TMI Blog2013 (6) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing authorities to know whether it was incurred for business purposes and not for other extraneous conditions." Thus the expenditure to PSAM has been wholly and exclusively incurred for the purpose of business is to be allowed as a deduction. In favour of assessee. - ITA No. 142/HYD/2013 - - - Dated:- 21-6-2013 - Shri Chandra Poojari And Smt. Asha Vijayaraghavan,JJ. For the Appellant : Shri A. V. Raghuram For the Respondent : Smt. T. H. Viajayalakshmi ORDER Per Asha Vijayaraghavan, J. M. This appeal preferred by the assessee is directed against the order of CIT(A)-IV, Hyderabad dated 27/03/2012 for the assessment year 2008-09. 2. Briefly the facts of the case are that the assessee company is engaged in the business of O M of ports and Marine services and thus earns income from the business of operation of ships. For the AY 2008-09 the assessee filed its return of income on 21/10/2008 disclosing its total income of Rs. 55,76,190/- arrived at after claiming deduction of Rs. 54,81,140/- u/s 80IA of the IT Act. The assessment was taken up for scrutiny and was completed u/s 143(3) vide order dated 24/11/2010 determining the total income at Rs. 1,34,93,930/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional evidence sought to be admitted during the appellate proceedings does not deserve admission. The CIT(A) held that the subsequent issuance of the above stated letter, as also the audit report, has been made only as an afterthought. The CIT(A) further held that since such evidence was not submitted during the course of assessment proceedings, so as to examine whether the facts of the assessee's case are identical to the case of M/s Oceans Sparkles Ltd., the assessee is not entitled to the benefit of decision of the Hon'ble ITAT therein, as it has not been established that the activities of the present assessee were identical. He further held that on the other hand it is clear that the assessee had executed the port operations only by virtue of a 'contract', which cannot be considered as an activity eligible for the purpose of section 80IA(4). Accordingly, he confirmed the disallowance made by the AO u/s 80IA of the act. 6. As regards the payment of Rs. 24,36,600/-, the CIT(A) observed that the assessee has not been able to establish the business contingency of such payments, despite the finding of the AO that it had already entered into a BIMCO agreement with OSL, which envi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is not in question." 8. We have heard the arguments of both the parties and perused the record. With respect to ground No. 1, 2 3, we find that the issue is squarely covered by the decision of the coordinate bench in assessee's own case for AY 2006-07 in ITA No. 697/Hyd/2010 order dated 30 th September, 2010 wherein it was held as follows:- "5. We have considered the rival submissions and also perused the material available on record. Admittedly, the assessee is a joint venture company of M/s. Ocean Sparkle Ltd. Assessee entered into an agreement with M/s. Ennore Port Ltd. for maintenance and operation. As rightly submitted by the learned representative for the assessee for the assessment year 2003-04 in ITA No.238/Hyd/2007, in the case of M/s. Ocean Sparkle Limited, after considering similar agreement with M/s. Ennore Port Ltd., this Tribunal, vide its order dated 18.7.2008, found that the assessee has complied with all the three conditions prescribed under S.80IA(4) of the Act. One of us, the Judicial Member, was a party to the order of the Tribunal dated 18.7.2008. This Tribunal after examining the agreement entered into with M/s. Ennnore Port Ltd. with similar terms an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal at Dahej, Gujarat: 1. Advise on the mitigation of risk associated with the marine operations. 2. Advise on procedures and practices for sake and secure operations. 3. Update and advise on the changes in the various international regulations and approved operating practices. 4. Advise and provide information on the adequacy of risk covers for the operations. B. In respect of the Marine Crafts deployed for operations at the Petronet LNG Ltd's captive terminal at Dahej, Gujarat: 1. Advise on the maintenance system and cycle of maintenance of the marine crafts. 2. Identification of yards for repair, maintenance and dry-docking of the marine crafts and assistance in negotiations. 3. Advise and provide the information on the availability of substitutes if required for the operations and assist in negotiation for acquisition or hire as the case may be." 11. We find that agreement dated 29/10/2004 with PSAM is purely advisory to provide information on certain things and does not include actually carrying out of any operations. The other agreement with BIMCO is Standard Ship Management Agreement, which is different from that entered with PSAM. The AO has not pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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