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TMI Blog2016 (10) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceedings the AO observed that the assessee company had set up a Container Freight Station (CFSs) in the Jawaharlal Nehru Port Trust over approx. 30 acres of land. Through CFSs, the assessee company provides a common user facility equipped with fixed installations. It offers services for handling and temporary storage of import/export laden and empty containers. All the activities related to the clearance of goods for home use, warehousing, temporary admissions, re-export, temporary storage for onward transit and outright export, transshipment, take place from this station. It started its operations on 19th January, 2006. It has three warehouses admeasuring 2,60,000 sq.ft. and a container yard." 4. According to the AO the only issue for consideration is whether on the facts and in the facts of the case and in law the assessee is eligible for claiming deduction u/s.80IA(4) of the Act. The AO analysed the provisions of section 80IA(4), CBDT Circular No.10/2005, dated 16-12-2005 and observed that for claiming deduction u/s.80IA(4) all of the following conditions are to be fulfilled: "(1) The enterprise who claims the deduction, should carry on the business of (i) developing or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board seeking clarification whether the Container "Freight Stations (CFSs). and Inland Container Depots (ICDs) are eligible for deduction under section 80IA(4)(i) and whether that are to be considered as infrastructure facility for the purpose of the said sub-section, especially in view of the aforesaid circular No. 1012005, which states that structures for loading and unloading at the port area are a part of the port. The Board has considered the above . issue and it is has been decided that aforesaid circular is applicable to the structures for loading, unloading and storage at the Port. An ICD or a CFS is usually not located at the port and therefore it is not a part of the Port for the purpose of Section 80IA(4)(i) and not covered by the Circular No. 1012005 dated 16.12.2005 and circular No. 793 dated. 23.06.2000 on the subject. In this regard, it is further added that if such a facility is located at the port then, it can be considered to be a infrastructure facility being a part of the port. References have also been received as to whether Inland Container Depots (ICDs) and Container Freight Station (CFS) can be termed as Inland Ports and thereby classified as infrastructure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee at the outset submitted that the Tribunal in assessee's own case for A.Yrs. 2008-09 and 2009-10 after considering various objections raised by the AO has allowed the claim of deduction u/s.80IA(4) of the I.T. Act. Merely because the Revenue has not accepted the order of the Tribunal and has filed an appeal before the Hon'ble High Court the same cannot be a ground to reverse the decision of the Tribunal in absence of any contrary order. 11. The Ld. Departmental Representative on the other hand fairly conceded that the issue stands decided in faovur of the assessee by the decision of the Tribunal in assessee's own case for A.Yrs. 2008-09 and 2009-10. However, the Revenue has not accepted the decision of the Tribunal and an appeal has been filed before the Hon'ble High Court. Therefore, to keep the matter alive the Revenue has filed this appeal. 12. After hearing both the sides, we find an identical issue has come up before the Tribunal in assessee's own case for A.Y. 2009-10. The Tribunal vide ITA No.906/PN/2013 order dated 18-11-2014, following the decision of the Tribunal in assessee's own case for A.Y. 2008-09, has dismissed the grounds raised by the Revenue by ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Circular No. 793, dt 23rd June, 2000 [(2000) 161 CTR (St) 211. r/w Circular No. 133/1995-Cus., dt. 22nd Dec.. 1995 of the Board of Excise and Customs. The CBDT had also issued Circular No. 10 of 2005, dt. 16th Dec., 2005 1(2005)199 CTR (St) 971 clarifying that the structures at the port for storage, loading and unloading constitute 'port" for the purpose of s. 10(23G) and s. 80-IA. 62. Before us, learned counsel for the Container Corporation of India submitted at the outset that the decision of Hon'ble Delhi High Court dt. 11th May. 2012 has now been received, a copy of which is placed in paper book on page Nos. 14 to 33. The decision was rendered In respect of three appeals filed by the assessee bearing IT Appeal Nos. 1411 of 2009, 967 of 2011 and 968 of 2011. The assessment years involved are 2003-04 to 2005-06. After going through the history of legislation, it Is mentioned In para No. 8 that asst. yr. 1999-2000 was first year in which Inland ports were designated as 'Infrastructure facility" under s. 80-IA. The object was to strengthen Infrastructure In general and the transport infrastructure In particular. Thereafter it is mentioned in para No. 9 that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso having regard to the fact that customs-clearance also takes place in the ICD, the assessee's claim that the ICDs are inland ports under Expln. (d) of s. 80-IA(4) requires to be upheld." 63. The submission of the learned counsel In the case of All Cargo Global Logistics Ltd. is that the Hon'ble Delhi High Court has held that ICDs are landlocked and situated far off from the sea port as such. The ICDs of the Container Corporation of India are located at places such as Jamshedpur, Jodhpur, Jaipur, etc. These have been held to be inland ports for the purpose of deduction under s. 80- IA(4). The case of the assesses is better placed than the case of Container Corporation of India Ltd. (supra) in as much as it Is situated 5 fans, away from the port and it is apart of the port for carrying out activities mentioned earlier. Customs-clearance takes place from assessee's CFS. Therefore, it is argued that the assesses is entitled to deduction under s. 80-TA. 64. In reply, the learned standing counsel submitted that whenever the assessee claims an Income to be exempt from tax or claims a deduction, the preconditions for exemption or deduction have to be strictly satisfied b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it may be mentioned that one of the arguments advanced by the learned counsel for the assessee Is that the case of Container Corporation of India (supra) is not based on any of the circulars issued by the port authorities, however, the CFS of the assessee has been granted such certificate. The certificate mentions that the CFS carries on port related activities, and it may be considered as an extendable activity of the port related activities. It is clarified that the CFS has not been built on BOT or BOLT Scheme sand that It is situated on land which does not belong to the port The letters written by port trust to the assessee also state that the matter has been referred to the IT Department. The Department has clarified that an ICD/CFS does not constitute an inland port. In the case of GIT vs. ABG Heavy Industries Ltd. & Ors. (2010) 231 CTR (Bom) 127: (2010) 37 DTR (Bom) 233: (2010) 189 Taxman 54 (Bom), the Hon'ble Court has held that the assessee is entitled to deduction under s. 80-IA. However there is a very salient difference in facts that structures were located at port and such structures had to be handed over to the port trust on expiry of the period of agreement In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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