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TMI Blog2021 (9) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee is engaged in development operation and maintenance of an infrastructure facility in the light of provisions of SPRH agreement. Revenue was unable to point out any perversity in the findings of fact recorded by the Commissioner of Income Tax (Appeals) as well as by the Tribunal. It is well settled in law that the concurrent findings of fact do not suffer from any perversity warranting interference of this court in exercise of powers under Section 260A of the Act. [SEE: SYEDA RAHIMUNNISA VS. MALAN BI BY L.RS. AND ORS. [ 2016 (10) TMI 1233 - SUPREME COURT] and PRINCIPAL COMMISSIONER OF INCOME TAX, BANGALORE ORS. VS. SOFTBRANDS INDIA P. LTD. [ 2018 (6) TMI 1327 - KARNATAKA HIGH COURT] - Decided in favour of the assessee. - I.T.A.NO.224 OF 2021 - - - Dated:- 9-8-2021 - HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA AND HON BLE MR. JUSTICE SACHIN SHANKAR MAGADUM APPELLANTS (BY SRI.SANMATHI E I, ADVOCATE) RESPONDENT (BY SRI. ANNAMALAI. S, ADVOCATE) JUDGMENT Shri S.Annamalai, learned counsel accepts notice on behalf of the respondent. 2. The present Income Tax appeal is arising out of the order passed in respect of assessment year 2014-15 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f State? . Whereas, ITA No.162/2014 was admitted by the same order on the following substantial questions of law: 1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the assessee is eligible for deduction under section 80IA(4) despite holding that it has not entered into an agreement with a statutory body as required in the provisions of section 80IA(4)? 2. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that the cargo handling on contract by the assessee is equivalent to development, operation and maintenance of infrastructure facility as defined in section 80IA(4)? 2. For the facility of reference, facts from ITA No.262/2014 are being mentioned, which are that the assessee is a company engaged in the business of cargo handling at Bengaluru International Airport Limited, Devanahalli, Bengaluru (hereinafter referred to as 'the BIAL' for short). The assessee provides cargo handling services to Airlines and clearing / forwarding at BIAL. The assessee filed return of income for the Assessment Year 2009-10 on 26.09.2009 declaring the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TED 19.12.2008 and held that BIAL is a statutory body and allowed the appeal preferred by the assessee. Being aggrieved by the order of the Tribunal, the revenue has filed the appeal namely ITA No.186/2016 whereas ITA No.262/2014 has been filed against the order of the Tribunal dated 30.01.2014 wherein it has been held that the cargo handling facility falls within the expression 'infrastructure facility'. In the aforesaid factual background, these appeals have been filed. 4. Learned counsel for the revenue, while inviting the attention of this Court to Section 80IA(4) of the Act, submitted that the aforesaid provision is available to an undertaking which is engaged in infrastructure development and is engaged in the business of developing, operating and maintenance of any infrastructure facility and fulfills all the conditions mentioned in Section 80IA(4)(i) of the Act. It is also submitted that in order to comply with the requirement as contemplated under Section 80IA(4)(i)(b) of the Act, the assessee has to enter into an agreement with the Central Government or a State Government or a local authority or any statutory body for developing or operating and maintaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larify that the cargo handling facility is not included under Section 80IA of the Act, our attention has also been invited to the definition of 'infrastructure facility' as defined in explanation appended to Section 80IA(4)(i)(b) of the Act. In support of aforesaid submission, reliance has been placed on the Constitution Bench decision of the Supreme Court in 'COMMISSIONER OF CUSTOMS (IMPORT) MUMBAI Vs. DILIP KUMAR CO' (2018) 68 GST 239. 6. On the other hand, learned Senior counsel for the assessee submitted that in order to avail off the benefit of Section 80IA(4)(i) of the Act, the assessee is required to satisfy two conditions, firstly that the assessee should enter into an agreement with the statutory body and consequently, the assessee should be engaged in development of an infrastructure facility within the meaning of Section 80IA(4) of the Act. It is submitted that sofar as first issue is concerned, the same is no longer res integra as it has already been decided by this Court in M/s. FLAMINGO DUTYFREE SHOPS PVT. LTD. and the aforesaid decision has rightly been followed by the Tribunal which was binding on it. It is also pointed out that the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the evidence on record which are not to be demonstrated to be perverse by the revenue. In support of aforesaid submission, reliance has been placed on the decision of the High Court of Madras in 'COMMISSIONER OF INCOME TAX, COIMBATORE Vs. CHETTINAD LIGNITE TRANSPORT SERVICES (P) LTD.' (2019) 107 TAXMANN.COM 12 (MADRAS) AND 'COMMISSIONER OF INCOME TAX, COIMBATORE Vs. CHETTINAD LIGNITE TRANSPORT SERVICES (P) LTD.' (2019) 107 TAXMANN.COM 362 (MADRAS). 8. We have considered the submissions made on both sides and have perused the record. Before proceeding further, it is apposite to take note of Section 80IA of the Act, the relevant extract of which is reproduced below for the facility of reference: 80IA. Deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development, etc. 80-IA. (1) 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 in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat BIAL is a statutory body. Thus, the assessee has complied with the aforesaid condition. It is pertinent to mention here that the Special Leave Petition against the aforesaid decision has been disposed of by order dated 16.09.2016. Thus, the view taken by this Court in M/s. FLAMINGO DUTYFREE SHOPS PVT. LTD. holds the field. In view of aforesaid enunciation of law, it is evident that the assessee has complied with the condition of entering into an agreement with the statutory body. 10. Now, we may deal with the issue whether the activity of the assessee in providing cargo handling services is covered under the expression 'infrastructure development'. The Commissioner of Income Tax (Appeals), vide order dated 11.06.2012, inter alia has held that from perusal of the layout map of the airport, it is evident that the cargo complex is connected to other infrastructure facilities by airside service road running parallel to the main runway. The aforesaid road serves the isolation bay, fire station, cargo complex, fuel farm and maintenance area as per Clause 4 of the concession agreement between the BIAL and Government of India. It has further been held that cargo handling ..... X X X X Extracts X X X X X X X X Extracts X X X X
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