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TMI Blog2022 (1) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and granted relief to the assessee. Thus the order passed by the CIT(A) was challenged before the Tribunal and the Tribunal by order dated 30th October, 2007 dismissed the appeal of the revenue and the assessing officer has also given effect to the order and allowed deduction under Section 80-IA for which is the first year in the period of ten years. It goes without saying if the assessee has been granted the benefit for the first year the assessing officer should take a consistent stand in the subsequent years unless there are any other change in circumstances warranting a different decision. In the case on hand, there is nothing on record that there was any change in the situation. We are of the considered view that the letter and the agreement which were produced by the assessee is undoubtedly a certificate issued by the port authorities and would satisfy the requirement in Circular No. 10 of 2005. The Tribunal on its part also re-examined the factual position and noted the decision in assessee s own case for the assessment year 2003-2004 while grating relief to the assessee. From the above factual position it is evidently clear that the Tribunal rightly rejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and agency work. The head office of the assessee company is at Calcutta and they are engaged in port activities at Haldia, Paradip and Mumbai. At Haldia Port they have activities at Berth No. 12 and the question is whether they are eligible for deduction under Section 80-IA of the Act. For the assessment year 2004-2005 the assessee filed the return of income and claimed deduction under Section 80-IA for expenses for repairs and maintenance. Similar was the claim made by the assessee for the assessment year 2005-2006. The assessing officer by two separate orders dated 29th December, 2006 and 31st December, 2007 for the assessment years 2003-2004 and 2004-2005 respectively rejected the claim. Since the assessment order is verbatim the same and the assessing officer is also the same person suffice to refer to the assessment order dated 29th December, 2006 for the assessment year 2004-2005. The assessing officer noted that the assessee company had claimed deduction under Section 80-IA for operating and maintaining multi purpose Berth No. 12 at Haldia Dock Complex. They submitted a letter dated 20th November, 2006 issued by the port authorities stating that Berth No. 12 at Haldia Doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the CITA wherein it was held that the assessee was entitled for the deduction under Section 80-IA of the Act which order has been affirmed by the Tribunal by order dated 30th October, 2007. Therefore, the assessee contended that they are entitled for deduction for the assessment year under consideration before us as for the first year such benefit had been granted which stood concluded by the order passed by the Tribunal. The CIT(A) upon taking note of the said order passed by the Tribunal for the assessment year 2003-2004 accepted the case of the assessee and directed the assessing officer to allow the deduction under Section 80-IA in respect of profits of the industrial undertaking styled as Berth No. 12, Haldia Dock Complex. The other grounds were also discussed by the CIT(A) and relief was granted to the assessee on the quantum claimed by them. The revenue preferred appeal before the Tribunal contending that the CIT(A) ought not to have allowed the claim of deduction as aforementioned, under Section 80-IA since assessee is not operating a port but only operating Berth No. 12 at Haldia Dock. Further the revenue contended that assessee had not furnished any evidence to sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer states that it is not clear whether exclusive license was granted to the assessee. This also, in our considered opinion a perverse finding. What is important is the substance of the letter and the agreement and not the form. It may be true that the port has issued Circular No. 10 of 2005 stating that the concerned port authorities have to issue a certificate since the definition of port stood amended and it was made as an inclusive definition to mean structures at the port for storage, loading and unloading etc. If the assessing officer had applied his mind and read the letter and the agreement in conjunction he should have arrived at a conclusion that the right granted to the assessee was an exclusive right to maintain the facility and undoubtedly the facility is meant for storage, loading and unloading and would fall within the definition of port . Fortunately for us the CIT(A) for the earlier assessment year 2003-2004 which is the first year when deduction under Section 80-IA was claimed has done a thorough factual examination and granted relief to the assessee. Thus the order passed by the CIT(A) was challenged before the Tribunal and the Tribunal by order da ..... 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