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TMI Blog2021 (9) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... s the CIT(A)] relevant to assessment year 2013-14. 2. The assessee has raised only one ground of appeal which is reproduced as under: The Ld. CIT(A) erred confirming the disallowance made by the AO of the deduction claimed by your appellant u/s 80IA of ₹ 84,14,990/- of the Act 3. At the outset, the Ld. Counsel of the assessee brought to the notice of the Bench the delay of 427 days in filing the appeal. The Ld. A.R. submitted that the order of Ld. CIT(A) was received on 28.04.2018 and thereafter immediately scanned and sent to the consulting chartered accountant of the assessee Mr. Amit Dhavale on his email and thereafter the assessee was bonafide impression that necessary action has been taken by the chartered accountant of the assessee. The ld AR submitted that unfortunately the email of the chartered accountant was not functional and therefore he was not aware of the order of Ld. CIT(A) sent to him. It is only when the assessee enquired about the status of the appeal it came to know that no appeal has been filed before the Tribunal against the order of Ld. CIT(A) within 60 days and hence this delay in filing the appeal. The Ld. A.R. submitted that the subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IDCO to construct a parking lot called truck terminal having facilities on BOT basis. Under the terms of award, the assessee was responsible for repair, maintenance and operation of the said terminal. The assessee used to collect fee from the truck owners from the trucks and also pay yearly fee to CIDCO. According to the AO the assessee is not eligible for deduction under section 80IA of the Act on the ground that the truck terminal is not an infrastructure facility which was affirmed by Ld. CIT(A) in the appellate order. According to the revenue authorities the truck parking terminal is an independent contract with CIDCO which has nothing to do highways. So the issue before us is whether the truck terminal is an integral part of highways or not. We note that Finance Act, 2001 has modified the definition of infrastructure facility which means a highway project including housing or other activities being an integral part of the highway project. It is clear from the amended definition that any infrastructure which is part of the high way falls within the definition of infrastructure. After perusing the facts on record carefully and also examining the terms and conditions of award of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g business would certainly be profits and gains of the business in terms of section 28 of the Act, the same would not amount to profits or gains derived from the industrial undertaking. The learned Departmental representative further referred to the hon'ble Calcutta High Court's decision in the case of Mukherjee Estate (P.) Ltd. v. CIT [2000] 244 ITR 1/113 Taxman 313 for the proposition that income mainly publicity charges by putting up hoarding/displaying advertisement from a building cannot be treated as income from property but income from other sources. The learned Departmental representative further submitted that the above proves that the assessee's income does not include any profit which is derived from developing or (ii) operating and maintaining or (iii) developing, operating and maintaining foot overbridge and bus shelter. The learned Departmental representative further submitted that the hon'ble Karnataka High Court in the case of CIT v. Skyline Advertising (P.) Ltd. [2014] 225 Taxman 220 (Mag.)/45 taxmann.com 532 , has held that the benefit under section 80-IA of the Act can be extended only to those assessees who have developed infrastructure facility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d gains of the business in terms of section 28 of the Act, the same would not amount to profits or gains derived from the industrial undertaking. The learned Departmental representative further referred to the hon'ble Calcutta High Court's decision in the case of Mukherjee Estate (P.) Ltd. v. CIT [2000] 244 ITR 1/113 Taxman 313 for the proposition that income mainly publicity charges by putting up hoarding/displaying advertisement from a building cannot be treated as income from property but income from other sources. The learned Departmental representative further submitted that the above proves that the assessee's income does not include any profit which is derived from developing or (ii) operating and maintaining or (iii) developing, operating and maintaining foot overbridge and bus shelter. The learned Departmental representative further submitted that the hon'ble Karnataka High Court in the case of CIT v. Skyline Advertising (P.) Ltd. [2014] 225 Taxman 220 (Mag.)