Cochin International Airport Ltd, Cochin V. DCIT, Ernakulam

MA 10/COCH/2013

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9956 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 17-01-2013
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: V SATHYANARAYANAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NOS. 08-10/COCH/20 13 (ARSG. OUT OF I.T.A. NOS. 807/COCH/2008, 375/COCH/2 009 & 392/COCH/2010) ASSESSMENT YEARS : 2005-06, 2006-07 & 2 007-08 M/S. COCHIN INTERNATIONAL AIRPORT LTD., 4 TH FLOOR, GCDA COMPLEX, MARINE DRIVE, KOCHI-682 031. [ PAN:AAACC 9658B] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1(1), ERNAKULAM. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI V. SATHYANARAYANAN, CA REVENUE BY SMT. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 22/03/2013 DATE OF PRONOUNCEMENT 28/03/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THESE MISCELLANEOUS APP LICATIONS SEEKING RECTIFICATION OF OBSERVATIONS MADE IN PARAGRAPH 6 OF THE COMMON ORDE R DATED 04-05-2012 PASSED BY THE BENCH IN THE CASE OF THE ASSESSEE IN I.T.A. NOS . 807/COCH/2008, 375/COCH/2009 AND 392/COCH/2010 RELATING TO THE ASSESSMENT YEARS 2005-06, 2006-07 AND 2007-08 RESPECTIVELY. 2. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMI TTED THAT THERE IS A FACTUAL ERROR IN THE OBSERVATIONS MADE BY THE TRIBUNAL IN P ARAGRAPH 6 OF THE COMMON ORDER CITED ABOVE. HE SUBMITTED THAT THE TRIBUNAL WAS AD JUDICATING THE ISSUE RELATING TO ELIGIBILITY OF THE ASSESSEE TO CLAIM DEDUCTION U/S 80IA OF THE ACT IN PARAGRAPH 6 (REFERRED SUPRA). IN THIS REGARD, THE TRIBUNAL HAS REFERRED TO TWO TYPES DOCUMENT FILED M.P. NOS. 8-10/COCH/2013 2 BEFORE THE ASSESSING OFFICER, VIZ., AERODROME LICE NSE PUBLIC USE AND MEMORANDUM OF UNDERSTANDING (MOU) ON PROVISION OF FACILITIES I N THE AIRPORT. THE TRIBUNAL HAS MADE A SPECIFIC OBSERVATION THAT BOTH THE DOCUMENTS REFERRED ABOVE DID NOT FALL IN THE CATEGORY OF THE AGREEMENTS SPECIFIED IN CLAUSE (B) OF SEC. 80IA(4) OF THE ACT, VIZ., THE AGREEMENT FOR DEVELOPING OR OPERATING OR MAINTAINI NG OR DEVELOPING, OPERATING AND MAINTAINING A NEW INFRASTRUCTURE FACILITY. ACCORD INGLY, THE TRIBUNAL SET ASIDE THIS ISSUE WITH THE DIRECTION THAT THE RELEVANT AGREEMENT MAY BE FURNISHED TO THE ASSESSING OFFICER. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAD ALSO FURNISHED A COPY OF AGREEMENT ENTERED WITH AIRPORT AUTHORITY OF INDI A BEFORE THE TRIBUNAL AND THE OBSERVATIONS MADE BY THE TRIBUNAL GIVES A MEANING T HAT THE SAID AGREEMENT WAS ALSO CONSIDERED AS AN AGREEMENT FOR PROVISION OF FACILIT IES. ACCORDINGLY, THE LD. AR SUBMITTED THAT THERE IS SOME FACTUAL ERROR IN THE O BSERVATION MADE BY THE TRIBUNAL WHICH NEEDS CORRECTION. 