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TMI Blog2018 (7) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Revenue has come up with the instant appeal, raising the following substantial question of law:- "Whether the ITAT has correctly interpreted the judgement of Hon'ble High Court so as grant relief to the assessee u/s.80IA(4) without going into admissibility of the claim on merits " 3. When the matter was taken up for admission, at the outset, Mr.T.R.Senthil Kumar, learned Senior Standing Counsel for Income Tax Department fairly submitted that, on a similar issue, between the same parties, a Hon'ble Division Bench of this Court in M/s.R.R.Industries Limited, Chennai 32 Vs. The Income Tax Officer (OSD), Chennai 34, in Tax Case (Appeals) Nos.139 to 145 of 2012 vide judgement dated 26.06.2013, relating to the assessment years 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the undertaking which are eligible as per the eligibility criteria given under sub Section 4 of Section 80IA. Thus when, once the Department had accepted the reasoning of the Commissioner of Income Tax (Appeals), that irrespective of the character of the receipt, the assessee was entitled to the relief under Section 80IA with other conditions therein under Section 80IA(4) thus admittedly stood satisfied, the remand order of the Tribunal by directing the Assessing Officer to find out the nature of the receipt is not sustainable in law. He submitted that such enquiry is inconsequential as to the relief under Section 80IA. 7. We agree with the submissions made by learned senior counsel for the assessee. As already seen, two questions were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development of infrastructure facilities or built up space with common facilities in any area allotted or earmarked for the purpose of software development as industrial park as business activity. Thus, while agreeing with the assessee on the character of the receipt of lease rental as business income, he also agreed in principle that the deduction under Section 80IA would be allowed, even if the rental income is assessed as income from house property. Further he relied on the decision of the Apex Court reported in 57 ITR 306 - COMMR. OF INC. TAX v. COCANADA RADHASWAMI BANK LTD that the head under which income is assessed is not relevant for the purpose of claiming exemption under the Act. When the Revenue had accepted the view of the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal being one on the character of the receipt and the issue regarding the deductibility under Section 80IB irrespective of the character of the receipt not being an issue raised by the Revenue even as an additional ground, when the Revenue had no grievance at all as regards the consideration for grant of relief under Section 80IA(4)(iii) of the Act, we do not find any justification in the order of the Tribunal, ordering remand on the issue which does not arise at all for the purpose of a decision thereon. Further there is nothing on record to show that the Revenue raised this as an additional issue even for the purpose of considering Rule 11. 9. In the circumstances, the order of the Tribunal is set aside and the appeals filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt, he held that income received by the assessee was to be assessed as income from business only. Thus, on the claim of deduction for the above said receipt under Section 80IA, the Commissioner of Income Tax (Appeals) pointed out that the approval of the Ministry stated that the assessee was eligible for deduction under Section 80IA (4)(iii) of the Act which specifically referred to developing, operating and maintaining of industrial part. Admittedly the assessee had made the application for development of an industrial park under the scheme notified by the Government in accordance with law. The Commissioner of Income Tax (Appeals) further pointed out that the scheme recognised the activity of any undertaking engaged in the development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the receipt is not a question to be gone in the matter of considering the claim of deduction under Section 80IA(4)(iii) of the Act, we do not find that any useful purpose would be served for the Revenue to again insist on a decision on the character of the receipt." The ld. Counsel for the assessee has also placed on record the copy of the letter dated 1st August 2001 from the Department of Industrial Police & Promotion, Secretariat for Industrial Assistance Investment Promotion & Infrastructure Development Cell, Ministry of Commerce & Industry, Govt. of India where approval has been accorded to the assessee for setting up an industrial park in terms of the scheme notified by the Ministry in exercising of powers u/s.80IA sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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