ACIT, NEW DELHI vs. M/S. CONTAINER CORPORATION OF INDIA LTD., NEW DELHI

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “B ”: NEW DELHI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA No. 1555/Del/2012 and 1363/Del/2012 (Assessment Year: 2006-07) ACIT, Vs. Container Cooperation of India Ltd, Circle-3(1), C-3, CONCOR Bhawan, Opp Apollo New Delhi Hospital, Mathura Road, New Delhi PAN:AAACC1205A (Appellant) (Respondent)

ITA No. 3960/Del/2010 (Assessment Year: 2006-07) Container Cooperation of India Ltd, Vs. ACIT, C-3, CONCOR Bhawan, Opp Apollo Circle-3(1), Hospital, Mathura Road, New Delhi New Delhi PAN:AAACC1205A (Appellant) (Respondent)

ITA No. 1364/Del/2012 (Assessment Year: 2007-08) ACIT, Container Cooperation of India Ltd, Vs. Circle-3(1), C-3, CONCOR Bhawan, Opp Apollo New Delhi Hospital, Mathura Road, New Delhi PAN:AAACC1205A (Appellant) (Respondent)

Revenue by : Ms. Rachna Singh, CIT DR Assessee by: Shri Kirshnan, Adv Shri V Raj Kumar, Adv Date of Hearing 28/11/2017 Date of pronouncement 23/02/2018

O R D E R PER PRASHANT MAHARISHI, A. M. 1. In this bunch of appeals two appeals have been filed by the revenue for Assessment Year 2006-07 in ITA No. 1363/Del/2012 and for Assessment Year 2007-08 in ITA No. 1364/Del/2012 which are delayed by 585 and 502 days respectively. The revenue filed these appeals on 21.03.2012. Page | 1

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 2. The ld CIT DR for condonation of delay made a details representation for both the years and her main argument were as under:- a. For Assessment Year 2006-07 it was submitted that order of the ld CIT(A) dated 02.06.2010 was communicated to Pr. CIT on 15.06.2010 for which time limit for filing of appeal before the coordinate bench expired on 14.08.2010. As the committee on Disputes (COD) approval is required which was refused on issues by minutes dated 18.02.2010 and subsequently, Hon'ble Supreme Court in Electronics Corporation of India Vs. Union of India 332 ITR 58 held that COD approval is not required was delivered on 17.02.2011. Further, the clarification from the Cabinet Secretariat was also passed on 12.12.2011 and therefore, pursuant to that appeal was filed on 15.03.2012. b. For Assessment Year 2007-08 it was submitted that order of the ld CIT(A) dated 19.08.2010 was communicated to Pr. CIT on 06.09.2010 for which time limit for filing of appeal before the coordinate bench expired on 05.11.2010. As the committee on Disputes (COD) approval is required which was refused on issues by minutes dated 18.02.2010 and subsequently, Hon'ble Supreme Court in Electronics Corporation of India Vs. Union of India 332 ITR 58 held that COD approval is not required was delivered on 17.02.2011. Further, the clarification from the Cabinet Secretariat was also passed on 12.12.2011 and therefore, pursuant to that appeal got filed on 15.03.2012. 3. Therefore, both the appeals are delayed. She submitted that revenue do not benefit from filing a late appeal which is delayed because of „sufficient cause‟ as the respective approval from the relevant authorities on issues was not received. Subsequently, on pronouncement of the decision of the Hon'ble Supreme Court, clarification from the Cabinet Secretary was received and hence, thereafter the department filed those appeals. She heavily relied on the decision of Hon'ble Supreme Court in case of the Collector Land Acquisition, Anantnag Vs. MST Katiji and others. She also Page | 2

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 submitted that there is no inaction or want of bona fides or negligence in filing the appeals and therefore, the delay should be condoned in the larger interest of justice. She further submitted that provision of law of limitation must be applied to all persons equally and uniformly. Further, the Govt. departments cannot take the decisions immediately and instantaneously but is required to follow hierarchical discipline for proper action. Therefore, comparatively a private citizen takes shorter time then the govt department. However, with respect to the govt of India it cannot be challenged that action is grossly negligent or pulpably indifferent in prosecuting the case. Therefore, the delay should be condoned. She further stated that revenue has acted with due and reasonable diligence in prosecuting the case. She further stated that application for condonation of delay could be rejected only for the want of bona fides or inaction or negligence. Not all these aspects are present in this appeal and therefore, the delay deserves to be condoned, as there is “sufficient cause‟ for delay in filing of these appeals. She further relied on the decision of Hon'ble Supreme Court in case of Manoharan Vs. Shivrajan and Others Civil Appeal No. 10581/2013 dated 25.11.2013 and submitted that power to condone the delay to the courts to enable them to do substantial justice to parties by disposing the cases on the merits. It was further submitted that liberal approach should be adapted for condonation of delay. She vehemently relied on the decision of Hon'ble Supreme Court State of Bihar Vs. Kameswar Prasad Singh 9 SCC 94 (2000). 4. The ld Authorised Representative vehemently opposed the condonation petition filed by the revenue. It was stated that registry has intimated to the revenue about the delay however, no condonation application have been filed. He referred to the submission of the ld CIT DR and submitted that authorisation for the Commissioner of Income Tax on 09.03.2012 submitted filing of the appeal whereas, that the COD approval was rejected on 19.11.2009. He further stated that in the authorisation u/s 253(2) copy of the minutes are referred but same were not enclosed. It was further stated that as decision cited by the ld CIT DR equally applied Page | 3

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 to the revenue where there is a gross negligence or inaction is proved from the date chart. He further stated that all the COD minutes, which are shown, are pertaining to appeal before the Hon'ble High Courts and not before the tribunal and are of earlier years. He therefore, submitted that no such proceedings in respect of impugned appeals were before COD. Hence, there is no question of denial of permission by the COD. He further stated that decision of the Hon'ble Supreme Court was rendered on 17.02.2011 but the appeals have been filed only on 21.03.2012 and for such a mammoth delay no „sufficient cause‟ is shown. He further stated that explanation stated are contradictory as per letter dated 09.03.2012 of the ld DR and letter dated 20.09.2013. He further submitted that the explanation of the COD permission not granted in earlier years cannot be the reason for not filing of an appeal in subsequent years. He vehemently referred to the decision of the Hon'ble Supreme Court in case of Electronics Corporation (supra) which is specifically on this point. He further submitted that the revenue does still not explain delay of 390 days out of the total delay. He therefore, stated that the filing of the above appeal do not deserve the condonation of delay. He vehemently relied on the decision of the Hon'ble Supreme Court in 348 ITR 7, Rajasthan High Court in 304 ITR 166, Delhi High Court 287 ITR 52 and Calcutta High Court in 279 ITR 339 stating that delay is not bona fide, afterthought and an attempt to take advantage of oversight by the revenue. He further referred to the order of the Hon'ble Delhi High Court in ITA NO. 1278/2010 in assessee‟s own case dated 31.08.2010 wherein, the appeal of the assessee was not admitted. He further referred to the decision of Hon'ble Delhi High Court in ITA No. 1533/2010 in assessee‟s own case dated 04.10.2010 whereon the similar circumstances appeal of the revenue was not admitted. He further referred to the decision of Hon'ble Delhi High Court in CIT Vs. GAIL in ITA NO. 86/2009 dated 13.02.2012 wherein, it was held that the decision of the Hon'ble Supreme Court in case of Electronic Corporation of India does not apply to the facts of the case holding that the matters which have been Page | 4

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 considered and decided by the committee of disputes and permission specifically denied cannot be reopened. He further submitted that revenue has not come out with clean hands and it is a sheer negligence on the part of the revenue. 5. The ld CIT DR in rejoinder vehemently opposed the arguments of ld AR submitting that the revenue has put complete facts on the records and therefore, it has come out with the clean hands. She submitted that assessee is trying to defeat the just cause of revenue by pointing out trivialities. She submitted that condonation of delay application is part of the appeal paper dated 09.03.2012 signed by the Commissioner of Income Tax. She further stated that all correspondance are placed which shows that what are the errors and correcting them placing the revised communication, orders, and letters. She further stated that letter dated 29.04.2010 clearly shows that wherever there are appeals dismissed by the courts for want of COD approval necessary applications may be filed where the COD has now permitted to pursue the appeal. She submitted that though the Assessment Year before the COD was not pertaining to Assessment Year 2006-07 but the matter and issue involved are identical. She further stated that letter dated 12.12.2011 is a general instruction as per clarification of Cabinet Secretariat as it applies to all the matters. 6. We have carefully considered the rival contentions. Admittedly, there is a considerable delay in filing of the appeal by the revenue. The Hon'ble Bombay High Court in notice of motion No. 891/2016 has held that it cannot be denied that revenue is one of the largest litigants and has to be a model and ideal litigation. Therefore, merely because an applicant is a state delay in filing appeals cannot be condoned without a proper explanation, which equally applies to the state. Therefore, if the revenue fails to show sufficient cause then obviously, the condonation of delay in filing of the appeal cannot be considered. The Hon'ble Bombay High Court also held that certain amount of latitude in cases where govt is a litigant, is not impermissible, as the state represents the collective cause of community and what ultimately suffers is public interest, necessitating Page | 5

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 adoption of pragmatic approach to do substantive justice. Hon'ble High Court also stated that the sheer and gross negligence on the part of the govt. in preferring appeals cannot be condoned as a routine or as a right of the govt and that too to unearth a cause which is already set at rest. A delay can hardly be explained by attributing it merely to the functioning of the govt and internal correspondences. In the light of the above view it is required to be examined that whether the delay caused in filing of the above appeal is for „sufficient cause; or not. Generally the time limit in litigation is mentioned for the general welfare that a period be notified to litigation and if it is kept alive beyond the such notified time it creates a chaos in judicial matters. Therefore, no party to the lis can be allowed to have unrestricted time limit for approaching the court. However, the law is not so strict that, if the litigants jumps beyond the time line is left without a recourse and suffers due to such elapse of time. Therefore, generally the judicial and quasi judicial functionaries are vested with inherent powers to condone the delays if „sufficient cause‟ is shown by the parties. The Hon'ble Supreme Court has laid down the guiding principles in Ram Lal Vs. Rewa Coalfields Ltd AIR 1962 H.C. 361 wherein, it is held that in construing section 5 of the Limitation Act it is relevant to bear in mind that the expiration of the period of limitation gives rise to a right in the hands of a decree holder to treat the decree as binding. The other consideration is that if sufficient cause for excusing delay is shown the direction is given to the court to condone the delay and admit the appeal. The Hon'ble Supreme Court in case of Collector Land Acquisition Vs. MST Katiji and others in 167 ITR 0471 has laid down the guiding principle holding that liberal approach is required to be adopted

“And such a liberal approach is adopted on principle as it is realized that : 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being Page | 6

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. --------------------------------------------------------------------------- 1." Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 3. " Every day's delay must be explained " does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. 6. It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 7. Further, it is to be noted that in that particular case the appeal was filed by State belatedly and the Hon‟ble Supreme Court decided condonation of delay. The court held that the expression, „sufficient cause‟ employed by the legislature is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of the justice that being the life purpose of the existence of the institutions of court. Coming to the latest decision of the Hon'ble Supreme Court in CIT Vs. Pheroza Framroze and Co. 392 ITR 626 (S.C.) in a case where the Hon'ble Bombay High Court refused to condone the delay of 14 days where no sufficient cause were shown the Hon'ble Supreme Court condoned the delay and directed the courts to decide the case on merits. In the light of the above discussion it is noted that revenue has given a detailed date Page | 7

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 chart wherein, a complete chronology of events shows that after the decision of the Hon'ble Supreme Court in case of Electronics Corporation (supra) and after the clarification of Cabinet Secretariat the revenue has preferred an appeal. No doubt there are certain time points where it can be said that more than required time then the other litigant has been consumed but such time gaps cannot be attributed to the inaction or want of bona fides on the side of revenue. We have also noted that there are some gaps in the assessment years on which COD permissions were not available. However, it cannot be said the issues involved in these appeals the matters were not placed before the COD. Furthermore, even after the decision of the Hon'ble Supreme Court a clarification from Cabinet Secretariat was sought. This itself shows that revenue was serious and acting bona fide. Further, the decision of the Hon'ble Supreme Court in case of State of Bihar Vs. Kameswar Siingh (supra) further reiterated that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. In the present case following the guidelines given by the Hon'ble Supreme Court we are of the view that delay in filing appeal by the revenue needs to be condoned. 8. As the ld AR has cited various decisions of the courts, firstly the reliance was placed on the decision of the Hon'ble Supreme Court in 348 ITR 7 , wherein, the Hon'ble Supreme Court refused to condone the delay of 427 days wherein neither the department nor the person in charge had filed an explanation for not applying for certified copy of the decision of the High Court within prescribed period. Further, the dates mentioned in the affidavit clearly showed that there was a delay at every stage and there was no explanation as to why such delay has occurred. In the present case before us the revenue has given a date wise details for each step which has caused this delay with logical reasoning. The second decision relied upon is of Hon'ble Rajasthan High Court in 304 ITR 166, in that particular case the appeal of the revenue was dismissed for the reason Page | 8

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 that the department has taken a decision to file the appeal at the belated hour that was not considered as sufficient cause. Therefore, the above decision relied upon also does not apply to the facts of the case. The ld AR also relied upon the Hon'ble Delhi High Court in 282 ITR 52 when the appeal is preferred by the assessee when constantly the assessee did not object to the order of the ld CIT(A) for about five years. The Hon'ble High Court held that tribunal was correct in refusing to condone the delay. In that particular case also there was no sufficient cause shown by the assessee. The another decision relied upon was of Calcutta High Court in 279 ITR 339 the revenue tried to justify the delay of 458 days in a very slip shod method and no responsible officer had taken the responsibility and the affidavit had been affirmed by an inspector in such a serious case, therefore the delay was not condoned. In that particular case more than two months have been taken for scrutinizing the paper and arrange the stamp paper by the department. More than 6 months passed for the Ministry of Law to wake up to inform that paper submitted were illegible. Therefore, the delay was not condoned for specific reason stated in para 5 of that order. Now coming to the decision cited in case of the assessee in ITA No. 1272/2010 dated 31.08.2010 in that particular case there was no approval of COD. Further, in ITA NO. 1533/2010 dated 04.10.2010 the issue was that in absence of COD the appeal was not admitted. Coming to the last decision of Hon'ble Delhi High Court in CIT vs. GAIL in ITA NO. 86/2009 dated 13.02.2012, wherein the Hon'ble High Court has held that if COD has refused the permission then appeal cannot be filed reviving those matters. In that particular case the COD had declined permission to prefer the appeal. In the present case the assessee himself contended that COD‟s non granting of permission is in earlier years as per para No. 6(d) of the synopsis dated 21.07.2014 of the assessee. Therefore, it could not be shown before us that any refusal by COD pertains to Assessment Year 2006-07 or 2007-08. In view of above facts we do not have any hesitation in condoning the delay of 585 and 502 days delay in both these appeals. Page | 9

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 9. Now coming on the merits of the case we first take up the appeal of the revenue in ITA NO. 1363/Del/2012 for Assessment Year 2006-07 wherein, following grounds of appeal are taken:- “1. The ld CIT(A) has erred on facts and in deleting addition of Rs. 1890214003/- made by the ld AO on account of disallowance of deduction by the assessee u/s 80IA on rolling stock. 2. The ld CIT(A) has erred on facts and in deleting addition of Rs. 815393/- made by the AO on account of disallowance of extra deprecation claimed by assessee on computer peripherals.”

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 16. The ld CIT DR relied upon the order of the ld Assessing Officer whereas, the ld AR relied upon the orders of the ld CIT(A). 17. We have carefully considered the rival contentions. The above issue has been decided by the Hon'ble jurisdictional High Court in CIT Vs. BSES Yamuna Power Ltd holding that computer accessories and peripherals are part of the computers and are entitled to depreciation @60%. In view of this we do not find any infirmity in the order of the ld CIT(A) and ground No. 2 of the appeal is dismissed. 18. In the result ITA NO. 1363/Del/2012 for AY 2006-07 preferred by revenue is dismissed. 19. Now we come to the appeal of the assessee for Assessment Year 2006-07 in ITA No. 3960/Del/2010. 20. The first ground of appeal is general in nature and therefore, same is dismissed. 21. Ground No. 2 and 3 of the appeal of the assessee are against the order of the ld CIT(A) confirming the disallowance of Rs. 483267454/- u/s 80IA in respect of income from inland container depots and container freight stations. 22. The ld AR submitted that the above issue is now squarely covered in favour of the assessee by the decision of Hon'ble Delhi High Court in assessee‟s own case in 346 ITR 140 for AY 2003-04 to AY 2005-06. The ld CIT DR relied upon the order of the ld lower authorities. 23. We have carefully considered the rival contentions and are convinced that the above issue is squarely covered in favour of the assessee in earlier years in the decision of Hon'ble Delhi High Court in 346 ITR 140 wherein, it has been held that inland container depots and inland ports i.e. CFS are inland ports within the meaning of section 80IA(4) as eligible infrastructure undertaking for deduction. The ld DR could not show us any change in the facts and circumstances of the case and therefore, respectfully following the decision of the Hon'ble Delhi High Court ground NO. 2 and 3 of the appeal of the assessee deserves to be allowed. Consequently the order of the lower authorities are reversed the ld AO is Page | 11

