TMI Blog2017 (9) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as precedent because the jurisdictional High Court has taken a view in favour of the assessee and that also in the assessee's own case. That means the initial assessment year i.e., 2004-05, once the claim of deduction in respect to pre-requisite conditions for allowance of deduction has been satisfied, the same cannot be questioned in future years unless and until the Revenue disturbs the initial assessment year . Similar are the facts in the case of sister concerns of the assessee, i.e., Selvel Transit Advertising Pvt. Ltd. In term of the above - Decided in favour of assessee Allowing TDS payment made by assessee company for hoarding advertisement charges u/ s 194C OR 194I - Held that:- As in assessee’s own case for A.Y.2009-10 and 2010-11 all the assessments were completed under section 143(3) of the Act. No disallowance of these expenses was made all through. But in this year and in subsequent in the assessment year 2010-11 this disallowance was made. Thus we accept the contention of the assessee's counsel as regards to consistency that once on similar facts the Revenue has accepted the payments as contractual payments now they cannot deviate - Decided in favour of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A No.820/Kol/2008 order dated 11.12.2009 wherein it was held that the assessee is entitled to 100% depreciation on hoardings. 5. Aggrieved by the order of CIT(A) the revenue has raised ground no.1 before the Tribunal. 6. At the time of hearing it was agreed by the parties before us that identical issue had been decided in assessee s own case for A.Y.2009-10 and 2010-11 in ITA No.1094/Kol/2012 and ITA No.2115/Kol/2013 vide order dated 01.01.2015. The following are the relevant observations of the Tribunal : 27. The next common issue in ITA NO.1094/Kol/2012 and ITA No.2115/Kol/2013 is against the order of CIT(A) deleting the disallowance of depreciation @ 100% on hoardings treated as temporary structures as against the treatment given by AO as plant and machinery allowing depreciation at 15%. The facts and circumstances in both the year are exactly identical i.e. AY 2009-10 and 2010-11, hence we will take up the facts from AY 2009-10. 28. We find that the CIT(A) deleted the disallowance of depreciation for the reason that the issue is covered in the assessment year 2005-06. For ths CIT(A) observed in para 4 as under: Ground Nos 1 10 5 of the appeal are rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see for deduction u/s 80IA(4) of the Income Tax Act, 1961 (Act). Under Sec.80IA(4) of the Act, a deduction of income derived from the business of developing and infrastructural facility while computing total income of an Assessee is allowed. The assessee derived income from display of advertisement on road and foot bridges. It developed these facilities and was permitted to display advertisement hoardings as consideration for costs it incurred in developing infrastructure facilities. The Assessee operated and maintained the roads and foot bridges. The income derived from display of advertisement hoardings is referred to as revenue derived from maintaining roadside amenities. According to the AO profits derived from developing, operating and maintaining roadside amenities cannot be considered as income derived from the business of providing infrastructural facility and he therefore denied the claim of the assessee for deduction u/s 80IA(4) of the Act. 10. On appeal by the assessee CIT(A) directed the AO to allow the deduction claimed by the assessee by following the order of CIT(A)-XII/Kol dated 23.04.2013 in appeal No.209/12-13 for A.Y.2010-11 wherein CIT(A) held that income der ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d traffic signaling system on the preexisting road network therefore assessee 's business cannot be equated with business development. operation maintenance of roads as envisaged in S. 801A(4). 4. Aggrieved. assessee preferred appeal before CIT(A), who allowed the claim of assessee on the basis of assessment year 2004-05, which was initial year. wherein the Tribunal allowed the claim of the assessee vided para 5 of its order by quashing the Revision order passed by CIT-IV. Kolkata u/s. 263 of the Act in ITA No, 610/Kol/2009 for AY 2004-05 vide dated 30.09.2009, which reads as under: 5 After hearing the rival submissions, perusing the material available on record and the case laws cited by the Ld. counsel, we find that during the assessment proceedings the AO issued a notice u/s 142( 1) on 13.12.2006, which is available at pages 16 to 19 of the paper book in which specific query in respect of claim of the assessee u/s. 801A was raised. which reads as under: ( xxvi) With regard to the claim of deduction u/s 80IA, please furnish the following details. ( a) Nature of infrastructural facilities maintained clearly mentioning the details (no. .. siz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Account which is evident from item no.