TMI Blog2017 (3) TMI 747X X X X Extracts X X X X X X X X Extracts X X X X ..... and correct facts necessary for the assessment. Considering the very CBDT Circular No. 10 of 2005 dated 16th December 2005 as looking to the facilities provided by CFS, the CFS is an Inland Port as it carries out functions of warehousing, customs clearance and transport of goods from its location to sea-port and vice versa by rail or by trucks in containers. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION No. 925 of 2013 With SPECIAL CIVIL APPLICATION No. 3005 of 2014 - - - Dated:- 8-3-2017 - MR. M.R. SHAH AND MR. B.N. KARIA, JJ. FOR THE PETITIONER : Mr SAURABH N SOPARKAR, Senior Advocate with Mr. MONAAL J DAVAWALA AND Mr B S SOPARKAR, ADVOCATE FOR THE RESPONDENT : Mr PRANAV G DESAI, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE Mr. JUSTICE M.R. SHAH) 1. As common question of law and facts arise in both these petitions with respect to the same assessee, but with respect to different assessment years, both these petitions are heard together and disposed of by this common judgment and order. 2. Special Civil Application No. 925 of 2013 has been preferred by the petitioner-assessee for quashing and setting aside the impugned Notice dated 28th Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving personally inspected the operation of CFS at Dronagiri Node, Navi Mumbai, the Assessing Officer allowed the claim of the assessee of deduction under Section 80IA [4] of the Act, and consequently, the Assessing Officer framed scrutiny under Section 143 [3] of the Act. That, beyond the period of four years from the date of relevant assessment year, the respondent has issued the impugned Notice under Section 148 of the Act by which the Assessing Officer has sought to reopen the assessment for A.Y 2005-2006 on the ground that the income chargeable to tax within the meaning of Section 147 of the Act has escaped the assessment. At the request of the assessee, the Assessing Officer has furnished the reasons recorded to reopen the assessment for A.Y 2005-2006, which reads as under :- The return of Income was filed on 31.10.2005 declaring total Income at nil. The assessee is engaged in the business of owning and operating a container freight station (CFS) Dhronagiri Node at Navi Mumbai. In the return of income, the assessee has claimed deduction u/s. 80IA of the Act of ₹ 88,63,933/- on the income arising out of the activities in the CFS. The case was selected for scrutiny ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 80IA of the Act and after holding necessary inquiry, the Assessing Officer accepted the claim of the assessee of deduction of the claim under Section 80IA [4] of the Act. It was, therefore, submitted that the subsequent reopening was nothing but change of opinion on the part of the Assessing Officer. It was further submitted that as such there was no failure on the part of the assessee in not disclosing the true and correct facts. It is submitted that as such, even the letter which has been relied upon by the Assessing Officer while reopening the assessment was very much available with the Assessing Officer at the time of scrutiny assessment, and therefore, it was requested to drop the re-assessment proceedings, as there was no failure on the part of the assessee in disclosing the true and correct facts. That thereafter, the Assessing Officer has not accepted the objections raised by the assessee and has disposed of the said objection. Hence, the present Special Civil Application No. 925 of 2013 challenging the impugned notice for reopening the assessment for A.Y 2005-2006. On the very ground for which the assessment for A.Y 2005-2006 is sought to be reopened, the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was providing infrastructure and other facilities. It is submitted that as such CFS is an Inland Port, as it carries out functions of warehousing, customs clearance and transport of goods from its location to sea-port and vice verse by rail or by trucks in containers. It is submitted that therefore, the assessee is entitled to deduction under Section 80IA of the Act; as claimed. In support of his submissions, learned counsel Shri S.N Soparkar has heavily relied upon decisions of [i] Bombay High Court in the case of Commissioner of Income-tax II, Thane v. Continental Warehousing Corporation [Nhava Sheva] Limited , 374 ITR 645 [Bombay]; [ii] of Madras High Court, in the case of Commissioner of Incometax, Chennai v. A.L Logistics [P] Limited , [2015] 374 ITR 609 [Madras]; and [iii] of Delhi High Court in the case of Container Corporation of India Limited v. Assistant Commissioner of Income-tax , 346 ITR 140 [Delhi]. 5.3 Making above submissions and relying upon the above decisions, it is requested by Shri Soparkar, learned counsel for the petitioner-assessee to allow the present petitions and to quash and set-aside the impugned Notices issued under Section 148 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0IA of the Act and only thereafter, considering the activities and functionalities of CFS, treated and considered CFS as Port itself. Therefore, after a detailed scrutiny and even after Assessing Officer and Additional Commissioner of Income-tax, Jamnagar personally verifying the activities/functionalities of the CFS, having treated CFS as an Inland Port, granted benefit under Section 80IA pf the Act. Therefore, even if communication dated 29th October 2005 by Jawaharlal Nehru Port Trust to the assessee would have no direct effect on the grant of benefit under Section 80IA of the Act, as on facts and considering the activities of CFS, the Assessing Officer has already held CFS as a Port itself. Under the circumstances and in the facts and circumstances of the case, it cannot be said that there was any suppression of material facts on the part of the assessee in not disclosing true and correct facts necessary for the assessment. Even whether CFS can be said to be an Inland Port or not is squarely covered by the decision of Delhi High Court in case of Container Corporation of India Limited [Supra] and the Bombay High Court in the case of Continental Warehousing Corporation [Nhava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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