E HIGH COURT DECIDED THE QUESTION OF LAW IN FAVOUR OF THE REVENUE AND AG AINST THE ASSESSEE. IN VIEW OF THE ABOVE THE LEARNED DEPARTMENTAL REPRESEN TATIVE PRAYED THAT THE ASSESSEE CANNOT BE ALLOWED ANY DEDUCTION UNDER SECT ION 80-IA OF THE ACT. 10. LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL'S DECISION AS MENTIONED ABOVE. IN THE SAID ORDER THE TRIBUNAL HAD HELD AS UNDER : 'AFTER HEARING BOTH SIDES, WE FIND THAT THE ASSESSE E HAS CLAIMED DEDUCTION UNDER SECTION 80-IA ON BUS SHELTERS TREATING THE SA ME AS INTEGRAL PART OF HIGHWAY AND DEVELOPMENT INFRASTRUCTURE. FOR THE PUR POSE OF HIGHWAY SYSTEM THE BUILDING OF THE BUS SHELTERS ARE FUNCTIO NAL NECESSITY AND THESE ARE INEXTRICABLY CONNECTED WITH THE INFRASTRUCTURE REQUIRED FOR HIGHWAY. WITHOUT BUS SHELTERS THE SMOOTH MOVEMENT OF THE VEH ICLES AND THE OPERATION OF THE VEHICLES THROUGH THE HIGHWAY SHALL NOT BE OF DESIRED LEVEL. THUS THE BUS SHELTERS ARE FUNCTIONALLY NECESSARY PA RT AND PARCEL OF THE HIGHWAY INFRASTRUCTURE. BY HOLDING SO WE FIND THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS RIGHTLY AL LOWED THE APPEAL OF THE ASSESSEE ON THIS ISSUE. WE UPHOLD THE SAME AND DISM ISS THIS GROUND OF APPEAL TAKEN BY THE DEPARTMENT.' 11. LEARNED COUNSEL FURTHER SUBMITTED THAT THE ABOV ESAID ORDER OF THE TRIBUNAL HAD BEEN APPEALED AGAINST BY THE DEPARTMEN T IN THE HON'BLE HIGH COURT AND THE HON'BLE CALCUTTA HIGH COURT HAS NOT Y ET REVERSED THE DECISION OF THE INCOME-TAX APPELLATE TRIBUNAL. HENCE HE SUBM ITTED THAT THE TRIBUNAL'S ORDERS SHOULD BE SUSTAINED. LEARNED COUN SEL FURTHER SUBMITTED THAT THE ISSUE INVOLVED IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF DY. CIT V. SELVEL AD VERTISING (P.) LTD. [2015] 58 TAXMANN.COM 196 (KOL.) WHEREIN THE IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. IN THAT CASE IT WAS ALSO PO INTED OUT THAT THE HON'BLE CALCUTTA HIGH COURT HAD PASSED AN ORDER CONFIRMING THE ORDER OF THE INCOME-TAX APPELLATE TRIBUNAL IN QUASHING A REVISIO N ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX UNDER SECTION 26 3 OF THE ACT WHEREBY ALLOWANCE OF SECTION 80-IA OF THE ACT ON BUS SHELTE RS AND FOOT OVERBRIDGES WAS DISALLOWED. 12. LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMIT TED THAT SECTION 80-IA OF THE ACT PROVIDES FOR DEDUCTION ON ACCOUNT OF PROFIT S AND GAINS DERIVED BY AN INDUSTRIAL UNDERTAKING FROM ANY BUSINESS REFERRED T O THEREIN. LEARNED ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 7 COUNSEL FURTHER SUBMITTED THAT THE HON'BLE APEX COU RT IN THE CASE OF LIBERTY INDIA (SUPRA ) DEALT WITH THE QUESTION WHETHER THE PROFIT FROM THE DUTY ENTITLEMENT PASS BOOK SCHEME (DEPB) AND THE DUTY DR AWBACK SCHEME COULD BE SAID TO BE PROFIT DERIVED FROM THE BUSINES S OF AN INDUSTRIAL UNDERTAKING ELIGIBLE FOR DEDUCTION UNDER SECTION 80 -IB OF THE INCOME-TAX ACT. HENCE HE SUBMITTED THAT THIS CASE LAW DOES NOT SUPPORT THE CASE OF THE DEPARTMENT. HE FURTHER SUBMITTED THAT THE VERY AGRE EMENTS UNDER WHICH THE ASSESSEE HAS DEVELOPED, OPERATED AND MAINTAINED THE INFRASTRUCTURE FACILITY AT ITS OWN COST PROVIDED FOR REVENUE GENER ATION BY THE ASSESSEE BY THE DISPLAY OF COMMERCIAL ADVERTISEMENT ON THE INFR ASTRUCTURE FACILITY DEVELOPED BY IT. LEARNED COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE WAS ALSO NOT TO CHARGE ANY AMOUNT FROM THE PUBLIC USERS OF THE INFRASTRUCTURE FACILITY DEVELOPED BY IT. THAT THE ASSESSEE WAS HOW EVER PERMITTED TO USE THE INFRASTRUCTURE FACILITY DEVELOPED BY IT TO RAISE RE VENUE BY DISPLAY OF COMMERCIAL ADVERTISEMENTS ON IT. THAT THE PROVISION IN THE AGREEMENTS RELATING TO GENERATION OF REVENUE IN THE MANNER AFO RESAID IS INEXTRICABLY AND DIRECTLY CONNECTED WITH THE DEVELOPMENT, OPERATION AND MAINTENANCE OF THE INFRASTRUCTURE FACILITY PROVIDED FOR IN THE AGR EEMENTS. LEARNED COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE DID NOT MERELY DEVELOP THE INFRASTRUCTURE FACILITY BUT THE ASSESSEE ALSO OPERA TED AND MAINTAINED THE INFRASTRUCTURE FACILITY WHICH ACTIVITY ARE ALSO COV ERED BY SECTION 80-IA OF THE ACT. IN THIS REGARD LEARNED COUNSEL FURTHER REFERRE D TO THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT V. C EMENT MFG. CO. LTD. [ITAT NO. 130 OF 2014, DATED 15-1-2015]. IN THIS CASE THE HON'BLE CALCUTTA HIGH COURT HAS UPHELD THE INCOME-TAX APPELLATE TRIBUNAL' S DECISION HOLDING THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION UNDER SECTIO N 80-IC OF THE ACT BY TREATING THE TRANSPORT AND INTEREST SUBSIDY AS PART OF THE BUSINESS PROFIT. ACCORDINGLY, LEARNED COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE ASSESSEE'S CLAIM OF DEDUCTION UNDER SECTION 80-IA OF THE ACT C ANNOT BE DISALLOWED. 10. LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNAL'S DECISION AS MENTIONED ABOVE. IN THE SAID ORDER THE TRIBUNAL HAD HELD AS UNDER : 'AFTER HEARING BOTH SIDES, WE FIND THAT THE ASSESSE E HAS CLAIMED DEDUCTION UNDER SECTION 80-IA ON BUS SHELTERS TREAT ING THE SAME AS INTEGRAL PART OF HIGHWAY AND DEVELOPMENT INFRASTRUC TURE. FOR THE PURPOSE OF HIGHWAY SYSTEM THE BUILDING OF THE BUS S HELTERS ARE FUNCTIONAL NECESSITY AND THESE ARE INEXTRICABLY CON NECTED WITH THE INFRASTRUCTURE REQUIRED FOR HIGHWAY. WITHOUT BUS SH ELTERS THE SMOOTH MOVEMENT OF THE VEHICLES AND THE OPERATION O F THE VEHICLES THROUGH THE HIGHWAY SHALL NOT BE OF DESIRED LEVEL. THUS THE BUS SHELTERS ARE FUNCTIONALLY NECESSARY PART AND PARCEL OF THE HIGHWAY INFRASTRUCTURE. BY HOLDING SO WE FIND THAT THE LEAR NED COMMISSIONER OF INCOME-TAX (APPEALS) HAS RIGHTLY ALLOWED THE APP EAL OF THE ASSESSEE ON THIS ISSUE. WE UPHOLD THE SAME AND DISM ISS THIS GROUND OF APPEAL TAKEN BY THE DEPARTMENT.' ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 8 11. LEARNED COUNSEL FURTHER SUBMITTED THAT THE ABOV ESAID ORDER OF THE TRIBUNAL HAD BEEN APPEALED AGAINST BY THE DEPARTMEN T IN THE HON'BLE HIGH COURT AND THE HON'BLE CALCUTTA HIGH COURT HAS NOT Y ET REVERSED THE DECISION OF THE INCOME-TAX APPELLATE TRIBUNAL. HENCE HE SUBM ITTED THAT THE TRIBUNAL'S ORDERS SHOULD BE SUSTAINED. LEARNED COUN SEL FURTHER SUBMITTED THAT THE ISSUE INVOLVED IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN THE CASE OF DY. CIT V. SELVEL AD VERTISING (P.) LTD. [2015] 58 TAXMANN.COM 196 (KOL.) WHEREIN THE IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. IN THAT CASE IT WAS ALSO PO INTED OUT THAT THE HON'BLE CALCUTTA HIGH COURT HAD PASSED AN ORDER CONFIRMING THE ORDER OF THE INCOME-TAX APPELLATE TRIBUNAL IN QUASHING A REVISIO N ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME-TAX UNDER SECTION 26 3 OF THE ACT WHEREBY ALLOWANCE OF SECTION 80-IA OF THE ACT ON BUS SHELTE RS AND FOOT OVERBRIDGES WAS DISALLOWED. 12. LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMIT TED THAT SECTION 80-IA OF THE ACT PROVIDES FOR DEDUCTION ON ACCOUNT OF PROFIT S AND GAINS DERIVED BY AN INDUSTRIAL UNDERTAKING FROM ANY BUSINESS REFERRED T O THEREIN. LEARNED COUNSEL FURTHER SUBMITTED THAT THE HON'BLE APEX COU RT IN THE CASE OF LIBERTY INDIA (SUPRA ) DEALT WITH THE QUESTION WHETHER THE PROFIT FROM THE DUTY ENTITLEMENT PASS BOOK SCHEME (DEPB) AND THE DUTY DR AWBACK SCHEME COULD BE SAID TO BE PROFIT DERIVED FROM THE BUSINES S OF AN INDUSTRIAL UNDERTAKING ELIGIBLE FOR DEDUCTION UNDER SECTION 80 -IB OF THE INCOME-TAX ACT. HENCE HE SUBMITTED THAT THIS CASE LAW DOES NOT SUPPORT THE CASE OF THE DEPARTMENT. HE FURTHER SUBMITTED THAT THE VERY AGRE EMENTS UNDER WHICH THE ASSESSEE HAS DEVELOPED, OPERATED AND MAINTAINED THE INFRASTRUCTURE FACILITY AT ITS OWN COST PROVIDED FOR REVENUE GENER ATION BY THE ASSESSEE BY THE DISPLAY OF COMMERCIAL ADVERTISEMENT ON THE INFR ASTRUCTURE FACILITY DEVELOPED BY IT. LEARNED COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE WAS ALSO NOT TO CHARGE ANY AMOUNT FROM THE PUBLIC USERS OF THE INFRASTRUCTURE FACILITY DEVELOPED BY IT. THAT THE ASSESSEE WAS HOW EVER PERMITTED TO USE THE INFRASTRUCTURE FACILITY DEVELOPED BY IT TO RAISE RE VENUE BY DISPLAY OF COMMERCIAL ADVERTISEMENTS ON IT. THAT THE PROVISION IN THE AGREEMENTS RELATING TO GENERATION OF REVENUE IN THE MANNER AFO RESAID IS INEXTRICABLY AND DIRECTLY CONNECTED WITH THE DEVELOPMENT, OPERATION AND MAINTENANCE OF THE INFRASTRUCTURE FACILITY PROVIDED FOR IN THE AGR EEMENTS. LEARNED COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE DID NOT MERELY DEVELOP THE INFRASTRUCTURE FACILITY BUT THE ASSESSEE ALSO OPERA TED AND MAINTAINED THE INFRASTRUCTURE FACILITY WHICH ACTIVITY ARE ALSO COV ERED BY SECTION 80-IA OF THE ACT. IN THIS REGARD LEARNED COUNSEL FURTHER REFERRE D TO THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT V. C EMENT MFG. CO. LTD. [ITAT NO. 130 OF 2014, DATED 15-1-2015]. IN THIS CASE THE HON'BLE CALCUTTA HIGH COURT HAS UPHELD THE INCOME-TAX APPELLATE TRIBUNAL' S DECISION HOLDING THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION UNDER SECTIO N 80-IC OF THE ACT BY TREATING THE TRANSPORT AND INTEREST SUBSIDY AS PART OF THE BUSINESS PROFIT. ACCORDINGLY, LEARNED COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE ASSESSEE'S CLAIM OF DEDUCTION UNDER SECTION 80-IA OF THE ACT C ANNOT BE DISALLOWED. ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 9 13. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AN D PERUSED THE RECORDS. WE FIND THAT THE ISSUE ON MERITS AS TO WHETHER THE ASSESSEE IS ENTITLED TO DEDUCTION UNDER SECTION 80-IA OF THE ACT FOR CONSTR UCTION OF FOOT OVER- BRIDGE AS WELL AS BUS SHELTER IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL AND THE HON'BLE CALCUTTA H IGH COURT AS REFERRED TO IN THE SUBMISSIONS OF LEARNED COUNSEL FOR THE ASSESSEE . THE TRIBUNAL IN THE ASSESSEE'S OWN CASE AS WELL AS IN THE CASE OF SELVE L ADVERTISING (P.) LTD. (SUPRA ) HAS HELD THAT BUS SHELTERS AND FOOT OVERBR IDGES SHOULD BE CONSIDERED AS PART OF THE INFRASTRUCTURE FACILITY F OR CLAIMING DEDUCTION UNDER SECTION 80-IA OF THE ACT. THIS ISSUE WAS ALSO SUPPO RTED BY THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF SELVEL A DVERTISING (P.) LTD. (SUPRA ) WHEREIN THE HON'BLE HIGH COURT HAS UPHELD THE INCOM E-TAX APPELLATE TRIBUNAL'S DECISION QUASHING THE REVISION ORDER PAS SED BY THE LEARNED COMMISSIONER OF INCOME-TAX UNDER SECTION 263 OF THE ACT WHEREIN BUS SHELTERS AND FOOT OVERBRIDGES WERE NOT TO BE CONSID ERED AS PART OF THE INFRASTRUCTURE FACILITY FOR CLAIMING DEDUCTION UNDE R SECTION 80-IA OF THE ACT. 14. AS REGARDS THE ISSUE RAISED BY THE LEARNED DEPA RTMENTAL REPRESENTATIVE THAT THE INCOME WHICH IS THE SUBJECT MATTER OF CLAI M OF DEDUCTION UNDER SECTION 80-IA OF THE ACT WAS NOT DERIVED FROM THE B USINESS OF ADVERTISING OF BUS SHELTERS AND FOOT OVERBRIDGES, WE FIND THAT THI S IS ALTOGETHER A NEW ISSUE WHICH IS NOT EVEN THE CASE OF THE ASSESSING OFFICER . THE ASSESSING OFFICER HAS MADE THE DISALLOWANCE ONLY ON THE GROUND THAT CONST RUCTION OF BUS SHELTER AND FOOT OVERBRIDGE CANNOT BE TREATED AS DEVELOPMEN T OF INFRASTRUCTURE FACILITY. HENCE THEY DO NOT QUALIFY FOR DEDUCTION U NDER SECTION 80-IA OF THE ACT. THIS ASPECT OF THE ASSESSING OFFICER'S DISALLO WANCE HAS BEEN DULY OVERRULED BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) AS WELL AS THE INCOME-TAX APPELLATE TRIBUNAL. THE SAME ALSO DR AWS SUPPORT FROM THE HON'BLE CALCUTTA HIGH COURT DECISION IN THE CASE OF SELVEL ADVERTISING (P.) LTD. (SUPRA ). IN THESE CASES IT HAS BEEN HELD THAT DEVELOPMENT OF FOOT OVERBRIDGES AND BUS SHELTERS DO QUALIFY FOR DEDUCTI ON UNDER SECTION 80-IA OF THE ACT ON ACCOUNT OF INFRASTRUCTURE DEVELOPMENT. W HEN THE ASSESSING OFFICER HAS NOT RAISED ANY ISSUE AS TO WHETHER THE INCOME OF THE ASSESSEE CAN BE CONSIDERED TO BE INCOME DERIVED FROM THE IND USTRIAL UNDERTAKING AND THE SAME WAS ALSO NOT THE SUBJECT-MATTER OF CONSIDE RATION BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) NOR AN Y SUCH GROUND HAS BEEN RAISED BEFORE THE INCOME-TAX APPELLATE TRIBUNA