3. THE LD. DR, HOWEVER, SUBMITTED THAT THE TRIBUNAL DID NOT GIVE THE FINAL FINDING WITH REGARD TO THE ELIGIBILITY OF DEDUCTION U/S. 80 IA OF THE ACT AND IT HAS ONLY REMITTED THE MATTER TO THE FILE OF THE ASSESSING OFFICER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE ORDER PASSED BY THE TRIBUNAL. WE HAVE ALSO GONE THROUGH THE PAPER BOOK FILED BY THE ASSESSEE AND WE DO NOT FIND A COPY OF THE AGREEMENT ENTERED WITH A IRPORT AUTHORITY OF INDIA, AS CONTENDED BY LD A.R. WHEN THIS FACT WAS BROUGHT OU T TO THE NOTICE OF THE LD A.R, HE SUBMITTED THAT THE SAID AGREEMENT MIGHT HAVE BEEN S UBMITTED SEPARATELY. HOWEVER, THE FACT REMAINS THAT THE TRIBUNAL RECORD DOES NOT HAVE A COPY OF THE SAID AGREEMENT, WHICH IS VERY MUCH VISIBLE ON A CAREFUL READING OF OBSERVATIONS MADE IN PARAGRAPH 6 OF THE ORDER (REFERRED SUPRA). 5. IN PARAGRAPH 6 OF THE ORDER, THE TRIBUNAL H AS REFERRED TO TWO TYPES OF DOCUMENTS, VIZ.,, AERODROME LICENSE PUBLIC USE AND MEMORA NDUM OF UNDERSTANDING (MOU) ON PROVISION OF FACILITIES. IN THE SUBSEQUENT LINES O F THE SAME PARAGRAPH, THE TRIBUNAL HAS M.P. NOS. 8-10/COCH/2013 3 LISTED OUT THE DETAILS OF MOU ON PROVISION OF FACIL ITIES, WHICH WERE REFERRED TO BY IT IN THE EARLIER PART OF THE PARAGRAPH, VIZ., (A) AGREEMENT WITH AIR INDIA FOR GROUND HANDLING (B) MOU WITH BPCL FOR FUELING OPERATIONS AND LAND USE, (C) AGREEMENT WITH THOMAS COOK, ARTS (SIC . ATLAS) JEWELLERY, MULTI MEDIA, BHARTI AIRTEL, EIH LTD. HENCE THE TRIBUNAL DID NOT HAVE ANY OCCASION TO MAK E REFERENCE TO ANY OTHER DOCUMENT. ACCORDINGLY, IT MAY BE NOTED THAT THE T RIBUNAL HAS SPECIFICALLY OBSERVED AS UNDER:- WHAT IS CONTEMPLATED IN CLAUSE (B) IS THE AGREEMEN T FOR DEVELOPING AND/OR OPERATION OF INFRASTRUCTURAL FACILITY ENTERED WITH THE GOVERNMENT/GOVERNMENT BODY. SINCE, THE SAID AGREEMENT WAS NOT FILED BEFORE THE TRIBUNAL; THE ASSESSEE WAS DIRECTED TO FURNISH THE SAME BEFORE THE ASSESSING OFFICER IN THE SET ASIDE PROCEEDINGS. ACCORDINGLY, THE ASSESSEE IS ENTITLED TO FURNISH AL L RELEVANT INFORMATION AND EXPLANATION BEFORE THE ASSESSING OFFICER, WHO SHALL ALSO CONSID ER THEM WHILE EXAMINING THE ISSUE AFRESH. ACCORDINGLY, IN OUR VIEW, THERE IS NO FACT UAL ERROR AS CONTENDED BY THE ASSESSEE. HOWEVER, IN ORDER TO CLARIFY THE MATTER FURTHER, WE HEREBY ADD THE FOLLOWING SENTENCE TO THE END OF PARAGRAPH 6 OF THE ORDER (RE FERRED SUPRA), WHICH SHALL BE READ AS PART OF THE SAID ORDER. THE ASSESSING OFFICER SHALL EXAMINE THE MATTER AFR ESH AFTER CONSIDERING ALL THE MATERIALS AND EXPLANATIONS THAT IS AVAILABLE ON REC ORD AND THAT MAY BE FURNISHED BEFORE HIM BY THE ASSESSEE. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS PARTLY ALLOWED. PRONOUNCED ACCORDINGLY ON 28-03 -2013. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 28TH MARCH, 2013 GJ M.P. NOS. 8-10/COCH/2013 4 COPY TO: 1. M/S. COCHIN INTERNATIONAL AIRPORT LTD., 4 TH FLOOR, GCDA COMPLEX, MARINE DRIVE, KOCHI-682 031. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1( 1), ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, KOCH I. 4.THE COMMISSIONER OF INCOME-TAX, KOCHI 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN