TMI Blog2017 (7) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... le under sub-section (4) of section 80-IA can be claimed by both the ICDs and CFSs.- Decided in favour of assessee Disallowance u/s. 43B - land revenue charges which have been bifurcated under two heads and includes prior period expenses - Held that:- As during the year under consideration the said sum has been reversed and its reference can be found in annexure IX of tax audit report for the year and hence, as the entire amount is reversed it automatically amounts to offering income in the year of reversal by claiming the expenses less to that extent. The aforesaid fact becomes more evident from the ledger extract of prior period expenses, ledger extract of land revenue charges and the outstanding expenses account including the journal entries of the said reversal. The Assessing Officer has disallowed the aforesaid amount without making any enquiry or verification in this regard. The appellant during the year in any case has already disallowed the statutory payments not paid during A.Y. 2011-12 as is evident from the computation of income (on account of various statutory heads). Thus, the disallowance made by the Assessing Officer is not in accordance with the fact of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order has given detailed reasons for allowing the claim of assessee. 5. On the other hand Shri Rajeev Kumar representing the Department vehemently defended the findings of Assessing Officer in disallowing the claim of deduction u/s. 80IA(4) of the Act as well as making disallowance u/s. 43B of the Act. However, the ld. DR fairly admitted that the issue with regard to assessee s eligibility to claim deduction u/s. 80IA(4) of the Act has been considered by the Co-ordinate Bench of the Tribunal in assessee s own case in assessment year 2009-10. 6. We have heard the submissions made by the representatives of rival sides and have perused the orders of the authorities below. The ground Nos. 1 and 2 raised in the appeal by the Department is against the allowing of claim of deduction u/s. 80IA(4) to the assessee. The assessee is a State Government undertaking. The assessee has set up Inland Container Depot (ICD) and Container Freight Station (CFS) for handling bonded warehouse on the leasehold land of SIDCO in the vicinity of Jawaharlal Nehru Port Trust. The Assessing Officer disallowed the claim of assessee u/s. 80IA(4) on the ground that the assessee has failed to furnish a certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arehouse etc. The ICD/CFS of the assessee company started its operations in year 2004. The assessee claimed deduction u/s. 80IA(4) in respect of ICD/CFS facilities set up by the assessee. The Assessing Officer rejected the claim of the assessee on the ground that the assessee did not fulfill the required conditions as prescribed for claiming deduction u/s. 80IA(4) of the Act. The Assessing Officer further observed that the assessee has not been able to show any agreement with the Central Govt./State Govt./Local Authority or any other Statutory Body for developing or developing, operating and maintaining a new infrastructure facility. The assessee carried the matter in appeal before the First Appellate Authority. The Commissioner of Income Tax (Appeals) by following the decision of the Mumbai Special Bench of the Tribunal in the case of M/s. All Cargo Global Logistics Ltd. Vs. DCIT in ITA Nos. 5018 to 5022 5059 for assessment years 2004-05 to 2009-10 decided on 06-07-2012 and the decision of the Mumbai Bench of the Tribunal in the case of Continental Warehousing Corporation (Nhava Sheva) VS. ACIT in ITA No. 7055/Mum/2011 for the assessment year 2008-09 decided on 31-08-2012 allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be dismissed. Since the Ld.CIT(A) while allowing the claim of deduction u/s.80IA(4) has followed the decision of the Tribunal, therefore, merely because the Revenue has challenged the decision of the Tribunal before the Hon‟ble High Court, the same in our opinion cannot be a ground to take a contrary decision than the view taken by the Tribunal cited (Supra). In this view of the matter, we uphold the order of the CIT(A) and the ground raised by the Revenue is dismissed. 15. We find that the facts of the case of the assessee is similar to that of the case decided by the Co-ordinate Bench of the Tribunal in the case of ACIT Vs. JWC Logistics Park Pvt. Ltd. (supra). We observe that the Hon'ble Bombay High Court in the case of Commissioner of Income Tax Vs. Continental Warehousing Corporation (supra) has upheld the order of Tribunal. The Hon'ble Court after considering the provisions of section 80IA(4) observed : 39. ..We are concerned with sub-section (4) and as it read at the relevant time. It says that this section applies to any enterprise carrying on the business of developing or operating and maintaining any infrastructure facility which fulfill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Bench and equally by the Bench of the Tribunal in the impugned orders on the Division Bench judgment of the Delhi High Court is thus well placed. 47. We do not find that anything other and further than this material is relied. However, even the High Court of Judicature at Madras has referred in its Division Bench decision to the view taken by the Delhi High Court. The Division Bench in paragraphs 10 and 12 of its judgment extensively referred to the Tribunal's conclusions. It also referred to the Special Bench decision of the Tribunal. Thus, when the proposal to set up a CFS has been accepted by the Government, there is no requirement of either a specific agreement as contended by Mr. Suresh Kumar. Nor can it be said that by virtue of any certification of the JNPT and its subsequent withdrawal the position undergoes any change. Once the facility is nothing but a infrastructural facility set up and within the precincts of the port, then, considering and even otherwise having considered its proximity to the sea port and its activities that we have no doubt and it can be safely concluded that the deduction admissible under sub-section (4) of section 80-IA can be cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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