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2015 (11) TMI 996 - ITAT MUMBAI

2015 (11) TMI 996 - ITAT MUMBAI - TMI - Deduction u/s 80IA(4) - whether the container freight station of the assessee is an inland port for the purposes of deduction u/s 80IA(4) ? - Held that:- The provisions of section 80IA(4), CBDT Circular, reply of the assessee dated 27/12/2011 mentioning CBDT Circular dated 23/06/2000 and 16/12/2005. Circular dated 16/12/2005 has done away with the requirement of agreement and the said circular was discussed by their lordship of the Hon’ble jurisdictional H .....

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oned) has been affirmed by Hon’ble jurisdictional High Court in CIT vs Continental Warehousing Corporation and All Cargo Global Logistic Ltd. (2015 (5) TMI 656 - BOMBAY HIGH COURT) by following Container Corporation of India Ltd. vs ACIT (2012 (5) TMI 260 - DELHI HIGH COURT) wherein held having regard to the provisions of the Customs Act, the communications issued by the CBEC as well as the Ministry of Commerce and Industry, the object of including "inland port" as an infrastructure facility and .....

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he Revenue is aggrieved by the impugned order dated 21/11/2013 of the ld. First Appellate Authority, Mumbai. The only ground raised in this appeal pertains to holding that the container freight station of the assessee is an inland port for the purposes of deduction u/s 80IA(4) of the Income Tax Act, 1961 (hereinafter the Act), relying upon the decision of the Tribunal in the case of All Cargo Global Logistics Ltd. (SB) & M/s Continental warehousing corporation. 2. During hearing of this appe .....

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ded that the impugned issue is covered by the decision of the Tribunal in the case of assessee itself (ITA No.273, 275, 943 & 944/Mum/2013) order dated 28/06/2013. Reliance was also placed upon the decision in 374 ITR 645 (Bom.) This factual matrix was not controverted by the Revenue. 2.2. We have considered the rival submissions and perused the material available on record. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the .....

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n of the Revenue that Ld. CIT(A) has erred in holding that the assessee s Container Freight Station (CFS) is covered by the decision of Special Bench in the case of All Cargo Global Logistics Ltd. & Others vs. DCIT, 137 ITD 237 and Continental Warehousing Corporation (Nhava Seva) Ltd., Raigad Vs. ACIT (order dated 31/8/12 in ITA No.7055/Mum/2011). It is further the grievance of the revenue that these decisions of Tribunal have not become final and this issue is pending before the Hon ble Jur .....

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r following observations: 13. The third issue pertaining to depreciation on UPS arises only in the asst. yr. 2005-06. The assessee had claimed depreciation on UPS @60 per cent whereas the AO had allowed it @25 per cent and on this basis, disallowance of ₹ 1,470 was made. The issue now stands covered by the judgment of this Court in the case of CIT vs. BSES Yamuna Power Ltd. (in IT Appeal No.1267 decided on 31st Aug., 2010) wherein it was held that the depreciation @ 60 per cent on such ite .....

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eding further it may be mentioned that assessee started claiming deduction under section 80 IA(4)(i) on CFS owned and operated by it w.e.f. A.Y.2004-05. It has been allowed such deduction for A.Y 2004-05 and 2005-06 and also for A.Y 2006-07. However, later on reassessment proceedings were initiated for A.Y 2006-07 and the impugned assessment order is result of such reassessment proceedings. During the course of these appeals it was informed to us that department has initiated reassessment procee .....

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in ITA No.7055/Mum/2011). The decision of Special Bench in the case of All Cargo Global Logistics Ltd. has been rendered in favour of assessee by following the decision of Hon ble Delhi High Court in the case of Container Corporation of India Ltd. (CCI) vs. ACIT, 346 ITR 140, wherein question of deduction under section 80 IA(4)(i) in respect of Inland Container Depot (ICD) was considered by Hon ble Delhi High Court. It is observed by Special Bench in its decision that the case of CFS is similarl .....