/45 taxmann.com 532 , has held that the benefit under section 80-IA of the Act can be extended only to those assessees who have developed infrastructure facility as defined under section 80-IA(4) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirming the order of the Income-tax Appellate Tribunal in quashing a revision order passed by the learned Commissioner of Income-tax under section 263 of the Act whereby allowance of section 80-IA of the Act on bus shelters and foot overbridges was disallowed. 12. Learned counsel for the assessee further submitted that section 80-IA of the Act provides for deduction on account of profits and gains derived by an industrial undertaking from any business referred to therein. Learned counsel further submitted that the hon'ble apex court in the case of Liberty India (supra ) dealt with the question whether the profit from the Duty Entitlement Pass Book Scheme (DEPB) and the Duty Drawback Scheme could be said to be profit derived from the business of an industrial undertaking eligible for deduction under section 80-IB of the Income-tax Act. Hence he submitted that this case law does not support the case of the Department. He further submitted that the very agreements under which the assessee has developed, operated and maintained the infrastructure facility at its own cost provided for revenue generation by the assessee by the display of commercial advertisement on the infrastr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on this issue. We uphold the same and dismiss this ground of appeal taken by the Department. 11. Learned counsel further submitted that the abovesaid order of the Tribunal had been appealed against by the Department in the hon'ble High Court and the hon'ble Calcutta High Court has not yet reversed the decision of the Income-tax Appellate Tribunal. Hence he submitted that the Tribunal's orders should be sustained. Learned counsel further submitted that the issue involved is covered in favour of the assessee by the decision of the Tribunal in the case of Dy. CIT v. Selvel Advertising (P.) Ltd. [2015] 58 taxmann.com 196 (Kol.) wherein the identical issue has been decided in favour of the assessee. In that case it was also pointed out that the hon'ble Calcutta High Court had passed an order confirming the order of the Income-tax Appellate Tribunal in quashing a revision order passed by the learned Commissioner of Income-tax under section 263 of the Act whereby allowance of section 80-IA of the Act on bus shelters and foot overbridges was disallowed. 12. Learned counsel for the assessee further submitted that section 80-IA of the Act provides for deduction o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled to deduction under section 80-IA of the Act for construction of foot overbridge as well as bus shelter is covered in favour of the assessee by the decision of the Tribunal and the hon'ble Calcutta High Court as referred to in the submissions of learned counsel for the assessee. The Tribunal in the assessee's own case as well as in the case of Selvel Advertising (P.) Ltd. (supra ) has held that bus shelters and foot overbridges should be considered as part of the infrastructure facility for claiming deduction under section 80-IA of the Act. This issue was also supported by the decision of the hon'ble Calcutta High Court in the case of Selvel Advertising (P.) Ltd. (supra ) wherein the hon'ble High Court has upheld the Income-tax Appellate Tribunal's decision quashing the revision order passed by the learned Commissioner of Income-tax under section 263 of the Act wherein bus shelters and foot overbridges were not to be considered as part of the infrastructure facility for claiming deduction under section 80-IA of the Act. 14. As regards the issue raised by the learned Departmental representative that the income which is the subject matter of claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in terms of section 253(2) of the Act. No leave was obtained to urge the ground in regard to the status as regards the liability to tax. The Tribunal erred in law in setting aside the findings given by the Appellate Assistant Commissioner that the assessee was a separate entity and the assessment made in the case of the assessee should be treated as substantive. 17. Thus from the above we hold that the issue which was not the basis of disallowance by the Assessing Officer and the same was not the subject-matter of consideration by the learned Commissioner of Income-tax (Appeals) and the same was also not the subject-matter of the ground of appeal taken before the Incometax Appellate Tribunal the issue now being raised by the learned Departmental representative need not be adjudicated by us. Hence on the issue as to whether foot overbridges and bus shelters qualify for deduction of section 80-IA of the Act we hold that the learned Commissioner of Income-tax (Appeals) is correct in holding the assessee's entitlement for deduction under section 80-IA of the Act. Accordingly, this ground of appeal raised by the Revenue stands dismissed. 9. Since the issue in the cur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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