TaxTMI 
TaxTMI 
2015 (6) TMI 593
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.... ld. Counsel submitted that the ld. CIT(A) has granted relief to the assessee on the basis of the said Tribunal's order in assessee's own case. Hence the ld. Counsel of the assesee submitted that there is no need to interfere with the order of the ld. CIT(A). The ld. Departmental Representative, on the other hand, relied upon the order of AO. However, he accepted that the issue has been decided in assessee's own case in favour of assessee on the same issue. We find that the Tribunal in the order aforesaid has decided the issue in favour of the assesee by holding as under :- "15. After hearing both the sides we find that the revenue has not brought anything on the records that the hoardings are having longer life then claimed by the assessee and giving benefit of enduring nature. The assessee's claim is that these hoardings are having life of one to two months and less than a year. These hoardings are put in use for less than 180 days. The AO has not brought any evidence regarding the durability of the hoardings. The AO's observations appears to be a guess work in respect of quality of structure of the boards. The assessee has asked for 100% depreciation on the ....
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....de by the Hon'ble High Court, adhering of the doctrine of stare decisis where uphold the order of the ld. CIT(A). The revenue's appeal on this account stands dismissed. 4. Another issue raised by the revenue in this appeal is that the ld. CIT(A) was not justified in allowing the assessee deduction u/s 80IA of the Act for construction of Foot Over Bridges as well as Bus Shelters. 5. In this case AO has disallowed assessee's claim of deduction u/s 80IA of the Act on Bus Shelters and Foot Over Bridges. AO has made disallowances by observing as under :- "The assessee has claimed "Bus Shelter" as an integral part of road system. However, "Bus Shelters" is an area on the side of the road where passengers wait for the arrival of their Bus. The same is totally independent to the road. In other words the "Bus Shelters" are constructed only on the roads where the Buses run and without the Bus Shelters the Roads have an independent identity and can function without them. The existence and functioning of a "Road" does not depend on the "Bus Shelter" however, the vice versa is not true i.e. the "Bus Shelters" cannot run without the "road". Though "Bus Shelters" is an item of publ....
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....issions with respect to meaning of phrase 'derived from'. He also referred to several case laws including the decision of the Hon'ble Apex Court in the case of Liberty India Ltd. vs CIT 183 Taxman 349 (SC). Referring to the ratio emanating from the aforesaid Apex Court's decision the ld. DR submitted that the profit of the assessee from the advertising 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 ld. DR further referred to the Hon'ble Calcutta High Court's decision in the case of Mukherjee Estates (Pvt) vs CIT 244 ITR 1 (cal) 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 ld. DR further submitted that the above proves that 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 over bridge and bus shelter. The ld. DR further submitted that Hon'ble Karnata....
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....01.2015 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 ITAT in quashing a revision order passed by ld. CIT u/s 263 of the Act whereby allowance of section 80IA of the Act on bus shelters and foot over bridges was disallowed. 7.2. The ld. Counsel of the assessee further submitted that section 80IA of the Act provides for deduction on account of profits and gains derived by an industrial undertaking from any business referred to therein. The ld. Counsel further submitted that the Hon'ble Apex Court in the case of Liberty India Ltd. (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 u/s 80IB of the IT 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....
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.... CIT u/s 263 of the Act wherein bus shelters and foot over bridges were not to be considered as part of the infrastructure facility for claiming deduction u/s 80IA of the Act. 8.1. As regards the issue raised by the ld. DR that the income which is the subject matter of claim of deduction u/s 80IA of the Act was not derived from the business of advertising of bus shelters and foot over bridges, we find that this is altogether a new issue which is not even the case of AO. The AO has made the disallowance only on the ground that construction of bus shelter and foot over bridge cannot be treated as development of infrastructure facility. Hence they do not qualify for deduction u/s 80IA of the Act. This aspect of AO's disallowance has been duly over ruled by ld. CIT(A) as well as ITAT. The same also draws support from the Hon'ble Calcutta High Court decision in the case of DCIT vs Selvel Advertising P.Ltd. In these cases it has been held that development of foot over bridges and Bus shelters do qualify for deduction u/s 80IA of the Act on account of infrastructure development. When the AO has not raised any issue as to whether the income of the assessee can be considered to be ....