AI Drafter 
TaxTMI 
TaxTMI 
2017 (9) TMI 1145
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....ture is fabricated. On such iron structure wooden/plastic/flex/glow sign boards are erected which display advertisement. According to the AO the iron hoarding has life time for a considerable period and it is only the wooden/plastic/glow sign board that gets damaged by rain or sun shine. According to the AO the major part of the hoarding is a permanent structure and not a temporary structure. The AO accordingly disallowed depreciation @100% on hoardings as claimed by the assessee on the ground that the hoardings were purely temporary structure such as wooden structures and allowed depreciation at 15% treating them as plant and machinery. 4. On appeal by the assessee CIT(A) directed the AO to allow 100% depreciation on hoardings and in doing so the CIT(A) followed the decision of ITAT in assessee's own case on an identical issue for A.Y.2005-06 in ITA No.820/Kol/2008 order dated 11.12.2009 wherein it was held that the assessee is entitled to 100% depreciation on hoardings. 5. Aggrieved by the order of CIT(A) the revenue has raised ground no.1 before the Tribunal. 6. At the time of hearing it was agreed by the parties before us that identical issue had been decided in assess....
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....Subject to the above direction, ground no. 2 of the department's appeal for A. Y 2005-06 is allowed. " In view of the above. we are of the view that the assessee is entitled for depreciation on hoardings. which are temporary structures, and CIT(A) has rightly allowed the same. This common issue of both the appeals of revenue is dismissed." 7. Respectfully following the decision of the Tribunal on an identical issue and on the same set of facts we dismiss ground no.1 raised by the revenue. 8. Ground No.2 raised by the revenue reads as follows :- "2. "That on the facts and in the circumstances of the case and as per law Ld. CIT(A) erred by allowing the deduction claimed by the assessee u/ s 80IA amounting Rs. 1,33,40,998/- even though the assessee is not fulfilling the condition of 80lA." 9. This ground relates to the claim of assessee for deduction u/s 80IA(4) of the Income Tax Act, 1961 (Act). Under Sec.80IA(4) of the Act, a deduction of income derived from the business of developing and infrastructural facility while computing total income of an Assessee is allowed. The assessee derived income from display of advertisement on road and foot bridges. I....
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....lieu of obtaining Advertisement/Display rights did not amount to development: operation & maintenance of Road or Bridges as envisaged in S. 801A(4). Traffic Signal System is a facility which assists in regulating vehicular & pedestrian traffic on the road but by itself installation of such system does not amount to development of Roads, Applying the functional test one can say that installation. operation & maintenance of traffic signal system does not constitute business of development of Roads, Infrastructure facility such as Road can function sans Electric traffic signaling system also. It is not necessary for the developer of the road to install signaling system because roads can be used as Infrastructure facility even without sophisticated electronic system. In the assessee's case, it was not all involved in construction or development of roads but it installed traffic signaling system on the preexisting road network & therefore assessee 's business cannot be equated with business development. operation & maintenance of roads as envisaged in S. 801A(4). " 4. Aggrieved. assessee preferred appeal before CIT(A), who allowed the claim of assessee on the basis of asses....
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.... Account attached to Form No. 10CCB (Audit Report u/s. 801A(7) ] as filed with the return. " The assessee vide its letter dated 27. 11.2006 further submitted the details of nature of infrastructural facilities maintained i.e. no. location and size of these facilities in response to item No. (xxvi-a) of AO's letter dated 13. 12.2006 and details of publicity charges front infrastructural facilities showing no. location, bill date, period and amount of publicity charges in response to item no. (xxvi-b) of the same letter of the A.O. The details are available 01 pages 21 to 27 of the paper book. The assessee company vide its letter dated 20.12.2006 also submitted the details regarding the apportionment of all the expenses to the infrastructural facilities which are available at pages 28 and 29 of the paper book. The apportionment of all the expenses have been shown in the P&L Account which is evident from item no.(xxi) of Form No. 10CCB of the Audit report u/s 80IA(7) of the Act. This report is also part of the paper book from pages 6 10 15. It is clear from this that there was application of mind on the part of AO before he accepted the claim of the assessee Company u/s. ....
