TMI Blog2016 (10) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... Merely because the Revenue has filed an appeal before the Hon ble High Court, the same in our opinion cannot be a ground to take a contrary view than the view taken by the Tribunal especially in absence of any order reversing the decision of the Tribunal. Accordingly, we uphold the order of the CIT(A) and the grounds raised by the Revenue are dismissed. - ITA No.1778/PN/2014 - - - Dated:- 5-10-2016 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Appellant : Shri Rajeev Kumar, CIT For The Respondent : Ms. Keuri Desai ORDER PER R.K.PANDA, AM : This appeal filed by the Revenue is directed against the order dated 26-06-2014 of the CIT(A)-I, Thane relating to Assessment Year 2010-11. 2. The only ground raised by the Revenue reads as under : Whether the CIT(A)-I, Thane is right in law in holding that the assessee is entitled to deduction u/s.80IA of the Income Tax Act, 1961 even though activities undertaken by the assessee do not fall within clause (d) of the Explanation to 80IA(4) defining the term infrastructure facilities? 3. Facts of the case, in brief, are that the assessee is a company engaged in operating the Container Freight Stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity; AND (4) It should have started or starts operating and maintaining the infrastructure facility on or after the Ist day of April, 1995. 5. The AO also referred to the CBDT Instruction Vide F.No.178/42/2010/ITA-1, dated 06-01-2011 wherein guidelines have been given to AOs on infrastructure activities u/s.80IA(4) of the I.T. Act, 1961 with respect to Container Freight Station and Inland Container Depots and which read as follows (Para 5 of the AO s order) : . . . . .a port, airport, inland waterway, inland port or navigational channel in the sea. In order to clarify the term port, and whether the facilities of loading and unloading constitute a port, the Board issued two Circulars, i.e. Circular No.793 dated 23-06-2000 and Circular No.10 dated 16-12- 2005. In the first circular, it was clarified that structures at ports for storage, loading and unloading will be covered by the definition of port for the purpose of section 10(23G) and section 80IA subject to the condition that the concerned port authorities has issued a certificate that such structures form a part of the port and the same have been constructed under the BOLT scheme. This was again reiterated in the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 80IA(4) of the I.T. Act, 1961 and CBDT Circular No.10 of 2005 dated 16th December, 2005. (ii) The assessee company has not entered into an agreement with the Central Govt./State Govt./ Local authority or any other statutory body for developing or operating and maintaining or developing, operating, maintaining a new infrastructure facility. (iii) The assessee company is not an inland port as intended in the Explanation to Section 80IA(4) of the I.T. Act, 1961. There is no CBDT instruction declaring the assessee company as inland port . The AO accordingly disallowed the claim of deduction of ₹ 34,27,47,435/- u/s.80IA(4) made by the assessee. 8. In appeal the Ld.CIT(A) allowed the claim of the assessee on the basis of the decision of Hon ble Delhi High Court in the case of Continental Warehousing of India Vs. ACIT vide ITA No.1411/2009, 967/2011 and 968/2011 order dated 11-05-2002 and the decision of the Special Bench of the Tribunal in the case of M/s. All Cargo Global Logistics Ltd. Vs. DCIT vide ITA No.5018 to 5022 and ITA No.5059 for A.Yrs.2004-05 to 2009-10. The CIT(A) further relied on the decision of the Mumbai Bench of the Tribunal in assessee s own ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the facts and in the circumstances of the case, the learned CIT(A) was justified in upholding the disallowance of deduction under s. 80-IA(4) of the Act on merits? 61. The facts In the case of All Cargo Global Logistics Ltd. are that the assessee commenced CFS activities on 7th April, 2003. In this connection a letter has been received from the Commr. of Custom (Import), bearing No. 3 of 2003, at. 28th Feb., 2003, classifying the area of 3,282 sq. mtrs. as customs area for the purpose of storage, stuffing/destuffing and clearance of export/import cargo. Subsequently, the assessee has been certified as a custodian of cargo under Customs Act, 1962, by notifying the area as customs area . It has been submitted that a CFS is common user facility offering services in handling and temporary storing of import/export laden empties carried under customs control and supervision. It is also a bonded warehouse facility where customers can clear the cargo for export to various countries and receive customs- cleared cargo for home consumption. The staff of Customs Department is posted in the CFS for such clearances. The assessee enclosed a certificate from the chartered accountant in For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds which are brought in or removed from the ICDs are brought or taken either by railway wagons or by container trucks, as the case may be. Finally, it has been held that although ICD may not be a port, but it is an Inland port. The relevant portion of the decision is reproduced below: 19. The Tribunal erred in holding that because of the change made by the Finance Act, 2001 w.e.f. 1st April, 2002 by dropping the power of the CBDT to notify any other public facility of similar nature for the purpose of s. 80-IA of the Act, the ICD cannot be considered as Inland port. The error committed by the Tribunal is to overlook that both before and after the above amendment, inland ports were specifically mentioned as an Infrastructure facility in the statutory provision and In the understanding of the CBEC, which administers the Customs Act, an ICD was actually an Inland port. There is also no dispute that even in 1983 amendments had been made to the Customs Act by treating the ICD as part of the customs port for purpose of customs formalities and clearances. In these circumstances, the real question was not whether the CBDT notified the. ICD as an inland port but whether the ICD can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Inland waterway, river or canal and therefore they cannot be classified as inland ports for the purpose of s. 80-IA(4). It is further submitted that the certificate Issued by Jawahar Lal Nehru Port Trust has been withdrawn by the port trust It is also submitted that Inland Waterways Authority of India Act. 1985, provides the definition of the term infrastructure facilities , in its cl. (f), as the structures such as docks, wharves, Jetties, stages, locks; buoys, inland ports, cargo handling equipments, road and rail access and cargo storage spaces and states that the expression infrastructure facilities shall be construed accordingly. In this Act, Inland port is included as item, thus, this term has a distinct meaning, separate and apart from other terms. Therefore, ICDs and CFSs cannot be Interpreted to be Included in the term inland port . It Is also submitted that Circular No. 74 of 1997-Cus., dt. 30th Dec., 1997 of the CBEC makes a distinction between inland ports and ICDS/CFSs for grant of duty drawback benefit. It is also submitted that a study prepared by Transport and Tourism Division of Economic and Social Commission for Asia and Pacific (a division of the United Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in this case by any High Court is in the case of Container Corporation Of India Ltd. (supra). In this case it has been held that an ICD is not a port but It Is an inland port. The case of CFS is similarly situated In the sense that both carry out similar functions. i.e.. warehousing, customs clearance and transport of goods from. Its location to the seaports and vice versa by railway or by trucks in containers. Thus, the issue is no longer res integra. Respectfully following this decision, it Is held that a CFS is an Inland port whose Income is entitled to deduction under s. 80-IA(4). Question No. 2 is answered accordingly, 6.1 In this view of the situation, respectfully following the aforesaid decision of Special bench we allow the appeal filed by the assessee and it is held that assessee is entitled to get deduction under section 80IA(4) of the Act. 6.1 Respectfully following the decision of the Tribunal in assessee s own case in the immediately preceding assessment year and in absence of any contrary material brought to our notice by Ld. Departmental Representative , we find no infirmity in the order of the CIT(A) allowing the claim of the assessee. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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