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TMI Blog2018 (7) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the Revenue to again insist on a decision on the character of the receipt. - Decided in favour of assessee - T.C.A. No. 336 of 2018 - - - Dated:- 3-7-2018 - S. Manikumar And Subramonium Prasad, JJ. For Appellant : Mr.T.R.Senthil Kumar Senior Standing Counsel for Income Tax. JUDGMENT ( Judgement of this Court was made by S. Manikumar, J. ) Challenge in this Tax Appeal, is to an order passed by the Income Tax Appellate Tribunal in ITA No.335/Mds/2013, dated 13.09.2013, by which, the Tribunal has allowed the appeal preferred by the assessee against the order of the Commissioner of Income-Tax (Appeals-V), Chennai, dated 30.11.2012, for the Assessment Year 2009-10. 2. Revenue has come up with the instant appeal, raising the following substantial question of law:- Whether the ITAT has correctly interpreted the judgement of Hon'ble High Court so as grant relief to the assessee u/s.80IA(4) without going into admissibility of the claim on merits 3. When the matter was taken up for admission, at the outset, Mr.T.R.Senthil Kumar, learned Senior Standing Counsel for Income Tax Department fairly submitted that, on a similar issue, between the same par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We agree with the submissions made by learned senior counsel for the assessee. As already seen, two questions were raised before the Commissioner of Income Tax (Appeals), one relating to nature of receipt on letting out the property as an industrial park as approved by designated authority from the Investment Promotion Infrastructure Development Cell of the Secretariat of Industrial Assistance of the Department of Industrial Policy and promotion in Ministry of Commerce and Industries of the Government of India and other relating to disallowance of claim of deduction under Section 80IA of the Act on the ground of the receipt being held as income from house property. On analysing the facts and on going through the certificate issued, the first Appellate Authority held that the unit was eligible for relief under Section 80IA of the Act. As to the character of the receipt, he held that income received by the assessee was to be assessed as income from business only. Thus, on the claim of deduction for the above said receipt under Section 80IA, the Commissioner of Income Tax (Appeals) pointed out that the approval of the Ministry stated that the assessee was eligible for deduction unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finality. Even though learned standing counsel for the Revenue placed heavy reliance on Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1962, we do not find any ground to uphold the said stand considering the fact that the subject matter of the appeal before the Tribunal being one on the character of the receipt and the issue regarding the deductibility under Section 80IB irrespective of the character of the receipt not being an issue raised by the Revenue even as an additional ground, when the Revenue had no grievance at all as regards the consideration for grant of relief under Section 80IA(4)(iii) of the Act, we do not find any justification in the order of the Tribunal, ordering remand on the issue which does not arise at all for the purpose of a decision thereon. Further there is nothing on record to show that the Revenue raised this as an additional issue even for the purpose of considering Rule 11. 9. In the circumstances, the order of the Tribunal is set aside and the appeals filed by the assessee are allowed. No costs. Consequently, connected MPs are closed. 6. Following the above Division Bench judgement, in the instant case pertaining to assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the deduction under Section 80IA would be allowed, even if the rental income is assessed as income from house property. Further he relied on the decision of the Apex Court reported in 57 ITR 306 - COMMR. OF INC. TAX v. COCANADA RADHASWAMI BANK LTD that the head under which income is assessed is not relevant for the purpose of claiming exemption under the Act. When the Revenue had accepted the view of the Commissioner of Income Tax (Appeals) on Section 80IA that the assessee had complied with Section 80IA(4)(iii) of the Act, there remains nothing for an enquiry either as to the nature of the receipt or for that matter the facilities developed to be treated as an industrial park to consider the question of deduction under Section 80IA(4)(iii) of the Act. In the background of the above state of affairs, we hold that the view of the Commissioner of Income Tax (Appeals) in this regard does not call for any interference. For the reasons best known and we think, rightly so, the Revenue did not challenge order of the Commissioner of Income Tax (Appeals) on 80IA deduction before the Tribunal. The said fact is not disputed by the Revenue too. Thus, when the character of the receipt is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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