M/S. RASAYANA HOTEL,NEW DELHI vs. ITO, UTTRAKHAND

PER V.P. RAO, J.M.:

This appeal by the assessee is directed against the order dated 28.02.2017 of CIT(A) for the assessment year 2010-11.The assessee has raised following grounds : “1. That on facts and circumstances of the case, the order passed u/s 153C by Ld. CIT(Appeal) is bad in the eyes of law and on facts. 2. On the facts and under the circumstances of the case the order of AO is bad in law as no satisfaction u/s 153C of the Act has been recorded by the AO of search person before handling over the material pertaining to the assessee.

Tribunal in assessee’s own case for the assessment year 2010-11 vide order dated 11.10.2017. Thus, he has pleaded that this issue is covered in favour of the assessee by the decision of this Tribunal in assessee’s own case and therefore, the claim of the assessee may be allowed.

“9. I have heard the rival contentions and perused the facts of the case. I have also gone through the cited decisions and of the considered opinion that the appeal of the assessee deserves to beallowed for the following reasons: a) Assessee is registered under the Sana Act, as is evident from page 60 of the PB. The hotels registered under the Saria Act are exempt from obtaining certificate from the Pollution Control Board. b) Further, the Uttarakhand High Court has restored the matter to the Assessing Officer to verify whether the defacto assessee in that case was taking care of environment or not. The relevant observations of the Uttarakhand High Court at para 36 and 37 in the case of Anchal Hotels are as under: “Even regarding the sites of the activities, we would think 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 proximity 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 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 afford opportunity to all the Assessees and pass fresh orders taking note of the observations, which we have made. “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-lC will not fulfilled.” c) From the images of hotel annexed at paper book pages 37 to 46 it is abundantly clear that the hotel of the assessee was in direct proximity with nature. Hence the observation of the Hon’ble Uttarakhand High Court in Anchal Hotels [supra] completely fulfilled in the present case. Further, assessee in his submissions before the Id. CIT(A), copy placed in paper book at pages 1 to 11 pointed out the following facts. i) The area wherein the hotel is located is a beautiful terrain. ii) Hotels is clearly approved by Tourism officer and this fact is not controverted either by the Assessing Officer or by the Id. CIT(A). iii) It has not even been shown that the assessee was required to specifically obtain certificate from the Pollution Control Board or which has been obtained by other hotels and not by the assessee. iv) Assessee has used water and electricity effectively. For this purpose, assessee has used CFL for lighting purpose and solar heaters for heating water. All these things conserve electricity. v) Assessee has taken various measures to reduce the generation of waste and recycle the waste for its reusability. Revenue has allowed all the expenses in respect of these activities. vi) Sufficient rain water harvesting measures are taken by the hotel for efficient utilisation of rain water. vii) Hotel is situated in a hilly area and has created employment in that area due to which the area has become economically viable. d) In view of the above facts and circumstances of the case, the Id. counsel for the assessee has contended that the hotel fulfils al the conditions of eco-tourism. 10. In that view of the matter, I am of the considered view that the assessee fulfils all the conditions and hence benefit of section 80IC are hereby

allowed to the assessee. The Assessing Officer is directed to allow the deduction amounting to Rs. 43,59,476/- u/s 80IC of the Act.”