Joint CIT(OSD), Ernakulam V. H.H.A Tank Terminal Pvt. Ltd , Cochin

ITA 584/COCH/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65017 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-11-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 04-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

1 ITA NO. 584/COCH/2011 CO 38/COCH/2011 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO.584/COCH/2011 (ASSESSMENT YEAR 2008-09) JT.C.I.T (O.S.D) VS H.H.A TANK TERMINAL PVT LTD CIR.1(2), KOCHI CC-24/1869, INDIRA GANDHI ROAD, MURAF AREA, W.ISLAND KOCHI-03 PAN : AAACH7258L (APPELLANT) (RESPONDENT) C.O. NO.38/COCH/2011 (ARISING OUT OF I.T.A NO.584/COCH/2011) (ASSESSMENT YEAR 2008-09) H.H.A TANK TERMINAL PVT LTD VS JT.C.I.T (O.S.D.) W.ISLAND, KOCHI KOCHI (CROSS OBJECTOR) (RESPONDENT) REVENUE BY : SMT. SUSAN GEORGE VARGHESE TAXPAYER BY : SHRI V SATHYANARAYANAN DATE OF HEARING : 15-11-2012 DATE OF PRONOUNCEMENT : 14-12-2012 O R D E R PER N.R.S. GANESAN (JM) THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION O F THE TAXPAYER ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-II, KOCHI DATED 17-08-2011 AND PERTAIN TO ASSESSMENT YE AR 2008-09. 2 ITA NO. 584/COCH/2011 CO 38/COCH/2011 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IN THE A PPEAL FILED BY THE REVENUE IS ABOUT APPLICABILITY OF EXEMPTION U/S 80I A OF THE ACT TO THE ASSESSEE. 3. SMT. SUSAN GEORGE VARGHESE, THE LD.DR SUBMITTED THAT THE TAXPAYER CLAIMED DEDUCTION U/S 80IA OF THE ACT ON THE GROUND THAT IT OPERATED PORT INFRASTRUCTURE FACILITY. ACCORDING TO THE LD.REPRE SENTATIVE, THE CERTIFICATE ISSUED BY THE CHIEF ENGINEER OF THE PORT TRUST SHOW S THAT THE FACILITIES OF THE TAXPAYER FORMS PART OF THE PORT OPERATION. THI S CERTIFICATE DOES NOT SAY THAT THE FACILITIES FORM PART OF THE PORT. ACCORDI NG TO THE LD.DR, THE FACILITIES OPERATED BY THE TAXPAYER ARE NOT INTEGRAL PART OF T HE PORT ITSELF, THEREFORE, THE TAXPAYER IS NOT ELIGIBLE FOR DEDUCTION U/S 80IA OF THE ACT. 4. ON THE CONTRARY, SHRI V SATHYANARAYAN, THE LD.RE PRESENTATIVE FOR THE TAXPAYER SUBMITTED THAT THE VERY SAME ISSUE WAS CON SIDERED BY THE KERALA HIGH COURT ON THE APPEAL FILED BY THE REVENUE FOR T HE ASSESSMENT YEAR 2003-04 IN RESPECT OF THE SAME INFRASTRUCTURE FACIL ITY OPERATED BY THE TAXPAYER. FOR THE ASSESSMENT YEAR 2003-04 THE CONT ENTION OF THE DEPARTMENT WAS THAT THERE WAS NO PROVISION IN THE A GREEMENT FOR TRANSFER OF THE FACILITY TO THE CENTRAL GOVERNMENT OR STATE GOVERNMENT. THE HIGH COURT, AFTER EXAMINING THE AGREEMENT FOUND THAT THE TAXPAYER IS ENTITLED FOR DEDUCTION EVEN THOUGH THERE IS NO PROVISION IN THE AGREEMENT FOR TRANSFER OF FACILITY TO THE CENTRAL / STATE GOVERNM ENT OR THE LOCAL AUTHORITY. 