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TMI Blog2018 (5) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... .05.1983. The term ‘Inland Port’ has been defined nowhere. But the Notification that has been issued by the Central Board of Excise & Customs (CBEC) dated 24.04.2007 in terms holds that considering the nature of work carried out at these ICDs they can be termed as Inland Ports- The communication dated 25.05.2009 issued on behalf of the Ministry of Commerce and Industry confirming that the ICDs are Inland Ports, fortifies the claim of the respondent herein. Though both the Notification and communication are not binding on CBDT to decide whether ICDs can be termed as Inland Ports within the meaning of Section 80-IA the appellant herein is unable to put forward any reasonable explanation as to why these notifications and communication should not be relied to hold ICDs as Inland Ports. Unless shown otherwise, it cannot be held that the term ‘Inland Ports’ is used differently under Section 80-IA of the IT Act. All these facts taken together clear the position beyond any doubt that the ICDs are Inland Ports and subject to the provisions of the Section and deduction can be claimed for the income earned out of these Depots. The actual computation is to be made in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Prasad, Adv., For Mrs. Anil Katiyar, AOR, Mr. Salil Kapoor, Adv., Mr. Sumit Lalchandani, Adv., Ms. Soumya Singh, Adv., Mr. Sanat Kapoor, Adv., Ms. Ananya Kapoor, Adv., Mr. Praveen Swarup, AOR, Mr. Pawanshree Agrawal, AOR, Dr. Shashwat Bajpai, Adv., Mr. Sharad Agarwal, Adv., Dr. Rakesh Gupta, Adv., Mr. Somil Agarwal, Adv., Mr. Sunny Choudhary, AOR, Mr. Ambhoj Kumar Sinha, AOR, Mr. Rohit Kumar Gupta, Adv., Ms. Monika Ghai, Adv., Mr. Rameshwar Prasad Goyal, AOR, Mr. V. Ramasubramanian, AOR, Mrs. Rani Chhabra, AOR, Mr. Vijay Kumar, AOR, Mr. C.D. Singh, Adv., Ms. Vidushi Garg, Adv., Ms. Surbhi Mehta, AOR, Mr. Jayant Mohan, AOR, Mr. Ajay Vohra,Sr.Adv., Ms. Kavita Jha, AOR, Mr. Udit Naresh,Adv. Ms. Archana Pathak Dave, AOR, Mr. I.P. Basnal, Adv., Mr. Vivek Bansal, Adv., Mr. Aneesh Mittal, AOR, Ms. Srishti Singh, AOR JUDGMENT R.K.Agrawal, J. 1) Leave granted. 2) The present appeal has been filed against the judgment and order dated 11.05.2012 passed by the High Court of Delhi in ITA Nos.1411 of 2009, ITA Nos. 967 and 968 of 2011 wherein the Division Bench of the High Court while allowing the above appeals filed by the respondent herein set aside the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod under consideration under Section 80-IA of the IT Act. Being aggrieved by the judgment and order dated 11.05.2012, the Revenue has preferred this appeal before this Court. 4) Heard learned senior counsel for the parties and perused the factual matrix of the case. Points for consideration: - 5) The only point for consideration before this Court is whether in the facts and circumstances of the case the Inland Container Depots (ICDs) under the control of the Respondent, during the relevant period, qualified for deduction under Section 80-IA(4) of the IT Act or not. Rival contentions: - 6) Learned senior counsel appearing for the appellant contended that the High Court was not right in holding that the Respondent is entitled to deduction under Section 80-IA of the IT Act as the activities undertaken by the assessee cannot be said to fall within Explanation (d) of Section 80-IA(4) defining the term infrastructure facility. 7) Learned senior counsel further contended that the High Court was wrong in placing reliance on the Notification dated 01.09.1998 issued by the Central Board of Direct Taxes (CBDT) to hold that the Respondent is allowed to claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. The term ICDs was inserted in 1983 under Section 2(12) of the Customs Act, 1962 which defines customs port and by the provisions of Section 7(1)(aa) of the Customs Act,1962 power has been given to the Central Board of Excise and Custom(CBEC) to notify which place alone to be considered as Inland Container Depots for the unloading of imported goods and the loading of export goods by Notification in the official Gazette. 11) With the purpose of boosting country s infrastructure and specially the transport infrastructure, the Finance Act, 1995 which came into effect from 01.04.1996 brought an amendment to the provisions of Section 80-IA of the IT Act. Section 80-IA of the IT Act talks about deduction in respect of profits and gains from industrial undertaking or enterprises engaged in the infrastructure development etc. The said amendment for the first time brought a provision under which a percentage of profits derived from the operation of infrastructure facility was allowed a deduction while computing the income of the assessee. A ten years tax concession allowed to the enterprises in accordance with the provisions of the Section subject to fulfillment of conditions give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken away. The new explanation to Section 80-IA(4) of the IT Act as is substituted by the Finance Act, 2001 reads as under: For the purpose of this clause infrastructure facility means- (a) a road including toll road, a bridge or a rail system; (b) a highway project including housing or other activities being an integral part of the highway project; (c) a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system; (d) a port, airport, inland waterways or inland port; 17) It was contended on behalf of the appellant that the High Court erred in relying on the Notification issued by CBDT to hold that the enterprises holding ICDs are allowed to claim deductions under Section 80-IA of the IT Act. As the said power of the Board was specifically taken away by the amendment made by Finance Act, 2001, in light of the said amendment, the Notifications which were issued by the CBDT would cease to operate after the Assessment Year 2002-03. 18) The argument put forward by learned senior counsel for the appellant does not have much force as the said amendment is silent with regard to any effect it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are in a habit of loading and unloading goods. The term Port as is used in the Explanation attached to Section 80-IA(4) seems to have maritime connotation perhaps that is the reason why the word airport is found separately in the Explanation. Considering the nature of work that is performed at ICDs, they cannot be termed as Ports. However, taking into consideration the fact that a part of activities that are carried out at ports such as custom clearance are also carried out at these ICDs, the claim of the respondent herein can be considered within the term Inland port as is used in the Explanation. It is significant to note that the word Inland Container Depots was first introduced in the definition of Customs Port as is given in Section 2(12) of the Customs Act, 1962, through amendment made by the Finance Act, 1983 with effect from 13.05.1983. 22) The term Inland Port has been defined nowhere. But the Notification that has been issued by the Central Board of Excise Customs (CBEC) dated 24.04.2007 in terms holds that considering the nature of work carried out at these ICDs they can be termed as Inland Ports. Further, the communication dated 25.05.2009 issued on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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