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 directed to grant deduction to the assessee of Rs. 483267454/- to the assessee u/s 80IA of the Act. 24. Ground No. 4 of the appeal is with respect to the disallowance of the claim of Rs. 24619447/- of productivity linked incentive confirmed by the ld CIT(A). The ld Assessing Officer disallowed the above claim holding that the assessee has made a provision of Rs. 2.46 crores whereas the actual payment in subsequent years is only Rs. 2.42 crores and the above expenditure is unascertainable. The ld CIT(A) confirmed the above disallowance for the reason that the computation of the claim was not established scientifically by the appellant and further there is difference in the provision and the amount paid. 25. The ld AR vehemently contested that productivity linked insurance is paid to the employees by the reasons independently and for which the amount is debited in profit and loss account on ascertainable basis with accounting principle and laid down standard. In fact the expenditure is pertaining to the year ended on March 2006 and payment of the same has been made in September 2006. He further submitted that total provision was made of Rs. 2.46 crores whereas, the assessee has paid in subsequent year the sum of Rs. 2.42 crores, this itself shows that there is a difference of just Rs. 4 lacs in the provision on accrual basis and crystallization of the payment. He therefore, submitted that such deduction is allowable to the assessee as employee cost. 26. The ld CIT DR relied upon the orders of the ld Assessing Officer. 27. We have carefully considered the rival contentions and also perused the orders of the lower authorities. The ld AR has submitted that in AY 2005- 06 the above issue was considered by the ld CIT, wherein, u/s 263 of the Act vide para No. 4 this issue is accepted that productivity linked payments are allowable to the assessee as liability is in present, quantifiable and not contingent. In view of this we allow the ground No. 4 of the appeal of the assessee. 28. The ground No. 5 of the appeal of the assessee is against the order of the ld CIT(A) in not giving proper direction to the ld Assessing Officer Page | 12

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 regarding disallowance of Rs. 20463681/- u/s 40a(ia) to allow the claim in Assessment Year 2005-06. 29. The brief issue involved in this appeal is disallowance u/s 40a(ia) was made in Assessment Year 2005-06 which is as per earlier law allowable in Assessment Year 2006-07, however, wit retrospective amendment made in that section now it is allowable in Assessment Year 2005-06 itself. The ld CIT(A) has set aside this issue to the ld AO with a direction to recompute the disallowance after making necessary verification. 30. The ld AR submitted that he should have made proper direction to rectify the order for Assessment Year 2005-06, the direction given by the ld CIT(A) are not clear in this aspect. 31. The ld CITDR vehemently contested that the ld CIT(A) does not have any power to give any direction for allowing the claim of the assessee in earlier year as that appeal is not pending before him. 32. We have carefully considered the rival contentions. It is admittedly the appeal for Assessment Year 2006-07 is pending before us whereas the disallowance was made in AY 2050-06. Undoubtedly, there is an amendment which is held by the Hon'ble Delhi High Court as retrospective in nature. However, we are duty bound to give direction with respect to the year for which the appeal is pending before us. Accordingly we direct the ld AO that if the tax has been deducted and deposited on the above disallowance in this year or has been paid after the due date of filing of the return for Assessment Year 2005-06 the claim may be allowed to that extent in AY 2006-07. Accordingly, ground No. 5 of the appeal is allowed with above direction. 33. Ground No. 6 of the appeal of the assessee is against charging of interest u/s 234A and 234B which is consequential in nature and therefore, in absence of any specific argument we dismiss the same. 34. In the result appeal of the assessee for AY 2006-07 in ITA NO. 3960/Del/2010 is partly allowed.

