TMI Blog2019 (1) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... the actual computation is to be made in accordance with the different Notifications issued by the Customs department with regard to different ICDs located at different places. The issue on merits is now squarely covered in favour of the assessee in [2018 (5) TMI 359 - SUPREME COURT OF INDIA]. Accordingly, in view of the aforesaid precedent, we quash this order passed u/s. 263 by the ld. CIT. Assessee’s appeal stands allowed. - ITA No.229/Mum/2018 - - - Dated:- 3-12-2018 - Shri Shamim Yahya, AM And Shri Sandeep Gosain, JM For the Appellant : Shri Madhur Agrawal For the Respondent : Shri R. P. Meena ORDER PER SHAMIM YAHYA, A. M.: This appeal by the assessee is directed against the order of the learned Commissioner of Income Tax-1, Mumbai ( ld.CIT for short) dated 23.03.2017 passed u/s. 263 of the Income Tax Act, 1961 and pertains to the assessment year (A.Y.) 2012-13. 2. The grounds of appeal read as under: 1. Order u/s. 263 is bad-in-law - Defective jurisdiction - Order may be quashed : (i) The Id. Principal Commissioner of Income Tax (Pr.CIT) erred in assuming the jurisdiction u/s.263 by failing and not appreciating that the original Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentative (ld. DR for short) strongly opposed the condonation of delay and placed reliance upon several case laws. 5. Upon careful consideration we find that the delay in filing the appeal is solely attributable to the wrong advice of the consultant. In our considered opinion, the assessee should not suffer on account of the wrong advice of the consultant, hence, in the substantial interest of justice we condone the delay 6. In this case, the ld. CIT noted that the Assessing Officer (A.O. for short) had committed an error in allowing the deduction u/s.80IA of ₹ 3,60,l5,452/- towards receipts from operation of Container Freight Station (CFS) without verifying the allowability of such deduction. That this error was found to be prejudicial to the interest of the revenue in the facts and circumstances of the case and in law. That it was found that not only the A.O. in a casual manner accepted the claim without due verification but even ignored the fact that the department has issued clarification dt.6.1.2011 to say that ICDs and CFSs are not ports for the purpose of Section 80IA and the decisions relied by assessee were not accepted and appeals were pending. That further t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'infrastructure facilities'. In this definition, inland port is included1 as an item, thus, this term is distinct and separate from other terms. Therefore, ICDs and CRSs cannot be interpreted to be included in the term 'inland port'. Also, the assessee company has not entered into any agreement with Central/State government or Local Authority/Statutory body which is mandatory as per the provisions of the Section 80IA(4)(i)(b) of the I. T. Act. It is pertinent to note the judgment of the Bombay HC in the case of All Cargo Global Logistics Ltd was not accepted by the Department and a SLP against the imp8ugned order has been filed in the case of All Cargo Global Logistics Ltd. Furthermore, on the same issue, SLP has been filed by the Department against the Delhi High Court's judgment in. the case of Container Corporation of India (364 ITR 140) (Del). 7. In view of the above facts and circumstances and after considering the submissions made by the assessee company, I am convinced that A.O. has committed the errors described above which are also prejudicial to the interest, of revenue. Considering the same, in exercise of powers conferred u/s. 263 of the I. T. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 1995 which came into effect from 01.04.1996 brought an amendment to the provisions of Section 80-IA of the IT Act. Section 80-IA of the IT Act talks about deduction in respect of profits and gains from industrial undertaking or enterprises engaged in the infrastructure development etc. The said amendment for the first time brought a provision under which a percentage of profits derived from the operation of infrastructure facility was allowed a deduction while computing the income of the assessee. A ten years tax concession allowed to the enterprises in accordance with the provisions of the Section subject to fulfillment of conditions given therein, which develops, maintains and operates any new infrastructure facility such as roads, highways, expressways, bridges, airports, ports and rail system or any other public facility of similar nature as notified. 12. The relevant portion of Section 80IA (as it stood then) reads as under: Section 80-IA(4A):This section applies to:--any enterprise carrying on the business of developing, maintaining and operating any infrastructure facility which fulfills the following conditions, viz., Section 80-IA(5) clause(ia): in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd waterways or inland port; 17. It was contended on behalf of the appellant that the High Court erred in relying on the Notification issued by CBDT to hold that the enterprises holding ICDs are allowed to claim deductions under Section 80-IA of the IT Act. As the said power of the Board was specifically taken away by the amendment made by Finance Act, 2001, in light of the said amendment, the Notifications which were issued by the CBDT would cease to operate after the Assessment Year 2002-03. 18. The argument put forward by learned senior counsel for the appellant does not have much force as the said amendment is silent with regard to any effect it would have upon the Notifications issued earlier by the Board in due exercise of its power. Had it been the intention of the legislature that the Notifications issued by the Board earlier are of no effect after 2002-03, it would have had found a place in the said amendment. In the absence of the same, we are unable to concur with learned senior counsel that the Notifications which were issued in legitimate exercise of the power conferred on the Board would cease to have effect after the Assessment Year 2002-03. 19. Learned seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese ICDs, the claim of the respondent herein can be considered within the term 'Inland port' as is used in the Explanation. It is significant to note that the word 'Inland Container Depots' was first introduced in the definition of 'Customs Port' as is given in Section 2(12) of the Customs Act, 1962, through amendment made by the Finance Act, 1983 with effect from 13.05.1983. 22. The term 'Inland Port' has been defined nowhere. But the Notification that has been issued by the Central Board of Excise Customs (CBEC) dated 24.04.2007 in terms holds that considering the nature of work carried out at these ICDs they can be termed as Inland Ports. Further, the communication dated 25.05.2009 issued on behalf of the Ministry of Commerce and Industry confirming that the ICDs are Inland Ports, fortifies the claim of the respondent herein. Though both the Notification and communication are not binding on CBDT to decide whether ICDs can be termed as Inland Ports within the meaning of Section 80-IA of the IT Act, the appellant herein is unable to put forward any reasonable explanation as to why these notifications and communication should not be relied t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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