9911796707
TMI Blog2013 (6) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... of Direct Taxes, vide its notification dated 26.12.1999, has also notified the industrial park under section 80IA(4)(iii). It is to be seen from both the above documents that the deduction under section 80IA has not been granted in perpetuity, but it is liable to be withdrawn if the assessee violates the conditions specified therein. However, till date no such withdrawal has come. So, the assessee enjoys the status of an eligible undertaking under section 80IA (4) (iii). Thus uphold the CIT(A)'s order that the assessee is eligible for claiming deduction u/s 80IA (4)(iii) qua the lease income in question. Depreciation for electrical items - CIT(A) directed the AO to grant claim - Held that:- On perusal of the CIT(A) order, it is found that qua this issue, he has relied upon his predecessor's order dated 16.01.2007 as well as tribunal 's order dated 08.08.2008 for assessment year 2003-2004 directing the AO that substance should prevail over the nomenclature and decide it afresh. As no material has been placed on record as how the issue has been decided by the AO CIT(A) has righty remitted the issue back to the file of the AO and find no reason to interfere. Car parking charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaking engaged in development of infrastructure, it had claimed deduction under section 80IA of the 'Act' Rs 38,18,62,561/-. In the impugned assessment year, its total receipts read as follows:- Rental Income from modules : 51,98,81,901/- Other Rent Car parking charges : 1,04,91,333/- Communication elect. Charges : 43,13,333/- Electrical room rent : 5,21,408/- Other rental income : 22,55,000/- Rental two wheeler parking : 4,95,675/- Rent for usage area : 2,20,104/- Telecom room rent : 3,58,997/- Usage of cable ded (trench) : 5,04,730/- 1,91,60,582/- Auditorium Rent 29,45,799/- Rental income total 54,19,88,282/- Operation and maintenance charges 8,78,66,158/- Interest income 5,19,19,060/- Income from power generation 1,15,45,584/- Revenue sharing income 23,74,513/- Other Income 15,38,478/- Total 69,72,32,075/- 3. It is noticed from the assessment order dated 18.12.2009 that the Assessing Officer reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th them at an appropriate stage. 7. First, we come to the contention of the Revenue that assessee's income in question deserves to be treated under the head 'house' property instead of 'business' income. The submissions of the Revenue in support of the contentions are that admittedly, the assessee has raised the receipts through rental activities. In other words, it stresses that since the assessee has executed lease agreements qua modules etc, the receipts in question do not give rise to any 'business' income for the purpose of deduction under section 80IA(4)(iii) of the 'Act'. In reply, the assessee has produced copy of :- the order in ITA No.2120 2121/Mds/2011 and CO No.16 17/Mds/2012; respectively, dated 11.04.2013 for assessment years 2003-2004, 2005-2006 and submitted that the very issue stands decided in its favour. In light thereof, it prays for rejection of the Revenue's contentions. 8. After giving our thoughtful consideration, we find that there is no dispute on facts. The assessee has developed a software park by the name of ' Tidel Information Technology Park'; wherein, it has leased out its modules and other facilities to various clients in lieu of lease/rent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been concluded that the assessee is entitled for deduction under section 80IA(4)(iii). The relevant extract reads as under:- "12. It is crystal clear from the above that Assessing Officer had, during the original assessment proceedings itself considered the deductibility of each of the items of income claimed by the assessee under section 80-IA of the Act. Assessing Officer has made an observation that every nature of income derived from industrial undertaking was not eligible for such exemption. He had thereafter held that interest income, miscellaneous income and other rent were not eligible for such exemption. In the face of the above, it is difficult to accept the plea of the Counsel for the Ld. DR that Assessing Officer had not applied his mind with regard to the deduction claimed by the assessee under section 80-IA of the Act. No doubt, Assessing Officer, has not in so many words mentioned anything about the decision of Hon'ble Jurisdictional High Court in the case of CIT Vs. Chennai Properties and Investments Ltd.(supra). But in the said case, assessee was a company deriving, inter alia, rental income from letting out of two buildings called 'Chennai house'' and "Firhava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that qua this issue, he has relied upon his predecessor's order dated 16.01.2007 as well as tribunal 's order dated 08.08.2008 for assessment year 2003-2004 in ITA No.750/Mds/2007 directing the AO that substance should prevail over the nomenclature and decide it afresh. Before us, no material has been placed on record as how the issue has been decided by the Assessing Officer. That being the case, we are of the view that the CIT(A) has righty remitted the issue back to the file of the Assessing Officer and find no reason to interfere. Accordingly, the Revenue's appeal is dismissed. 11. Now, we come to the pleadings of the assessee wherein its receipts in question of car parking charges, communication electrical charges, electrical room rent, other rental income, rental two wheeler parking, rent for usage area, telecom room rent and usage of cable duct(trench) of Rs. 1,04,91,333/-, Rs. 43,13,333/-, Rs .5,21,408/-, Rs .22,55,000/-, Rs.4,95,675/-, Rs .2,20,104/-, Rs.3,58,997/- and Rs 5,04,730/-; respectively totaling . Rs 1,91,60,582/- (supra) are prayed to be treated as 'business' income instead of 'other' sources as held by the CIT(A). Its grounds read that operation and main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... infrastructure of the STP under consideration. 2.2. Section 80IA(1) provides for as under:- "Where the gross total income of an assessee includes any profits and gains derived by an undertaking or an enterprise from any business referred to into sub-section (4) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total on come of the assessee, a deduction of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive assessment years''. A ready of the above makes it clear that profits and gains, which are derived from the eligible business, qualify for exemption under this section. 2.3. We find that Hon'ble Apex Court in the case of CIT Vs. Sterling Foods 237 ITR 579(Hon'ble Supreme Court) had held that, "The provisions of Section 28 as amended made no difference. The word "derive" is usually followed by the word "from'' and it means; ''get, to trace from a source; arise from, originate in, show the origin or formation off''. The source of import entitlements could not be said to be the industrial unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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