3 ITA NO. 584/COCH/2011 CO 38/COCH/2011 ONCE THE HIGH COURT DECIDED THE MATTER CONFIRMING T HE ORDER OF THE TRIBUNAL, THE DEPARTMENT CANNOT NOW SAY THAT THE FA CILITY PROVIDED BY THE TAXPAYER DOES NOT FORM INTEGRAL PART OF THE PORT. 5. BY WAY OF REJOINDER, THE LD.DR SUBMITTED THAT PR OBABLY, THE DEPARTMENT MIGHT HAVE FILED APPEAL BEFORE THE SUPRE ME COURT AGAINST THE JUDGMENT OF THE HIGH COURT FOR THE ASSESSMENT YEAR 2 003-04. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IN RESPE CT OF THE VERY SAME INFRASTRUCTURE, VIZ. PROVIDING TANKER FACILITIES FO R STORAGE OF CHEMICALS, PETROCHEMICALS AT COCHIN PORT TRUST, THE ORDER OF T HIS TRIBUNAL GRANTING DEDUCTION U/S 80IA WAS CONFIRMED BY THE KERALA HIGH COURT IN ITA NO.1279 OF 2009 BY JUDGMENT DATED 19-03-2010. COPY OF THE U NREPORTED JUDGMENT OF THE KERALA HIGH COURT IS AVAILABLE AT PAGE 11 OF THE PAPER BOOK. THE ONLY CONTENTION OF THE LD.DR IS THAT PROBABLY THE DEPART MENT MIGHT HAVE FILED APPEAL BEFORE THE SUPREME COURT. IT IS NOT THE CAS E OF THE REVENUE THAT THE ORDER OF THE KERALA HIGH COURT WAS REVERSED BY THE SUPREME COURT. WHEN THE HIGH COURT CONFIRMED THE ORDER OF THE TRIBUNAL WHEREIN IT WAS HELD THAT THE TAXPAYER WAS ELIGIBLE FOR DEDUCTION U/S 80IA IT MAY NOT BE PROPER ON THE PART OF THE ASSESSING OFFICER AT THIS STAGE TO SAY THAT THE FACILITIES PROVIDED BY THE TAXPAYER DOES NOT FORM INTEGRAL PAR T OF THE PORT. ALL THE FACTS HAVE BEEN THOROUGHLY EXAMINED BY THE TRIBUNAL AND THE HIGH COURT AND IT WAS FOUND THAT THE TAXPAYER WAS ELIGIBLE FOR DEDUCTION U/S 80IA OF 4 ITA NO. 584/COCH/2011 CO 38/COCH/2011 THE ACT. THEREFORE, IF THE DEPARTMENT FELT AGGRIEV ED, IT IS OPEN TO THEM TO AGITATE THE ISSUE BEFORE THE SUPREME COURT BY WAY O F APPEAL. HOWEVER, IT CANNOT DISALLOW THE CLAIM OF THE TAXPAYER FOR THE Y EAR UNDER CONSIDERATION WHEN THE TAXPAYER OPERATES THE VERY SAME FACILITY A T THE VERY SAME PLACE ON THE GROUND THAT IT DOES NOT FORM INTEGRAL PART O F THE PORT. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION T HAT THE COMMISSIONER OF INCOME-TAX(A) HAS RIGHTLY DECIDED THE ISSUE IN FAVO UR OF THE TAXPAYER. THIS TRIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A). ACCORDINGLY, THE SAME IS CONFIRMED. 7. THE TAXPAYER HAS FILED CROSS OBJECTION ONLY TO SU PPORT THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A). ADMITTEDLY, NO INDEPENDENT ISSUE IS RAISED IN THE CROSS OBJECTION. THEREFORE, THIS TRIB UNAL IS OF THE CONSIDERED OPINION THAT THE CROSS OBJECTION IS NOT MAINTAINABLE . ACCORDINGLY, THE SAME IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE TAXPAYER ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DECEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 14 TH DECEMBER, 2012 PK/- 5 ITA NO. 584/COCH/2011 CO 38/COCH/2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH