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2022 (1) TMI 1053 - CALCUTTA HIGH COURTDeduction u/s.80IA - whether Assessee operating a multipurpose berth and not developing and/or operating and maintaining a port as required under the act? - HELD THAT:- What is important is the substance of the letter and the agreement and not the form. It may be true that the port has issued Circular No. 10 of 2005 stating that the concerned port authorities have to issue a certificate since the definition of port stood amended and it was made as an inclusive definition to mean structures at the port for storage, loading and unloading etc. If AO had applied his mind and read the letter and the agreement in conjunction he should have arrived at a conclusion that the right granted to the assessee was an exclusive right to maintain the facility and undoubtedly the facility is meant for storage, loading and unloading and would fall within the definition “of port”. CIT(A) for the earlier assessment year 2003-2004 which is the first year when deduction under Section 80-IA was claimed has done a thorough factual examination and granted relief to the assessee. Thus the order passed by the CIT(A) was challenged before the Tribunal and the Tribunal by order dated 30th October, 2007 dismissed the appeal of the revenue and the assessing officer has also given effect to the order and allowed deduction under Section 80-IA for which is the first year in the period of ten years. It goes without saying if the assessee has been granted the benefit for the first year the assessing officer should take a consistent stand in the subsequent years unless there are any other change in circumstances warranting a different decision. In the case on hand, there is nothing on record that there was any change in the situation. We are of the considered view that the letter and the agreement which were produced by the assessee is undoubtedly a certificate issued by the port authorities and would satisfy the requirement in Circular No. 10 of 2005. The Tribunal on its part also re-examined the factual position and noted the decision in assessee’s own case for the assessment year 2003-2004 while grating relief to the assessee. From the above factual position it is evidently clear that the Tribunal rightly rejected the revenue’s appeal and confirmed the order passed by the CIT(A) granting relief to the assessee. - Decided in favour of assessee.
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