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TMI Blog2014 (11) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in operating the Container Freight Station (CFS) and filed its return of income on 20.09.2010 declaring total income of Rs.4,80,85,257/- after claiming deduction u/s. 80IA(4) to the extent of Rs. 33,88,19,293/-. The assessee company also filed the Audit Report in form no. 10CCB as per rule 18BBB stating that the CFS operated by the company is a "port" which is one of the infrastructure facility for the purpose of section 80IA of Income-tax Act, 1961 and therefore the company is eligible for tax holiday under the Income Tax Act. 3.1 The assessee company has set up a Container Freight Station in Jawaharlal Nehru Port Trust area over approx. 30 acres of land and is offering the services relating to the handling and temporary storage of loaded containers for import/export destinations including the storage of empty containers. The operations of the CFS of the assessee company include broadly the clearance of goods for home use, warehousing, temporary admissions, re-export, temporary storage for onward transit/outright export, transshipments etc. The CFS of the assessee company started its operations in January 2006. 3.2 The AO did not accept the above claim of the asseseee co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.33,88,19,293/- claimed deduction u/s.80IA(4) should not be disallowed. Rejecting the various explanations given by the assessee and following the order of his predecessor in assessee's own case for A.Y. 2008-09, the AO disallowed the claim of deduction u/s.80IA(4). 4. In appeal the Ld.CIT(A) following the decision of the Mumbai Bench of the Tribunal in assessee's own case, i.e., Continental Warehousing Corporation (Nhava Seva) Ltd., Vs. ACIT vide ITA No.7055/Mum/2011 order dated 31-08-2012 for A.Y. 2008-09 allowed the claim of deduction made by the assessee. 5. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us. 6. After hearing both the sides, we find an identical issue had come up before the Tribunal in assessee's own case in the immediately preceding assessment year. We find the Tribunal in assessee's own case vide ITA No.7055/Mum/2011 order dated 31-08- 2012 for A.Y. 2008-09 has decided the issue in favour of the assessee by observing as under : "6. We have heard both the parties and their contentions have carefully been considered. We have also carefully gone through the aforementioned decision of the Special Bench in the case of All Cargo Glob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the question before the Court is-whether, the income from the Inland container depots (ICDs) qualify for deduction under s. 80-IA(4)(i) of the Act r/w Expln. (d) thereto. The Court referred to the facts of the case that the assesses operated 45 ICDs. All the ICDs except 2 were notified by the CBDT for the purpose of s. 80-IA(12)(ca) on 1st Sept, 1998. However the power to notify 'Infrastructure facility'' for the purpose of this section was taken away from the CBDT w.e.f. 1st April, 2002. The Court noted that wherever the word "port" is used, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by him. as held in the case of Novopan India Ltd. vs. CCB (1994) 3 SCC 606. In respect of this decision, he laid stress on the finding that liberal and strict constructions of exempt provision are to be Invoked at different stages of its interpretation. When the question is whether a subject falls in the notification or in the exemption clause then it being In the nature of exemption is to be considered strictly and against the subject but once the ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the case at hand it is clear that the assets of the CFS are not to be handed over to the port trust at any point of time as it is not built on BOT and BOLT Scheme. The CFS is also not located at the port. As against the aforesaid, the learned standing counsel has submitted that clarifications issued by other authorities including CBEC under the relevant Acts do not lay guidelines under the IT Act and that the matter has to be decided under the IT Act Independently. For doing so, initially a strict Interpretation has to be placed on the words "inland port" to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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