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Income Tax Appellate Tribunal, “A” BENCH, CHENNAI
Before: SHRI SANJAY ARORA & SHRI G. PAVAN KUMAR
आदेश /O R D E R
PER G. PAVAN KUMAR, JUDICIAL MEMBER:
The Revenue has filed the appeal against the order of CIT(A) dated 13.05.2016 passed u/s. 143(3) and section 250 of the Income Tax Act
:-2-: I.T.A. No. 2432/Mds/2016
The following grounds are raised by the Revenue:
2.1 The CIT(A) erred in deleting the disallowance made u/s. 80IA(4) of the Act, on the ground that the assessee developed and operated Container Freight
Station (CFS) which can be taken as an 'Inland Port' specified in section 80IA(4).
2.2 The decision in the case of A.S. Logistics Pvt. Ltd., dated 23.12.2014 for the assessment year 2009-10 rendered by the Hon'ble Madras High Court and relied on by the CIT(A) has not been accepted by the Department and SLP has been filed before Supreme Court and the same is pending.
The Brief facts of the case that the assessee is in the business of Shipping and Transport and filed the E-Return of income on 25.09.2013 admitting the nill income. Subsequently, the case was selected for scrutiny and notice u/s. 143(2) and 142(1) of the Act was issued. In compliance to the notice, the Ld. AR appeared from time to time and furnished the Books of accounts and other details.
The Ld. AO on perusal of the financial statements observed that the assessee has claimed the deduction u/s. 80IA of the Act in respect of income earned from CFS division Rs. 2,57,84,288/- as the Container Freight Station (CFS) is a Inland Port which comes under the description of the infrastructure facility and the assessee submitted the certificate received from Custom Authority granting that the assessee company is appointed as custodian of the goods in aforesaid custom area for the :-3-: I.T.A. No. 2432/Mds/2016 purpose of Imports and Exports, But from the assessment year 2002-03, the structure at ports for storage, loading and unloading etc will fall under the definition of Port for the purpose of section 10(23G) and section 80IA of the Income Tax Act and the conditions are:
(i) The enterprises starts operating and maintaining the infrastructure facility on or after April 1st, 1995. (ii) The Return of income should be submitted on or before the due dates mentioned u/s. 139(1) of the Income Tax Act. (iii) Deduction should be claimed in the return of income filed by the assessee. (iv) The concerned Port Authority has issued a certificate that the said structure form part of the Port (Circular No. 10/2005 dated 16.12.2005).
The Ld. AO found that assessee company has complied three conditions and the assessee was asked to produce the certificate from Port Authorities and to satisfy the four condition. Since, assessee could not produce the certificate from port-authority in the assessment proceedings, the Ld. AO has denied deduction u/s. 80IA of the Act Rs. 2,57,84,288/- and added to the Returned income along with other additions and passed order u/s. 143(3) of the Act dated 22.03.2016 determining assessed income of Rs. 2,71,42,620/-
Aggrieved by the assessment order, the assessee company filed the appeal before Commissioner of Income Tax (Appeals). In the appellant proceedings, the Ld. AR argued the grounds and retreated the submissions of :-4-: I.T.A. No. 2432/Mds/2016 assessment proceedings. The income from Container Freight Station (CFS) being an infrastructure facility eligible for deduction u/s. 80IA of the Act. The Ld. CIT(A) in the assessee's own case for the assessment year 2012-13 in 16 dated 29.09.2015 allowed the claim. The appellate authority considered the submissions and certificate dated 27.04.2016 issued by the Tuticorin Port Trust for claim u/s. 80IA of the Act and relied on assessment year 2012-13 Appellate order and directed the Assessing Officer to allow the deduction u/s. 80IA.
Aggrieved the Revenue has filed appeal to Tribunal. The Ld. DR argued that the assessee has not complied the requisite condition u/s. 80IA and Ld. CIT(A) has erred in allowing the deduction u/s. 80IA of the Act and the decision of the Hon'ble Madras High court in the case of A.L. Logistics (P) Ltd., was not accepted by the department and SLP has been filed before the Supreme Court and prayed for set aside of order of CIT(A). Contra, the Ld. AR relied on the orders of the CIT(A) and Tribunal Order in the assessee's own case for the assessment year 2012-13.
We heard the rival submissions, perused the material on record and judicial decisions. The Ld. DR submitted that the Ld. CIT(A) has erred in deleting the addition, without considering the facts and the decision is challenged and SLP filed before the Hon'ble Supreme Court. Whereas, the Ld. AR produced the copy of order of Tribunal in dated 19.02.2016 for assessment year 2012-13 and certificate from V.O. Chidambaranar Port Trust, dated 27.04.2016 declaring the assessee's CFS as in land port. We find no change in facts, so that the present case is squarely covered by the decision of the co-ordinate bench in :-5-: I.T.A. No. 2432/Mds/2016 assessee's own case in for the assessment year 2012-13 the relevant part(page 2 para 3 and 4) of which reads as under:
"3. After hearing both the parties, we are of the opinion that similar issue came up for consideration before the Madras High Court in the case of CIT vs A.L. Logistics Pvt. Ltd., 374 ITR 609, wherein held as follows: “ As has been observed by the Tribunal, in the decision of the Delhi High Court in the case of Container Corporation of India Ltd., Vs. ACIT reported in 346 ITR 140 (Del), container freight station is held to be falling within the customs area attached to the port. As the work relating to customs is performed at these inland container depots/container freight stations, it would fall under the provision of Section 80IA(4)(i) Explanation (d) of the Income Tax Act. The plea of Mr. T. Ravikumar, learned standing counsel appearing for the Revenue that any other public facility on similar nature has been omitted with effect from 1.4.2002 will not make the case any different in view of the decision of the Delhi High Court (supra), which holds that CSF is part of an inland port and there is no specific exclusion of CSF in clause (d) of Explanation to Section 80IA(4)(i). Therefore, on fact when it has been found by the Tribunal that CSF is an infrastructure facility, we find no good reason to differ on fact. We respectfully agree with the Delhi High Court.”
4. In view of the above judgment of the jurisdictional High Court, the CIT(A) observed that the Container Freight Station developed and operated by the assessee constitute an ‘inland port’ which is defined as infrastructure facility u/s 80IA(4) and therefore, the assessee is entitled for deduction u/s 80IA(4) of the Act. Being so, in our opinion, there is no infirmity in the order of the CIT(A) and accordingly the same is confirmed. "
We Respectfully following the decision of the coordinate bench of Tribunal, upheld the order of CIT(A) and dismiss the Revenue appeal.
:-6-: I.T.A. No. 2432/Mds/2016 In the result, the appeal of the Revenue is dismissed. 8. Order pronounced on Friday, the 25th day of November, 2016 at Chennai.