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TMI Blog2013 (6) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... eby remanding the matter back to the Assessing Officer for consideration on the question of character of a receipt, by raising the following substantial questions of law: "1.Whether the ITAT has erred in considering an issue, which has attained finality and not been challenged by the respondent in their appeal before the ITAT? 2. Whether the Tribunal has the jurisdiction to go into issues (like deduction under Section 80IA (4)) that are not subject matter of the appeal or have never been raised in the grounds of appeal without following the procedure set out in Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1962?. 3. Whether ITAT is right in setting aside the matter to the files of the respondent when there was no grievance in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired by the lessee. Admittedly, the assessee, being a developer of industrial park was duly recognised by Investment Promotion & Infrastructure Development Cell of the Secretariat of Industrial Assistance of the Department of Industrial Policy & Promotion in Ministry of Commerce and Industry, the Government of India under the Industrial Park Scheme, 1999 framed by the Central Government under Section 80IA(4) of the Income Tax Act. The recognition was given as early as August 2001. It is stated by the assessee that it constructed towers in the Industrial Park and let them out to software concerns providing a platform with plug and play infrastructure. Pointing out to the various facilities offered in the buildings let out treating the rental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an any undertaking which is engaged in the business of developing and operating or maintaining the industrial park notified by the Central Government in accordance with the scheme, the first Appellate Authority held that income derived by the assessee from letting out of industrial park was to be regarded as income from business. Having held so, the Commissioner of Income Tax (Appeals) held that in any event, for the purpose of considering the deduction under Section 80IA of the Income Tax Act, the question of considering the character of the receipts was immaterial. Once the approval of the Ministry was there, then the assessee was eligible for deduction under Section 80IA(4)(iii) of the Income Tax Act. Considering the fact that the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d operating or maintaining an industrial park was assessable under the head of Profit and Gains of business or profession as could be inferred from the provisions of Section 80IA(4)(iii) of the Act. Pointing out to the view of the Commissioner of Income Tax (Appeals) that the relief under Section 80IA(4)(iii) of the Act would be available even if the property in question was treated as income from house property, the Tribunal held that the assessee as well as the Revenue had not brought out any materials to show that the facilities developed by the assessee after completion of the development was treated as an industrial park by any authority and it was not clear that whether the alleged industrial park was so notified by the Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in law. He submitted that such enquiry is inconsequential as to the relief under Section 80IA. 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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