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S is similar situated in the sense that both carry out similar functions, i.e., ware housing, customs clearance, and transport of goods from its location to the seaports and vice-versa by railway or by trucks in containers. Thus, the issue is no longer res-integra. Respectfully following this decision, it is held that a CFS is an inland port whose income is entitled to deduction u/s 80-IA(4). Question No. 2 is answered accordingly. (Emphasis ours) 9. The history of legislation leading to notify .....

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Circular No.772 dated 23/12/1995, 235 ITR St.35,67 in para 43.2 has explained the inclusion of inland waterways and inland ports . The definition of infrastructure facility is as under:- 43.2 The Government has identified national waterways, the fourth mode of transport, for improving the transport infrastructure in the country. Inland waterways and inland ports play a vital role in improving a country s infrastructure. With the objective of improving the transport infrastructure, the Act has i .....

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hen and improve country s infrastructure in general and transport infrastructure in particular. Inland ports facilitate the transport infrastructure by taking care of the transport of customs cleared goods meant for export from ICD/CFS to the sea port and the imported goods directly from sea port to ICD/CFS where then can be customs cleared. The entire section was recasted by Finance Act 1999 w.e.f.. 1/4/2000 and even after several amendments made to that section, inland ports continue to enjoy .....

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13. Subsequently, the Board issued Circular No.793 dated 23/6/2000, 244 ITR (St) 103 postulated as follows: The Board has received various representations seeking clarification whether structures at ports for storage, loading and unloading etc., will fall under the definition of port for the purposes of sections 10(23G) and 80-IA of the Incometax Act, 1961. 2. The Board has considered the matter and it has been decided, that such structures will be included in the definition of port for the purp .....

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tion on whether structures at ports for storage, loading and unloading etc. would fall within the definition of Port, inter-alia, for the purpose of section 80 IA of the Act. The Board clarified that such structure would be included in the definition of Port for the purpose of section 80 IA of the Act, subject to the fulfillment of the condition that the Port Authority must issue a certificate that the structure form a part of the Port; that such structures had been built under the BOT or BOLT s .....

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for the purposes of section 80 IA of the Act, includes structures at Ports for storage , loading and unloading etc., subject to fulfillment of the conditions already noted earlier, would apply to assessment year 2001-02 and any earlier assessment year. However,. From assessment year 2003-03 onwards, the condition requiring that structure should have been completed under a BOT or BOLT scheme and that there should be an agreement for transfer of the facility to the competent authority on the expir .....

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me-tax Act, 1961, includes structures at the ports for storage, loading and unloading etc., if the following conditions are fulfilled: (a) the concerned port authority has issued a certificate that the said structures form part of the port, and (b) such structures have been built under the BOT or BOLT schemes and there is an agreement that the same would be transferred to the said authority on the expiry of the time stipulated in the agreement. This definition is applicable to assessment year 20 .....

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No. 16/20/97-Infra-I dated 17/09/1998 issued by Ministry of Commerce-Infra-I section to set up CFS at Dronagiri Node, Navi Mumbai, subject to certain conditions. Copy of this letter is filed at page-6 of the paper book. (ii) Vide letter dated 19/3/2003 Commissioner Customs Export, Nhava Seva, Ministry of Finance (Department of Revenue) has issued notification No.4 of 2003 vide which CFS of the assessee is declared as Customs area for the purpose of storage, stuffing/destuffing and clearance of .....

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e, container freight station, United Linear Agencies of India (P) Ltd., Sector -8, Dronagiri Node, as Customs Area for the purpose of transport of import and export cargo. Copy of this notification has been placed at page 9 of the paper book. (iv) On the same date notification No.6/2006 has been issued by the same authority and it has been declared that assessee will be custodian of the goods till they are cleared for the home consumption or/ are warehoused or/ are transshipped under the provisi .....

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Income Tax Department, copy of this application is placed at Page-15 & 16 of the paper book. In the said application it was submitted by the assessee that its CFS is working at its full capacity in the first year and assessee is planning for further expansion. The Commissioner of Customs has declared CFS as Customs Area under section 8 of the Customs Act, 1962. The assessee is claiming exemption under section 80 IA for its CFS. As a result of various representations made by the Association, .....

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s submitted that the said stipulation for transfer of facility has been withdrawn by Finance Act 2001. Reference to Circular No.133/95-Custom dated 22/12/1995 was also made in which in para No.2 it was mentioned generally, CFS is taken to be an extended arm of port and it was submitted that a certificate be issued. Copy of this letter is filed at page 15-16. (vii) Copy of Certificate No.JNP/CM(O)/2006/830 dated 31/3/2006 issued by JNPT is placed at pages 18 of the paper book. The text of which i .....

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perations with effect from March 2003 vide Customs notification No. 4/2003 dated 19/03/2003. The above said CFS is situated on land that does not belong to the Port. It is further stated that the Container Freight Station of M/s. United Liner Agencies Pvt. Ltd. (ULA) has not been built under BOT or BOLT scheme and there is no agreement that the said CFS would be transferred to JNPT on the expiry of the time stipulated in the agreement as per the circular no.793 dated 23.06.2000 issued by the Inc .....

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ce of the deduction as in the opinion of revenue assessee is not entitled to such deduction and the reasons as stated in the assessment order for making disallowance of the deduction are as under: (1) Deduction under section 80 IA is available only to the structures situated at the ports and assessee s CFS being not situated at Port is not eligible for deduction. (2) Certificate issued by JNPT dated 31/12/2006 clearly stated that assessee s CFS was not located at the Port s land, therefore, the .....

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ven according to Circulars the claim of the assessee cannot be accepted. (4) Subsequently, in the letter obtained from JNPT dated 14/12/2011 it was made clear that the said certificate dated 31/3/2006 was subsequently withdrawn for preventing its misuse and thus it was clear that assessee was misusing the letter dated 31/3/2006 issued by JNPT. The aforementioned certificate issued on 31/3/2006 was withdrawn by JNPT vide letter dated 5/10/2007 with the following observations: It is hereby brought .....

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d that the assessee is not entitled to claim deduction under section 80IA(4), such as (i) Letter dated 8/12/2011 - CFS structure of the assessee does not form part of the JNPT i.e. Port; (ii) letter dated 29/11/2011 vide which it was clearly mentioned that distance of the assessee s CFS from JNPT is 15 Kms. away from the Port and they have also mentioned that assessee s CFS is providing the services of storage, stuffing, destuffing and clearance of import and export of goods. (6) Following obser .....

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eference have also been received as to whether Inland Container Depots (ICDs) and Container Freight Station (CFS) can be termed as Inland Ports and thereby classified as infrastructure facility under Section 80IA(4)(ii) of the Income Tax Act, 1961. In this context, I am further directed to convey that the Board has considered the same and it has been decided that and ICDs and CFS are not ports located on any inland waterway, river or cannal, and thereby they cannot be classified as inland ports .....

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5/Mum/2011, C Bench Mumbai, copy placed at page 17 to 27 of the paper book. (c) Container Corporation of India Ltd. vs. ACIT, 346 ITR 140(Del) 18. Considering all the aforementioned decisions Ld. CIT(A) has held that CFS of the assessee is an Inland Port within the meaning of explanation (d) to section 80 IA(4)(i) of the Act and Inland Port is one of the infrastructure facility which is eligible to claim deduction under section 80 IA(4). However, the assessee did not fulfill other conditions spe .....

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he decisions relied upon by the assessee it has been held that there is no requirement to enter into an agreement as provided in clause (b) of section 80 IA(4)(i) of the Act. Therefore, for want of fulfillment of condition laid down in section 80 IA(4)(i)(b) Ld. CIT(A) has decided the issue against the assessee. 19. The assessee in its appeal is agitating the decision of Ld. CIT(A) regarding non-fulfillment of condition laid down in subclause( b) of section 80 IA(4)(i). The department in its app .....

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obtained by the assessee from Finance Ministry, Commerce Ministry and JNPT. The word approve as per Oxford Dictionary means official accept as satisfactory . The word approval means the action of approving. As per Black s Law Dictionary the word approve is defined as to give formal sanction; to confirm authoritatively . Thus it is the case of Ld. AR that approval means that there is an agreement. He in this regard referred to the letters issued by Finance Ministry, Commerce Ministry and JNPT, co .....

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rnment, State Government, Local Authority or any other Statutory Authority. The amendment was made applicable from assessment year 2002-03 onwards. It was further argued by Ld AR that as per section 2(b) of the Contract Act an agreement does not need to be in writing. As per provisions of section 164A oral trust are taxed at maximum marginal rate. Even according to section 194C tax is liable to be deducted even in a case where contract is not reduced into writing. 22. Ld AR further argued that a .....

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rt that either in section 80HH or in section 80J there is no provision for withdrawal of special deduction for the subsequent years for breach of certain conditions. Hence, unless relief granted for A.Y 1980-81 was withdrawn, ITO could not have held the relief for the subsequent years. For holding so their Lordship have followed the decision of Hon ble Gujarat High Court in the case of Saurashtra Cement and Chemical Industries Ltd., 123 ITR 669. Reference was also made to the following observati .....

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3. It was submitted that the grant of deduction is squarely covered in favour of the assessee by the decisions relied upon by the assessee before Ld. CIT(A) and various circulars issued by CBDT and it has wrongly been disallowed by Ld. CIT(A) simply on the basis of non-existence of agreement. Ld. AR submitted that the facts of the assessee s case are similar to the facts of the cases in which the assessees owning CFS have been allowed similar deduction by the Special Bench. Reference was made to .....

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D.R submitted that AO was right in holding that assessee s structure of CFS not being situated at Port is not eligible for deduction under section 80 IA(4) of the Act. He submitted that in the circulars the word used by CBDT are at Port , therefore, even according to those circulars assessee s CFS being situated at a distance of 15 Kms from the main port cannot be considered to be eligible for deduction under section 80 IA(4). Ld. D.R submitted that certificate granted by JNPT was subsequently .....

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that the arguments raised by Ld. AR regarding consistency also does not support the case of the assessee as the principle of consistency rest upon doctrine of resjudicata which according to the well established law is not applicable to Income tax matters. Reference was made to the decision of Hon ble Supreme Court in the case of New Jahangir Vakil Mill Company Ltd. vs. CIT 49 ITR 137 (SC), wherein it was held by the Court that revenue can reopen a question obviously decided if fresh facts come t .....

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he earlier years income, without reopening those years, for assessing the nature of the current years income and reliance was placed on the decision in the case of M.M. Ipoh vs. CIT, 67 ITR 103(SC),Dwarakadas Kesardeo Murarkha vs. CIT, 44 ITR 529. Reference was also made to the decision of Hon ble Bombay High Court in the case of Baijnath Brijmohan & Sons Ltd. vs. CIT, 161 ITR 234, wherein their Lordships have observed as under: An assessment for a particular year is final and conclusive bet .....

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ry, if no fresh facts were placed before the Tribunal giving the later decision and if the Tribunal giving the earlier decision has taken into consideration all material evidence. There is also a further limitation, namely, that the effect of revising a decision in a subsequent year should not lead to injustice and the court must always be anxious to avoid injustice to the assessee. In the present case, we have to bear in mind that the authority which changed its stand was not the Income-tax App .....

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D.R further referred to the decision of ITAT Mumbai Bench in the case of ACIT vs. Hitesh S. Bhagat order dated 15/5/2013 in ITA No.6586/Mum/2010, wherein following aforementioned decision of Hon ble Supreme Court in the case of New Jahangir Vakil Mill Company Ltd. vs. CIT(supra) it was held that doctrine of res-judicata is not applicable. Ld. DR also referred to the decision of Hon ble Andhra Pradesh High Court in the case of B.R. Construction, 73 Taxmann 473(AP)(FB) to contend that precedent c .....

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CIT, 121 ITD 596, wherein it was held that judgment of non-jurisdictional High Court would prevail upon the Special Bench decision on the basis of principle that High Court is above the Tribunal in judicial hierarchy. Ld. DR also relied upon the decision of K.P. Choudhary vs. State of Madhya Pradesh, 1967 AIR 203(SC) to contend that contract with the Government should be executed in the manner provided in Article 299(1) of the Constitution of India and unless it is so executed it will not be a b .....

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ase of AO that assessee s CFS not being structure situated at Port is not eligible for deduction under section 80IA(4) of the Act. According to A.O even in the circulars issued by CBDT the stress is on the structure situated at Port. The certificate issued by JNPT was later on withdrawn and subsequently CBDT vide its circular dated 6/1/2011 has made it clear that structures at port in the shape of CFS and ICDs are only eligible for deduction under section 80IA(4) of the Act. So far as it relates .....

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cial Bench: 63. The submission of the Ld. Counsel in the case of All Cargo Global Logistics Ltd. is that the Hon ble Delhi High Court has held that ICDs are landlocked and situated far off from the sea port such. The ICDs of the Container Corporation of India are located at places such as Jamshedpur, Jodhpur, Jaipur, etc. These have been held to be inland ports for the purpose of deduction u/s 801A(4). The case of the assessee is better placed than the case of Container Corporation of India Ltd. .....

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of M/s. Novopan India Ltd., Hyderabad vs. Collector of Central Excise and Customs, Hyderabad (1994)3SCC 606. In respect of this decision, he laid stress on the finding that liberal and strict construction of exempt provision are to be invoked at different stages of its interpretation. When the question is whether a subject falls in the notification or in the exemption clause then it being in the nature of exemption is to be considered strictly and against the subject but once the ambiguity or do .....

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annot be classified as inland ports for the purpose of section 80(IA)(4). It is further submitted that the certificate issued by Jawahar La! Nehru Port Trust has been withdrawn by the Port Trust. It is also submitted that Inland Waterways Authority of India Act, 1985, provides the definition of the term infrastructure facilities , in its clauses (f), as the structures such as docks, wharves, jetties, stages, locks, buoys, inland ports, cargo handling equipments, road and rail access and cargo st .....

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back benefit. It is also submitted that a study prepared by Transport and Tourism Division of Economic and Social Commission for Asia and pacific (a division of the United Nations) provides an insight in the concept of inland port vis. a vis. sea port . It is mentioned there that access should be provided to inland ports through waterways from sea by developing them. 65. We have considered the facts of the cases and submissions made before us. It may be mentioned that one of the arguments advan .....

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elong to the port. The letters written by port trust to the assessee also state that the matter has been referred to the Income Tax Department. The department has clarified that an ICD/CFS does not constitute an inland port. in the case of CIT Vs. ABG Heavy Industries Ltd., 189 Taxman 54, the Hon ble Court has held that the assessee is entitled to deduction u/s 801A. However there is a very salient difference in facts that structures were located at port and such structures had to be handed over .....

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that the matter has to be decided under the Income Tax Act independently. For doing so, initially a strict interpretation has to be placed on the words inland port to examine that the assessee is entitled to the deduction. CBDT has furnished opinion that ICDs and CFSs are not entitled to such deduction as they do not constitute inland ports. Other Acts as well as study report lead to the conclusion that a port can be said to be an inland port only if it has an access to the sea via a water-way. .....

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following this decision, it is held that a CFS is an inland port whose income is entitled to deduction u/s 80IA(4). Question No. 2 is answered accordingly. (Emphasis given by us) 25.1 The relevant portion of the Special Bench decision have been emphasized to show that the arguments of A.O and Ld. D.R in the present case are similar to the arguments raised by Revenue before Special Bench. Before Special Bench it was the case of the assessee that of CFS owned by them are better placed as ICDs cons .....

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edent that CFS of the assessee should be situated at port. So, nonsituation of the CFS of the assessee at port does not disentitle it from claiming deduction u/s. 80 IA(4). 25.2 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 and similar certificate was provided in the cases dealt with by Special Bench according to highlighted portion of the decision of Special Bench. Such certificate issued by JNPT was als .....

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ed 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. Both the letters ( Dt. 31/3/2006 & 5/10/2007) are reproduced in Para 16 of this order and from their perusal it can be seen that though the letters dated 31/3/2006 stated the basis on which assessee s CFS has been considered to be an extended arm of the Port but in subsequent letter dated 5/10/2007 no basis has been mentioned. Such with .....

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and Ports for the purpose of section 80 IA(4). The said circular was also not considered sufficient for denial of deduction to the assessee. Reference in this regard also can be made to the highlighted portion of the observations existing in para-64 of the order of Special Bench and it can be seen that despite such argument raised by the revenue, Special Bench has held that CFS was entitled for deduction under section 80 IA(4).. 25.4 Thus it can be seen that the arguments of the AO to deny the c .....

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cumstances are not shown to be different in any manner. It was specifically argued before us by the Ld. A.R that facts of the present case are similar to the cases before Special Bench and such arguments of Ld. A.R have not been rebutted by the Department by specifically pointing out that there is some difference in the facts and circumstances of the present case when they are compared to the facts of the cases before Special Bench. 25.5. So far as it relates to the aspect of consistency which w .....

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e in such argument of Ld. D.R as the order of Special Bench cannot be said to be sub-silentio as all the contentions of the Revenue are considered and the matter is decided in accordance with solitary decision of Hon ble Delhi High Court available on the issue. Even till date revenue has not been able to cite any decision of any other High Court in which contrary decision is taken. The cases of CFS are better placed from the cases of ICD s considered by Hon ble Delhi High Court and Hon ble Delhi .....

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d ambit of the provision of the Act. According to well established law a circular/clarification cannot even impose on the tax payer a burden higher than what the Act itself, on a true interpretation envisages. The task of interpretation of law is an exclusive domain of the Courts. Reference in this regard can be made to the three judges decision of Hon ble Supreme Court in the case of Keshavi Raoji & Company vs. CIT, 183 ITR 1(SC) The Board cannot pre-empt a judicial interpretation of the sc .....

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annot come into play to disentitle the assessee from claiming deduction under section 80IA(4) as the view of the Special Bench and Hon ble Delhi High Court would prevail against the view taken by CBDT. 25.8 Though Ld. CIT(A) has accepted the claim of the assessee that CFS are Inland port within the meaning of section 80IA(4) on the basis of aforementioned decision of Special Bench, decision of Hon ble Delhi High Court in the case of Container Corporation of India Ltd.(supra) and the decision of .....

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ory body for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility;] 25.9 Both the parties have also argued on this issue at length. As mentioned earlier it is the case of the assessee that it is not necessary to have a written agreement. As against that it is the case of revenue that the agreement should be in writing and it should be in accordance with the provisions of Article 299(1). We have given careful thought to such .....

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d the conditions to be fulfilled towards creation of structures at the ports for staring, loading and unloading to form part of the definition of ports and, thereby, become entitled far the tax concessions available for developing operating or maintaining infrastructure facilities such as ports. According to the Revenue Department a certificate from the port authority concerned stating the structures form part be enough for counting them as part of ports for the purpose section 10(23G) and secti .....

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ertificate issued by the Port Authorities In other words for and from the assessment year 2002-03 onwards, structures at the ports for storage loading and unloading etc will be Included in the definition of port for the purpose of sections 10(23G) and 80 IA of the Income tax Act, 1961, if the following condition is fulfilled: - the concerned port authority has issued a certificate that the said structures form part the port. In our case we had a Container Freight Station at JNPT and that fact ha .....

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ement that the same would be transferred to the State Authority in the time stipulated in the agreement. This circular was applicable upto assessment year 2001-02 and earlier years. For and from assessment year 2002-03 the Board has relaxed the second condition vide circular dated 16/12/2005, according to which for claiming deduction under section 80IA(4) by the CFS, the only requirement was to obtain a certificate from the concerned Port Authority that the structure of CFS form part of the Port .....

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the administration of the Act. The benefit of such Circular is permissible even though the circular might have departed from the strict tenor of the statutory provision and mitigated the rigor of the law. Reference in this regard can be made to the following observations of Hon ble Supreme Court from the decision in the case of Keshavji Raoji & Company vs. CIT (supra) However,-this is what Sri Ramachandran really has in mind -circulars beneficial to the assessees and which tone down the rigo .....

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igour of the law. 25.11 In the present case Circular dated 16/12/2005 has done away with the requirement of agreement though the circular has deviated from the strict tenor of statutory provisions. Such course of action is within the power of CBDT and benefit arising there from is permissible to the assessee and cannot be denied according to aforementioned decision of Hon ble Supreme Court. Here, it may be mentioned that Circular dated 16/12/2005 was also considered by their Lordships of Hon ble .....

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c., 2005, Circular No. 10 of 2005 [(2005) 199 CTR (St) 97] was issued by the CBDT. The circular made a reference to the earlier circular dt. 23rd June, 2000 and clarified that the definition of the expression port for the purposes of s. 80-IA of the Act so as to include structures at ports for storage, loading and unloading etc., subject to the fulfillment of the conditions already noted earlier, would apply to the asst. yr. 2001-02 and any earlier assessment year. However, from asst. yr. 2002-0 .....

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e earlier circular dt. 23rd June, 2000 would continue to operate in respect of assessment years prior to and culminating with asst. yr. 2001-02. With effect from asst. yr. 2002-03 all that was necessary was a certificate issued by the port authority that the structure in question forms a part of the port. Hence, the evolution of s. 80-IA would show a progressive liberalisation of the legislative scheme, in the interests of aiding the growth of infrastructure. The administrative circulars issued .....

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taining the certificate from the Port Authority that the said structure form part of the Port which is clear from the aforementioned observations and the said certificate has been obtained by the assessee. 25.13 The above discussion is de-hors to the arguments taken by Ld. AR that in the case of M/s. Continental Warehousing Corporation (supra) there is a specific reference of the fact that there was no agreement entered into by that assessee with the designated authority and also the arguments t .....

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ndore) 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 and reference can be made to the following observations: 18. If we examine the relevant provisions of s. 80-IA(4A) of the Act and 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 tha .....

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e construed so as to advance the objective of the provisions and not to frustrate it. If we put the facts of the case with the parameter laid down by the apex Court and the various High Courts, we would find that the assessee though not entered into an agreement with the State Government at the initial stage but has obtained the tender/contract by virtue of a valid assignment, which was duly recognised by the State Government, should be deemed to have entered into an agreement with the State Gov .....

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osition of law that the company is a juristic entity and it should be considered independent from the shareholders or the directors. Admittedly, M/s Ajay Construction, the original tenderer, have assigned the remaining work of the contract/tender along with the expenditure incurred by it to Smt Usha Agrawal, the promoter of the assessee-company though an agreement dt. 1St April, 1995 and thereafter the construction work was undertaken by the promoter of the assessee-company till its incorporatio .....

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s executed between the assessee, M/s Ajay Constructions and the State Government through which the State Government have recognised that the assessee has stepped into the shoes of MIs Ajay Constructions and notified authorising the assessee to collect the toll tax for a particular period. A copy of the letter dt. 22nd May, 2000, to this effect is also placed before us. The assessee has also placed various correspondence entered into between the assessee and the State Government and the letter dt .....

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actual construction work was undertaken by the assessee only. (Emphasis ours) In the above case also the deduction was not granted to the assessee as assessee had not entered into an agreement with the State Government but from the approvals granted to the assessee it was inferred that assessee should be deemed to have entered into an agreement with the State Government. 25.15 The above circular issued by CBDT dated 16/12/2005 has also waived the condition regarding entering into an agreement w .....

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