TMI Blog2023 (8) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... se of business. There being no finding on that aspect with regard to disallowance of expenses, other than miscellaneous expense which certainly required production of bills and vouchers, to examine the head under which they can be considered for being allowed, having been incurred wholly and exclusively in the course of business. As no specific bills and vouchers were filed, at any stage, the miscellaneous expenses was wrongly deleted by Ld. CIT(A) and to that extend the ground no. 2 of the Revenue is allowed partly - Sh. N.K.Billaiya, Accountant Member And Sh. Anubhav Sharma, Judicial Member For the Appellant : Sh. Ankit Agrawal, CA For the Revenue : Sh. Vivek Kumar Upadhyay, Sr. DR ORDER PER ANUBHAV SHARMA, JM: The appeal has been preferred by the Revenue against the order dated 22.07.2019 of CIT (A)-33, New Delhi (hereinafter referred as Ld. First Appellate Authority or in short Ld. FAA ) in appeal no. 411/17-18 arising out of an appeal before it against the order dated 26.12.2016 passed u/s 143(3) r.w.s. 144C of the Income Tax Act, 1961 (hereinafter referred as the Act ) by the ACIT, Circle- 5(2), New Delhi (hereinafter referred as the Ld. AO) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has not fulfilled all the conditions necessary for claiming the deduction under the relevant section. This fact was noted by the Revenue Audit party also vide letter DG(Audit) letter DGARC/RAIT/Review on 80IA/2015- 16/613 dated 16.11.2015 for AY 2011-12, which was accepted by the department. Order U/S 263 was passed by the PCIT on 31.03.2016 for AY 2011-12 in which the deduction was not accepted. Considering the above facts and circumstances of the case and in view of the violation of provisions as mentioned in section 80-IA, the amount of Rs. 3,10,37,976/- claimed as deduction is disallowed and added back to the income of the assessee income. (Addition: Rs. 3,10,37,976/-) For the above reason, I am satisfied that the assessee company has attracted the provisions of section 271(1)(c) of the 1.T. Act, 1961 by furnishing inaccurate particulars of its income, for which penalty proceedings u/s 271(1)(c) are being initiated separately. 4. Further, Ld. AO had made a disallowance of miscellaneous expenses in the absence of supporting bills and vouchers. 5. Ld. CIT(A) has deleted the disallowance of deduction u/s 80IA of the Act following finding in assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce bills and vouchers before the Assessing Officer. 3. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal. 7. Heard and perused the record. 8. Ld. DR has submitted that Ld. CIT(A) has fallen in error in considering the judgment of Tribunal dated 18.02.2019 as that was in regard to challenge of the correctness of order of Ld. DCIT u/s 263. He also submitted that Ld. AO has given definitive findings in para 5.4 which still hold the field. It was submitted that the question still required to be determined if the assessee is a transferee company and for which the agreement between DIAL and Celebi Hava Service is required to be examined. He also submitted that the Articles of Association and Memorandum of the assessee should be examine to see if infrastructure includes Cargo services. 8.1 In regard to deletion of miscellaneous expenditure, he has submitted that before Ld. AO, assessee had claimed bills and vouchers were misplaced and Ld. CIT(A) without examining the ledger accounts has deleted the disallowance. 9. On the other hand, Ld. AR relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial available on record. The issue in the present ground is with respect to the allowability of claim of deduction u/s 80IA of the Act which is denied by AO but allowed by CIT(A). We find that CIT(A) in his order has reproduced the findings of Co-ordinate Bench of Tribunal in assessee's own case for A.Ys. 2011-12 2012-13 wherein it was held that assessee was eligible for deduction u/s 80IA(4) of the Act. He has further noted that since the facts are identical to that of earlier years, the assessee is eligible for claiming the deduction. Before us, Revenue has not pointed to any distinguishing facts of the case in the year under consideration and that of earlier years nor has placed any material to demonstrate that the order of Delhi Tribunal in assessee's own case for A.Ys. 2011-12 2012-13 has been set aside/stayed/over ruled by the Higher Judicial forum. In such a situation, we find no reason to interfere with the order of CIT(A) and thus dismiss the grounds of the Revenue. 12.1 Further more, Ld. CIT(A) in para no. 7.22.1 has reproduced the findings given by CIT(A), in favour of the assessee while deciding the appeal of assessee arising out of assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BIAL is a statutory body. The Hon'ble Court has held that providing duty free shops in the BIAL is in the nature of statutory functions/public functions for the convenience of the public. All the facilities provided by BIAL, be it a state, lessee, or entity, performs statutory functions in the Airport, The said decision has been followed by the Bangalore Tribunal in the case of Menzies Aviation Bobba (Bangalore) Pvt. Ltd. (supra). 6.2 The facts of the appellant's case are similar to that of Menzies Aviation Bobba (Bangalore) Pvt. Ltd and Hyderabad Menzies Air Cargo P. Ltd which have entered into an agreement with BIAL and GHIAL respectively for Air Cargo facility at Bangalore and Hyderabad airport, Hence, respectfully following the decision of the Karnataka High Court in the case of Flemingo Dutyfree (supra) and the decision of the Bangalore Tribunal in the case of ACIT vs. M/s. Menzies Aviation Bobba (Bangalore) Pvt. Ltd. (supra) which has held the agreement between that assessee and BIAL granting the assessee the concession to operate and maintain the cargo facility to be a valid agreement for the purposes of section 80IA(4), it is held that the appellant has enter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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