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TMI Blog2012 (9) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable under various provisions when the assessee has contributed something towards the infrastructure development of the country In the instant case, no find of any contribution towards the infrastructure by the assessee. The assessee is simply handling and transporting the food grains and storing at the godowns of the FCI which means that the assessee is using the existing infrastructure of the State whereas the main purpose of bringing this provision is construction of godowns specifically for stocking food grains for greater efficiency in the grain management system and minimize post harvest foodgrain losses. The assessee has not done anything towards these facilities - Even the tender participated by the assessee show that the assessee has been awarded the contract for handling and transportation of food grains to the places mentioned therein. The contention of the assessee that Sec. 80IB being a Benevolent provision liberal construction should be applied cannot be accepted because beneficial interpretation applies only where two views are reasonably possible whereas in the instant case no find of any other possible view on the facts of the matter where the law is clear a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thoughtful consideration to the nature of business of the assessee and also to the letter issued by General Manager, FCI and opined that the assessee has to perform the duties that of handling and transportation of foodgrains and storage at Bhiwandi Depot. Thereafter, the AO issued notice u/s. 133(6) of the Act to the General Manager, FCI calling further information in relation to the nature of work done by the assessee in response to which G.M. submitted copy of the tender issued by the FCI before awarding contract. 5. After considering the documents received from M/s. FCI, the AO observed that the tender invited by M/s. FCI is for appointing handing and transport contractor and the activities to be carried out by the contractor are in the nature of handling and transportation. There is no mention of any storage work/activity to be performed by the contractor. The AO further observed that the assessee did not have any storage of his own and no storage was taken by the assessee on rent. Therefore, the assessee does not fulfill all the conditions as mentioned u/s. 80IB(11A) of the Act. To examine the claim of the assessee, the AO issued summons to the Dy. General Manager (Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d grains emphasizes in the depot and the time till they are liquidated therefore it was stated that the H T contractor are involved in the process of storage. 7. The AO after giving thoughtful consideration to the statement of Shri Sugriv Sable and considering the facts in totality came to the conclusion that the assessee has not fulfilled all the conditions so as to make him eligible for deduction u/s. 80IB(11A) of the Act and held that the assessee is not engaged in the integrated business of transportation, handling and storage of food grains and therefore the assessee is not eligible for deduction u/s. 80IB(11A) of the Act and accordingly rejected the claim of the assessee. 8. The assessee agitated this matter before the Ld. CIT(A) and reiterated his stand that he is doing the integrated business of handling, storage and transportation of food grains and therefore it is eligible for deduction u/s. 80IB (11A) of the Act. 9. The Ld. CIT(A) gave a thoughtful consideration to the statement of Shri Sugriv Sable recorded by the AO during the course of assessment proceedings and came to the conclusion that Shri Sugriv Sable was very much categorical in his statement that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red per cent of the profits and gains derived from such undertaking for five assessment years beginning with the initial assessment year and thereafter, twenty-five per cent (or thirty per cent where the assessee is a company) of the profits and gains derived from the operation of such business in a manner that the total period of deduction does not exceed ten consecutive assessment years and subject to fulfilment of the condition that it begins to operate such business on or after the 1st day of April, 2001 :] [Provided that the provisions of this section shall not apply to an undertaking engaged in the business of processing, preservation and packaging of meat or meat products or poultry or marine or dairy products if it begins to operate such business before the 1st day of April, 2009.]" 14. A plain reading of the aforementioned provisions show that the deduction is available to an undertaking deriving profit from three business activities. We are not concerned with the first two business activities. We are concerned with the third business activity. For our convenience, let us reframe the provision which is as under: "The amount of deduction in a case of an undertaking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fruits and vegetables as newly added from A.Y. 2005-06, while the relief has been available w.e.f. 1.4.2002 for all undertakings, which have begun to operate on or after 1st April, 2001 for any income from "the integrated business of handling, storage and transportation of food grains" using the very language of the policy. Both the construction as well as the preservation contract are subject to an agreement with central or State Warehousing Corporation in pursuance of the policy and the other papers issued from time to time by the Government. 15. It is not in dispute that the assessee is neither the owner nor the lessee of the godown. The ownership vests with the FCI. The Ld. Counsel submitted that even when the assessee was carrying food grains in his truck, he was in the process of storage of food grains. To substantiate, the Ld. Counsel relied upon the decision of the Hon'ble High Court of Orissa in Criminal Revn. No. 43 of 1951 decided on 15.01.1953 in the case of Balabhadra Raja Guru Mohapatra v. The State AIR 1954 Orissa 95 and submitted that in this case, the Hon'ble High Court of Orissa has held that carrying of goods in a truck amounts to storage. We have care ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. 80P(2)(e) on the pretext that rental income received by it on letting out of shop amounted to rental income received from godowns or warehouses. After considering in detail, the meaning of the words "godowns and warehouses" and the Legislative intent for allowing deduction u/s. 80P(2)(e) of the Act, the Hon'ble High Court held that assessee society must show that it has derived income from the letting of godowns or warehouses which it has failed because it has received rental income from the letting of shops used for business in cloth which cannot be said to be income derived from letting of godowns and warehouses. In our humble opinion this decision also does not help the assessee on the facts of this case. 16. Taking a leaf out of the above said decision, we find that the Hon'ble Gujarat High Court has referred to the observations of the Hon'ble Supreme Court in the case of CGT v. N.S. Getti Chettiar [1971] 82 ITR 599 at pages 605-606 of the said judgement, the Hon'ble Supreme Court has observed as under: "Words in the section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spelling out the meaning of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberal construction should be applied cannot be accepted because beneficial interpretation applies only where two views are reasonably possible whereas in the instant case, we do not find any other possible view on the facts of the matter where the law is clear and unambiguous, we cannot act contrary to it with a view to give benefit to the assessee. After considering the entire facts in totality alongwith the Legislative intent, in our considerate view, the assessee has not fulfilled the conditions precedent for making him eligible for deduction u/s. 80IB(11A) of the Act. We find that the Ld. CIT(A) has been carried away with the certificate issued by DGM of FCI. The DGM in his wisdom may have issued the certificate without considering the Legislative intent of the scheme, therefore we cannot give much weightage to such certificate. The Ld. CIT(A) has erred in allowing deduction to the assessee which he is not eligible. Accordingly, the finding of the Ld. CIT(A) is reversed. 18. In the result, the appeal filed by the Revenue is allowed. ITA NO. 3217/M/2010 - A.Y. 2006-07 19. The issue involved is same though quantum may differ. On similar lines, similar reasons, mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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