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 35. Now we come the appeal of the revenue in ITA NO. 1555/Del/2012 for Assessment Year 2006-07 challenging that the ld CIT(A) has erred in deleting the penalty u/s 271(1)(c) of the Act of Rs. 170954730/-. 36. The assessee has raised the following grounds of appeal in ITA NO. 3960/Del/2010 for the Assessment Year 2006-07:- “1. On the facts and in the circumstances of the case, the order passed by the Ld. CIT (Appeals) is bad both in the eye of law and on facts. 2. On the facts and in the circumstances of the case the Ld. CIT (Appeals) has erred in confirming the disallowance of Rs. 48,32,67,454/- u/s 80IA in respect of incomes from Inland Container Depots (ICDs)/Container Freight stations (CFSs) which are inland ports and hence, infrastructure facilities as defined in Explanation (d) to Section 0IA(4) and certified as such by the Central Board of Excise & Customs (CBEC), Ministry of Commerce and Industry, Ministry of Shipping etc. 3. On the facts and in the circumstances of the case the Ld. CIT (Appeals) has erred in ignoring the notifications, circulars, explanations, etc respect of ICDs/CFS being inland ports and as such eligible for deduction u/s 80IA. 4. On the facts and in the circumstances of the case the Ld. CIT (Appeals) has erred in confirming the disallowance of the claim amounting to ?2,46,19,447/- on account of productivity linked incentive (PLI) expenses ignoring the fact that the appellant had furnished complete details and the scientific basis for the computation of PLI payable for the year under appeal. 5. On the facts and in the circumstances of the case the Ld.CIT (Appeals) has erred in not giving proper direction to the Assessing Officer with regard to the disallowance of Rs. 2,04,63,681/- u/s 40(a) (ia).He ought to have directed the Assessing Officer to allow the claim in the Assessment Year 2005-06 by rectifying the assessment order for the Assessment Year 2005-06 in view of the amendment of section 40(a)(ia) with retrospective effect from Assessment Year 2005-06. 6. On the facts and in the circumstances of the case the Ld. CIT (Appeals) has erred in not considering Ground No. 9 relating to charging of interest u/s 234A and Ground No. 10 in respect of charging of interest u/s 234B. He ought to have given appropriate direction to the Assessing Officer in this regard.”

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 37. The ld AO has levied the penalty vide order dated 20.10.2010 on the claim of the assessee on the disallowance of deduction u/s 80IA as well as product linked incentive. 38. We have carefully considered the rival contentions and also perused the order of the ld AO as well as the ld CIT(A), who has deleted the penalty. In our order for Assessment Year 2006-07 as well as of the revenue both the impugned additions have been deleted on which penalty have been levied therefore, we find no infirmity in the order of the ld CIT(A) in deleting the penalty of Rs. 170954730/-. In the result appeal of the revenue is dismissed. 39. Now we come to the appeal of he revenue for AY 2007-08 in ITA NO. 1364/Del/2012 for the Assessment Year 2007-08:- “1. The ld CIT(A) has erred on facts and in deleting addition of Rs. 2714643551/- made by the AO on account of disallowance of deduction by the assessee u/s 80IA on rolling stock. 2. The ld CIT(A) has erred on facts and in deleting addition of Rs. 1092371/- made by AO on account of disallowance of extra depreciation claimed by assessee on computer peripherals.”

ACIT, Vs. Container Cooperation of India Ltd ITA No. 1555/Del/2012, 1363/Del/2012, 3960/Del/2010 and 1364/Del/2012 Assessment Year: 2006-07 and 2007-08 43. Ground No. 2 of the appeal is with respect to deprecation on computer peripherals @60% instead of 25% allowed by the ld AO. This ground is similar to ground No. 2 of the appeal of the revenue for AY 2006-07. 44. We have already dismissed that ground of appeal following the decision of the Hon'ble Delhi High Court. Therefore, for similar reasons we also dismiss ground No. 2 of the appeal. 45. In the result ITA No. 1364/Del/2012 for AY 2007-08 filed by the revenue is dismissed. Order pronounced in the open court on 23/02/2018. -Sd/- -Sd/- (KULDIP SINGH) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated:23/02/2018 A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi