TaxTMI 
TaxTMI 
TaxTMI 
2013 (3) TMI 458
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....wed the claim u/s 80IA on the reason that the business of the assessee was conducted in the capacity of a contractor. The assessee had not entered into agreement with the authorities specified in Section 80IA(4)(i)(b), that the proviso to 80IA do not apply to the assessee and the assessee has executed only part of the O & M of the Port. However, on appeal the CIT(A) relied on the order of the Tribunal dated 25.11.2005 in assessee's own case for the assessment years 2000-01 and 2001-02 in ITA No. 1049 & 1050/Hyd/2003 and allowed the claim of the assessee. Further, he allowed relief for the income pertaining to the Dahej Port and Jam Nagar Port, bringing the facts on par with the facts pertain to Kakinada & Jam Nagar ports. Against this the Revenue is appeal before us. 4. The learned departmental representative submitted that the issue is not at all covered by the order of the Tribunal in favour of the assessee by the order cited supra. He relied on the order of the Assessing Officer. 5. On the other hand the Learned Authorised Representative for the assessee relied on the order of the Tribunal in assessee's own case cited supra and submitted that the Amendment to section 80IA by....
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....rt held that the structures at the ports are for storage, loading and unloading etc. would qualify as an infrastructural facility in terms of Board circulars. In this case, the Court has suggested that the deduction is available for activities undertaken even part of a facility. Further, the learned authorised representative for the assessee made an argument that in Tribunal in assessee's own case held the requirement of section 80IA(4)(1)(b) is waived by the proviso to section 80IA. This interpretation has also been endorsed by the Bombay High Court in the case of CIT Vs. ABG Industries Ltd. (322 ITR 323) at page 330 : "By the Finance Act 2001 the word 'or' came to be introduced after the word 'developing', to clarify in effect that the agreement between the enterprise and the authority of the central or state govt. or, as the case may be a local authority or a statutory body may provide for i) Developing or ii) Maintaining and operating or iii) Developing, maintaining and operating a new infrastructure facility." 10. With these observations, the Court has clarified that the claim of the assessee even for O & M should be entered into with specified authorities, regardless of ....
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....ts, the claim of the assessee u/s. 80IA instead of u/s. 33AC has to be allowed as held by the Tribunal on earlier occasion. 13. Further the deduction u/s. 80IA already granted to the assessee for the earlier assessment years as decided by the Tribunal by the order cited above, being so, we are not in a position to take any contrary view in this matter in view of the order of the Tribunal in the case of Micro Instruments Co. Ltd. vs. ITO (2008) 12 DTR (Chd) 501 wherein it was held that the assessee's claim for deduction u/s. 80IB has been allowed in the initial assessment year and also thereafter, claim for such deduction cannot be denied for subsequent years without any justification. The relevant observations of this Tribunal are extracted hereunder: "The assessee initially claimed deduction under s. 80IB for the impugned unit in the asst. yr. 2001-02 and the same was allowed. In this assessment year, i.e., 2003-04 the claim of the assessee was in continuation of the claims made in the earlier assessment years for the impugned assessment year falls within the number of assessment years as specified in the section in which the claim is eligible. It is also a pertinent fact positi....
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....evenue appeals in I.T.A. No. 523, 899 & 1336/Hyd/2010 are dismissed. 16. Now we will take up the assessee's appeal in I.T.A. No. 1457/Hyd/2010. The grievance of the assessee herein is with regard to addition of Rs. 33,55,204 u/s. 115VT of the Income tax Act, 1961. 17. Brief facts of the issue are that the assessee company is engaged in the business of cargo handling and O & M operations at ports, as a contractor. For the A.Y. 2005-06 the assessee-company filed its return of income on 28.10.2005 admitting total income of Rs. 2,67,12,607 after claiming deduction u/s. 80IA of the Act. Assessment u/s. 143(3) of the Act was completed on 28.12.2007 determining the taxable income of the assessee-company at Rs. 5,54,26,805 under normal provisions. Thereafter, the Assessing Officer reopened the assessment and completed the assessment u/s. 143(3) r.w.s. 147 of the Act determining the total income of the assessee at Rs. 5,87,52,009. Further the Assessing Officer applied the provisions of sub-section (5) of section 115VT read with Explanation to sub-section (1) of section 115VT and observed that in the original assessment the net profit of the Tonnage Tax Division was Rs. 7,22,74,369. This w....
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....(A) erred in appreciating the contentions of the assessee and holding that section 115JB has not been applied as the tax payable under the normal provisions is higher than the MAT. The CIT(A) ought to have noted that it was never the contention of the assessee that section 115JB has to be applied and on the contrary the only contention of the assessee was that the Book profit for the purpose of section 115VT is the same as defined u/s. 115JB and the principles of book profit u/s. 115JB had to be followed. d) The CIT(A) has completely erred in law and in the facts and circumstances of the case in observing that the 'disallowable expenses' under the normal provisions of the Act would go to increase the book profit, which is against the express provisions of the Act, precedent case laws and the accepted canons of the concept of tax on book profit. 20. On the other hand, the DR submitted that the Assessing Officer is justified in removing the unrelated expenses i.e., donation at Rs. 6,97,828 and prior period expenses of Rs. 46,71,143 and recomputed the book profit by applying the provisions of section 115VT and thereby worked out the amount to be credited to the Tonnage Tax Reserve A....