TMI Blog2014 (11) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to deduction under s. 80-IA(4). As 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, the order of the CIT(A) is upheld and the grounds raised by the Revenue are dismissed. - ITA No. 906/PN/2013 - - - Dated:- 18-11-2014 - Shri R.S. Padvekar, Judicial Member And Shri R.K. Panda, Accountant Member For the Assessee : Shri Abhishek Tilak. For the Department : Ms. M.S. Verma, CIT. ORDER PER R.K. PANDA, AM : This appeal filed by the Revenue is directed against the order dated 17-12-2012 of the CIT(A)-I, Thane relating to Assessment Year 2009-10. 2. The grounds raised by the Revenue are as under : 1. Whether the CIT(A)-I, Thane is right in law in holding that the assessee is entitled to deduction u/s.80IA of the I.T. 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? 2. The appellant prays the order of the Ld.CIT(A)-I, Thane may be vacated and that of the Assessing Officer be resto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulated in the para 1 of the circular no. 10 of 2005 have not been fulfilled by the assessee company. The certificate issued by the Jawaharlal Nehru Port Trust (JNPT) to the assessee company dated 13/07/2006 for the purpose of availing the benefit of deduction u/s. 80IA(4) has been withdrawn vide their letter dated: 05/10/2007 and as a result of this withdrawal, the assessee company is no more eligible for the benefit of deduction u/s. 80IA(4). The said structure of the assessee, therefore, does not form part of the port of JNPT. 3.4 Further, according to the AO, the assessee company has not entered into an agreement with the Central or State Govt. or a local authority or any other statutory body for (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining a new infrastructure facility and the non fulfillment of this condition makes the assessee company ineligible for availing the benefit u/s. 80IA(4). 3.5 It was further pointed out by the AO that the CBDT vide F.No.178/42/2010-ITA-1 dated 06-01-2011 has clarified that the ICD s and the CFS s are not ports located on any inland waterways, river or canal and therefore cannot be classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied 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 Form No. 1OCCB, which Is a precondition for claiming the deduction under s. 80-IA(4). A certificate from the port trust has also been enclosed to the effect that the activities may be considered as extended activities as of port-related activities in accordance with the Circular No. 793, dt 23rd June, 2000 [(2000) 161 CTR (St) 211. r/w Circular No. 133/1995-Cus., dt. 22nd Dec.. 1995 of the Board of Excise and Customs. The CBDT had also issued Circular No. 10 of 2005, dt. 16th Dec., 2005 1(2005)199 CTR (St) 971 clarifying that the structures at the port for storage, loading and unloading constitute 'po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 considered to be an Inland port. In our opinion having regard to the provisions of the Customs Act, the communications issued by the CBEC as well as the Ministry of Commerce and Industry, the object of Including 'Inland port' as an infrastructure facility and also having regard to the fact that customs-clearance also takes place in the ICD, the assessee's claim that the ICDs are inland ports under Expln. (d) of s. 80-IA(4) requires to be upheld. 63. The submission of the learned counsel In the case of All Cargo Global Logistics Ltd. is that the Hon'ble Delhi High Court has held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilities 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 Nations) provides an insight in the concept of inland port vis-avis seaport . It is mentioned there that access should be provided to inland ports through waterways from sea by developing them. 65. We have considered the facts of the cases and submissions made before us. it may be mentioned that one of the arguments advanced by the learned counsel for the assessee Is that the case of Container Corporation of India (supra) is not based on any of the circulars issued by the port authorities, however, the CFS of the assessee has been granted such certificate. The certificate mentions that the CFS c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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