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2015 (6) TMI 593

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..... shelters qualify for deduction of section 80IA of the Act we hold that the ld. CIT(A) is correct in holding the assessee's entitlement for deduction u/s 80IA of the Act. - Decided in favour of assessee. - ITA Nos. 1388 to 1392/Kol/2012 - - - Dated:- 10-3-2015 - Mahavir Singh, JM And Shamim Yahya, AM,JJ. For the Appellant : Shri P Mukherjee, JCIT For the Respondent : Shri J P Khaitan, Sr. Adv. ORDER Per Shamim Yahya, AM These appeals filed by the revenue are directed against the orders of ld.CIT(A)-XII, Kolkata for the concerned assessment years. Since the issues are common and connected and the appeals were heard together these are being disposed of by this common order for the sake of convenience. 2. One common issue raised in all the appeals is that whether depreciation of hoardings is to be allowed @ 100% or 50% as it was used for less than 180 days. 3. We have heard both the counsel and carefully perused the records. The ld. Counsel of the assessee submitted that the issue involved is duly covered by the decision of the Tribunal in assessee's case for A.yrs.2004-05 and 2005-06 in ITA Nos.1054 1055/Kol/2008 vide order dated 30.06.2009. The l .....

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..... rned Departmental Representative is a representative of the Assessing officer. He cannot dispute a fact, which is accepted by the Assessing Officer himself, therefore, when the Assessing Officer has accepted the user of the cylinders, the learned DR cannot dispute it. In view of the legal position and the facts as discussed above, we hold that the assessee is entitled to 100 per cent depreciation on gas cylinders purchased and used during the year under consideration amounting to ₹ 15,32,092/- Ground Nos.1,2 3 of the assessee's appeal are allowed. The CIT(A) granted relief by allowing 100% not as treating the expenditure as revenue in nature as claimed by the revenue in its appeal ground. The ratio decided by Hon'ble ITAT, Jabalpur Bench appears to be applicable in the assessee's case. Respectfully following the decision of the Hon'ble ITAT Jabalpur Bench we uphold the order of the ld. CIT(A) on this issue and dismiss the revenue's ground of appeal on this issue. 3.1. Since the aforesaid issue has been decided in favour of the assessee by the Tribunal in assessee's own case and it is not the case of the revenue that the above decision has .....

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..... the Tribunal for A.Yr. 2005-06 in ITA No.1055/Kol/2008 dated 30.06.2009. Against the above order revenue is in appeal before us. 6. We have heard both the counsel and carefully perused the records. The ld. Departmental Representative submitted that assessee is not at all eligible for deduction u/s 80IA of the Act on bus shelters and foot over bridges. The ld. DR submitted that as in this case it is not the case that the assessee has gained any profit or gain from the said business upon which deduction u/s 80IA of the Act is being claimed. The ld. DR submitted that it is not the case that any toll/fee is being charged for the use of foot over bridges or bus shelter for which deduction u/s 80IA of the Act is being claimed. The ld. DR submitted that the assessee is earning income by way of advertising on the foot over bridges and bus shelters which is the subject matter of assessee's claim of deduction u/s 80IA of the Act. The ld. DR submitted that the income on account of advertisement cannot said to be an income derived by an undertaking from the business of infrastructure development. Hence he submitted that the assessee cannot be allowed deduction u/s 80IA of the Act. Th .....

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..... integral part of highway and development infrastructure. For the purpose of high way system the building of the bus shelters are functional necessity and these are inextricably connected with the infrastructure required for highway. Without bus shelters the smooth movement of the vehicles and the operation of the vehicles through the high way shall not be of desired level. Thus the bus shelters are functionally necessary part and parcel of the highway infrastructure. By holding so we find that the ld. CIT(A) has rightly allowed the appeal of the assessee on this issue. We uphold the same and dismiss this ground of appeal taken by the department. 7.1. The ld. Counsel further submitted that the above said order of the Tribunal had been appealed against by the department in the Hon'ble High Court and the Hon'ble Calcutta High Court has not yet reversed the decision of the ITAT. Hence he submitted that the Tribunal's orders should be sustained. The ld. Counsel further submitted that the issue involved is covered in favour of the assessee by the decision of the Tribunal in the case of DCIT vs Selvel Advertising Pvt. Ltd. for A.Yrs. 2006-07 to 2008-09 vide ITA Nos.657 to .....

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..... High Court has upheld ITAT's decision holding that the assessee was entitled to deduction u/s 80IC of the Act by treating the transport and interest subsidy as part of the business profit. Accordingly ld. Counsel of the assessee submitted that assessee's claim of deduction u/s 80IA of the Act cannot be disallowed. 8. We have carefully considered the submissions and perused the records. We find that the issue on merits as to whether the assessee is entitled to deduction u/s 80IA of the Act for construction of foot over bridge as well as bus shelter is covered in favour of assessee by the decision of the Tribunal and the Hon'ble Calcutta High Court as referred in the submissions of the ld. Counsel of the assessee. The Tribunal in assessee's own case as well as in the case of DCIT vs Selvel Advertising Pvt. Ltd. (supra) has held that bus shelters and foot over bridges should be considered as part of the infrastructure facility for claiming deduction u/s 80IA of the Act. This issue was also supported by the decision of the Hon'ble Calcutta High Court in the case of Selvel Advertising Pvt. Ltd. wherein the Hon'ble High Court has upheld ITAT's decision qua .....

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..... f status was not taken by the Department in terms of section 253(2) of the Act. No leave was obtained to urge the ground in regard to the status as regards the liability to tax. The Tribunal erred in law in setting aside the findings given by the Appellate Assistant Commissioner that the assessee was a separate entity and the assessment made in the case of the assessee should be treated as substantive. 8.3. Thus from the above we hold that the issue which was not the basis of disallowance by the AO and the same was not the subject matter of consideration by the ld. CIT(A) and the same was also not the subject matter of the ground of appeal taken before ITAT the issue now being raised by the ld. DR need not be adjudicated by us. Hence on the issue as to whether foot over bridges and bus shelters qualify for deduction of section 80IA of the Act we hold that the ld. CIT(A) is correct in holding the assessee's entitlement for deduction u/s 80IA of the Act. Accordingly this ground of appeal raised by the revenue stands dismissed. 9. In the result these appeals filed by the revenue stand dismissed. Order pronounced in the court on 10.03.2015. - - TaxTMI - TMITax - Incom .....

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