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....ubstantial questions of law :- i) "Whether, on the facts and in the circumstances of the case, the Incometax Appellate Tribunal is correct in quashing the revision order under section 263 of the GA NO.894 of 2010 Income-Tax Act, 1961, passed by the Commissioner of Income-tax, on the ground that the Assessing Officer had taken one of the possible views wile, in fact. the question is one of law and not fact and incorrect appreciation of law by the Assessing Officer is amenable to correction through the instrumentality of revision order under section 263 of the Act?" ii) "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is correct in holding that automatic traffic signal and pedestrian foot bridge would constitute infrastructure facility defined ill clause (a) of Explanation below sub-section (4) of section 80- 1A of the Income-tax Act, 1961 ?" Since. we are inclined to take the view that the Tribunal was right in holding that the automatic traffic signal and pedestrian foot bridge would constitute infrastructure facility as contemplated in clause (a) of the explanation to sub section (4) of Section 80-IA of the I....
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....e facility. Sub-section (5) says about initial assessment year and thereafter in subsequent assessment years for claim of deduction under this section by putting a ceiling of ten years. The period will be counted from the initial assessment year and the enterprise or the undertaking will be allowed to choose the initial year from which it wants to avail deduction for further years. The concession has to be availed within a span of 12 years beginning with the year of operation. This means that an enterprise or undertaking which chooses the fourth year of operation as the initial yea/will get deduction starting from that year. The revenue can see the prerequisite condition for allowance of deduction to an enterprise or an undertaking in the very first year the initial year of claim of deduction. In the present ease before us, the assessee claimed deduction u/s. 80lA of the act in the assessment year 2004-05 i.e. that was the initial assessment year and in that year the matter regarding the claim of deduction has become final for the reason that Hon'ble Calcutta High Court has confirmed the allowance of deduction and revenue has not carried the matter before Hon'ble Supreme Co....
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....opriate rate, the AO invoked the provision of section 40(a)(ia) of the Act and disallowed the payment made to Advertisement Agencies claimed as deduction by the Assessee in computing income from business on the ground that such payment was made without deduction of tax at source at the appropriate rate and added a sum of Rs. 11,41,40,674/- to the total income of the Assessee which is a payment made to the advertising agencies. 16. On appeal by the assessee the CIT(A) deleted the addition made by observing as follows :- "It is also brought to my notice that similar disallowance of Site Hire Charges paid to traders (Advertising Agencies) was made by the Addl. Commissioner of Income Tax, range-12, Kolkata for the A.Y.2009-10 & by the Deputy Commissioner of Income tax Cir.12 Kolkata for the A.Y.2010-11 on identical grounds and the same disallowances were fully deleted by the ld. CIT(A)XII-Kolkata vide his orders for the AY 2009-10 in Appeal No.459/CIT(A)XII/12/2011-12) dated 19-04-2012 and for A.Y. 2010-11 in Appeal No.209/CIT(A)-XII/Cir-12/2012-13) dated 23-04- 2013. I also find nothing new in facts and circumstances on this issue in the present appeal case before me for t....
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.... 10 above and following the same proposition. we confirm the order of CIT(A) allowing the expenses. 32. The Ld. counsel for the assessee also made argument that on short deduction of TDS. no disallowance can be made by invoking the provisions of section 40(a)(ia) of the Act in view of the decision of Hon'ble Calcutta High Court in the case of CIT Vs. S. K. Tekriwal (2014) 361 ITR 432 (Cal). wherein it is held that the no disallowance can be made due to short deduction of TDS. 33. In view of the above two propositions. we confirm the order of CIT(A) allowing the expenses. This common issue of revenue' s appeals is dismissed." 18. In view of the aforesaid decision of the Hon'ble ITAT in assessee's own case we are of the view that there is no merit in ground no.3 raised by the revenue. 19. Ground No.4 raised by the revenue reads as follows :- "4. "That is the facts and in law of the case the Ld. CIT(A) erred in allowing interest on delay payment of TDS as allowable expenditure u/ s. 37 of IT Act." 20. The AO noticed that the assessee had paid a sum of Rs. 7,82,561/- as interest on delayed payment of tax that was deducted at source. The afore....