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2013 (9) TMI 302 - AT - Income TaxDeduction u/s 080IA - Container Freight Station(CFS) not being structure situated "at Port" – Held that:- Relying upon the decision of Special Bench in the case of All Cargo Global Logistics Ltd. vs. DCIT [2012 (7) TMI 222 - ITAT MUMBAI(SB)], it was held that CFS owned by them are better placed as ICDs considered in the case of Container Corporation of India [2012 (5) TMI 260 - DELHI HIGH COURT] were located far away at the places like Jameshedpur, Jodhpur,Jaipur etc. The CFS were situated nearly 5 Kms away from the Port. In the present case also CFS of the assessee is situated only 15 Kms away from the Port. So for the grant of deduction under section 80 IA(4), as per decision of Special Bench in the case of All Cargo and decision of Delhi High Court in Container Corporation of India, it is not a condition precedent that CFS of the assessee should be situated at port. So, non- situation of the CFS of the assessee at port does not disentitle it from claiming deduction u/s. 80 IA(4). In the present case also the assessee has been provided with a certificate by JNPT that the assessee's CFS is an extended arm of the Port - Such certificate issued by JNPT was also withdrawn in those cases dealt by Special Bench - Such withdrawal by the JNPT was not considered as material by the Special Bench for denial of deduction under section 80IA(4). Moreover, in the certificate dated 31/3/2006, JNPT has clearly stated that assessee's CFS may be considered as an extended arm of the Port related activities in accordance with Circular No.133/95 dated 22/12/95 issued by Central Board of Excise & Customs, New Delhi, whereas in the so called withdrawal letter, which is highly relied upon by the revenue, it has no where been stated that how and on what basis the CFS of the assessee has suddenly ceased to be an extended arm of the Port. Moreover, Co-ordinate Bench in the case of Ayush Ajay Construction Ltd. vs. ITO, [2000 (7) TMI 225 - ITAT INDORE] while interpreting the provisions of section 80IA(4), even in the absence of agreement, on recognition of the work done has come to a conclusion that assessee was entitled to get deduction – Also, following observation has been made in the case, “the object of its insertion to the tax statute in the light of the budget speech of the Hon'ble Finance Minister and the above said judicial pronouncements, we would find that the legislature has given a fillip of deductions to those enterprises who engage themselves in developing, maintaining and operating any infrastructure facilities for economic growth of the nation as it was felt by the legislature that inadequate infrastructure was a key constraint of our economic progress. As held by the apex Court in the case of Bajaj Tempo Ltd. vs. CIT[1992 (4) TMI 4 - SUPREME Court], the provisions of promoting economic growth should be interpreted liberally and the restriction on it too has to be construed so as to advance the objective of the provisions and not to frustrate it.” – Decided in favor of Assessee. Further, the deduction for the years under consideration cannot be denied to the assessee on the ground that there is no provision for withdrawal of this deduction for the subsequent year for breach of certain conditions unless the deduction granted in initial A.Y.2004-05 is withdrawn. Such proposition is supported by the decision of Jurisdictional High Court in the case of CIT vs. Paul Brothers (1992 (10) TMI 5 - BOMBAY High Court). No contrary decision was cited by the other side. - Decided in favor of assessee.
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