(xxi) of Form No. 10CCB of the Audit report u/s 80IA(7) of the Act. This report is also part of the paper book from pages 6 10 15. It is clear from this that there was application of mind on the part of AO before he accepted the claim of the assessee Company u/s. 80IA of the Act. In respect of automatic traffic signals and pedestrian fee bridge this view of the A.O is in conformity with the ratio laid down by this Tribunal in the cases of Vantage Advertising Pvt. Ltd ITA No.1054 1055/KoI/2008 and Selvel Media Services Pvt. Ltd. In ITA No. 1065/Kol/2008, wherein bus shelters and foot bridges were considered to be part of infrastructural facilities for claiming deduction u/s. 801A of the Act. Thus, in our considered opinion, the AO has taken a possible view on the facts available on record. The law is well settled that if the AO has taken a possible view and the Ld. CIT has a different opinion on the same facts provisions of section 263 cannot be invoked and the order passed by the AO cannot be held to be erroneous and prejudicial to the interest of revenue. Since the Ld. CIT has done the same. the order passed hi hint is not sustainable in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since. we are inclined to take the view that the Tribunal was right in holding that the automatic traffic signal and pedestrian foot bridge would constitute infrastructure facility as contemplated in clause (a) of the explanation to sub section (4) of Section 80-IA of the Income Tax Act, 1961, it is not necessary to answer question no. 1. Section 80-IA provides that where the gross total income of an assessee includes any profit and gains derived by all undertaking or an from any business referred to in sub-section (4) (such business being hereinafter referred to as the eligible business ), there shall. in accordance with and subject to the provisions of this section, be allowed. In computing the total income of the assessee. a deduction of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive assessment years. The relevant portion of sub-section (4) reads as under.: ( 4) This section applies to- (i) any enterprise carrying on the business [ of ( i ) developing or (ii) operating and maintaining or (iii) developing. operating and maintaining] any infrastructure facility which fulfills all the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and in that year the matter regarding the claim of deduction has become final for the reason that Hon'ble Calcutta High Court has confirmed the allowance of deduction and revenue has not carried the matter before Hon'ble Supreme Court. Whereas the revenue has referred the decision of Hon'ble Karnataka High Court in the case of Skyline Advertising Pvt. Ltd .. supra. but that cannot be considered as precedent because jurisdictional High Court has taken a view in favour of assessee and that also in assessee's own case. That means the initial AY i.e. 2004-05. once the claim of deduction in respect to pre-requisite conditions for allowance of deduction has been satisfied. the same cannot be questioned in future years unless and until the revenue disturbs the initial assessment year. Hon'ble Delhi High Court in the case of Delhi Press Patra Prakashan Ltd. (No.2), supra has considered this issue by following the decision of Hon'ble Supreme Court in the case of Radhasoami Satsang. supra and of Hon'ble Bombay High Court in the case of Paul Brothers. supra and also Saurashtra Cement Chemical Industries Ltd .. supra. Similar are the facts in the case of sister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No.459/CIT(A)XII/12/2011-12) dated 19-04-2012 and for A.Y. 2010-11 in Appeal No.209/CIT(A)-XII/Cir-12/2012-13) dated 23-04- 2013. I also find nothing new in facts and circumstances on this issue in the present appeal case before me for the relevant AY 2011-12. Moreover, it is an established position in law that an incident of mere lower deduction of TDS doe not make an assessee in default u/s 201 of the I.T.Act, 1961. In the light of the above discussion findings, after perusing the entire facts of the case and following the decision findings of my predecessor on the issue for assessment years 2009-10 2010-11 in the appellant s own case referred above, I am of the view that the AO was not justified in making the impugned disallowance of ₹ 11,41,40,674/- on account of Higher Charges paid to traders/Advertising Agencies during the year and hence addition made on this ground is deleted and the appeal of the appellant is allowed. 17. At the time of hearing it was agreed by the parties before us that identical issue was considered and decided by the Hon ble ITAT on identical issue in assessee s own case for A.Y.2009-10 and 2010-11 in TA NO.1094/Kol/.2012 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing interest on delay payment of TDS as allowable expenditure u/ s. 37 of IT Act. 20. The AO noticed that the assessee had paid a sum of ₹ 7,82,561/- as interest on delayed payment of tax that was deducted at source. The aforesaid sum was claimed s deduction while computing income from business. Under section 40(a)(ii) of the Act any sum paid on account of any tax levied on the profits and gains of business or profession shall not be allowed as deduction in computing income chargeable under the head profit and gains of business or profession . The AO was of the view that interest on delayed payment was akin to tax levied and paid by the assessee on profits and gains of business or profession and therefore cannot be allowed as deduction. 21. On appeal by the assessee the CIT(A) was of the view that the disallowance made by the AO was not justified and the interest expenses was allowable u/s 37(1) of the Act. 22. Aggrieved by the order of CIT(A) the revenue has raised ground no.4 before the Tribunal. 23. The ld. DR relied on the order of AO. The ld. Counsel for the assessee relied on the order of CIT(A). 24. After considering the rival submissions we are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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