L, IN OUR CONSIDERED OPINION THE LEARNED DEPARTMENTAL REPRESENTATIVE CAN NOT NOW ENLARGE THE SCOPE OF THE REVENUE'S APPEAL BEFORE US. 15. IN THIS REGARD WE ALSO DRAW SUPPORT FROM THE HO N'BLE MADHYA PRADESH HIGH COURT EXPOSITION IN THE CASE OF KAMAL KISHORE & CO. V. CIT [1998] 232 ITR 668 FOR THE FOLLOWING PROPOSITION (HEADNOTE) : 'SECTION 253 OF THE INCOME-TAX ACT, 1961, PERMITS A PPEALS TO THE APPELLATE TRIBUNAL. UNDER SUB-SECTION (2) OF THIS S ECTION, THE COMMISSIONER MAY, IF HE OBJECTS TO ANY ORDER, DIREC T THE ASSESSING OFFICER TO APPEAL TO THE APPELLATE TRIBUNAL AGAINST THE ORDER. IT IS THUS CLEAR THAT THERE HAS TO BE AN APPEAL AND THERE HAS TO BE A SPECIFIC OBJECTION. UNDER ORDER 41, RULE 2, OF THE CODE OF CIVIL ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 10 PROCEDURE ALSO IT IS CLEAR THAT THE APPELLANT SHALL NOT EXCEPT BY LEAVE OF THE COURT, URGE OR BE HEARD IN SUPPORT OF ANY GR OUND OF OBJECTION NOT SET FORTH IN THE MEMORANDUM OF APPEAL.' 16. ON THE BASIS OF THE ABOVE RATIO THE HON'BLE HIG H COURT HAD HELD THAT ADMITTEDLY THE GROUND OF STATUS WAS NOT TAKEN BY TH E DEPARTMENT IN TERMS OF SECTION 253(2) OF THE ACT. NO LEAVE WAS OBTAINED TO URGE THE GROUND IN REGARD TO THE STATUS AS REGARDS THE LIABILITY TO TA X. THE TRIBUNAL ERRED IN LAW IN SETTING ASIDE THE FINDINGS GIVEN BY THE APPELLAT E ASSISTANT COMMISSIONER THAT THE ASSESSEE WAS A SEPARATE ENTITY AND THE ASS ESSMENT MADE IN THE CASE OF THE ASSESSEE SHOULD BE TREATED AS SUBSTANTI VE. 17. THUS FROM THE ABOVE WE HOLD THAT THE ISSUE WHIC H WAS NOT THE BASIS OF DISALLOWANCE BY THE ASSESSING OFFICER AND THE SAME WAS NOT THE SUBJECT- MATTER OF CONSIDERATION BY THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) AND THE SAME WAS ALSO NOT THE SUBJECT-MAT TER OF THE GROUND OF APPEAL TAKEN BEFORE THE INCOMETAX APPELLATE TRIBUNA L THE ISSUE NOW BEING RAISED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE N EED NOT BE ADJUDICATED BY US. HENCE ON THE ISSUE AS TO WHETHER FOOT OVERBR IDGES AND BUS SHELTERS QUALIFY FOR DEDUCTION OF SECTION 80-IA OF THE ACT W E HOLD THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS CORRECT IN HOLDING THE ASSESSEE'S ENTITLEMENT FOR DEDUCTION UNDER SECTION 80-IA OF TH E ACT. ACCORDINGLY, THIS GROUND OF APPEAL RAISED BY THE REVENUE STANDS DISMI SSED. 9. SINCE THE ISSUE IN THE CURRENT YEAR IS ALSO IDEN TICAL I.E. DISALLOWANCE OF CLAIM OF DEDUCTION UNDER SECTION 80 IA IN RESPECT OF PARKING SLOT WHICH WAS CONSTRUCTED UNDER AGREEME NT WITH CIDCO. ACCORDINGLY, WE ARE INCLINED TO SET ASIDE T HE ORDER OF LD. CIT(A) AND DIRECT THE AO TO ALLOW THE DEDUCTION UND ER SECTION 80IA IN RESPECT OF THE PARKING FACILITY. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.09.2021. SD/- SD/- ( PAVAN KUMAR GADALE) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 14.09.2021. * KISHORE, SR. P.S. ITA NO.5592/M/2019 M/S. THAKUR INFRA PROJECTS PVT. LTD. 11 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.