TaxTMI 
TaxTMI 
2022 (1) TMI 1053
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....he revenue under Section 260A of the Income Tax Act, 1961 against the common order dated 4th October, 2016 passed by the Income Tax Appellate Tribunal "A" Bench, Kolkata (Tribunal) in ITA/1513/Kol./2008 for the assessment year 2004-2005 and ITA/1914/Kol/2008 and C.O. No. 133/Kol/2008 for the assessment year 2005-2006. The revenue has raised the following substantial questions of law for consideration:- 1. Whether on the facts and the circumstances of the case, the Learned Income Tax Appellate Tribunal, "A" Bench, Kolkata, erred in law in allowing deduction u/s 80-IA of the Income Tax Act, 1961 to the assessee, in respect of operating a multipurpose berth and not developing and/or operating and maintaining a port as required under the act ....
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....e assessing officer by two separate orders dated 29th December, 2006 and 31st December, 2007 for the assessment years 2003-2004 and 2004-2005 respectively rejected the claim. Since the assessment order is verbatim the same and the assessing officer is also the same person suffice to refer to the assessment order dated 29th December, 2006 for the assessment year 2004-2005. The assessing officer noted that the assessee company had claimed deduction under Section 80-IA for operating and maintaining multi purpose Berth No. 12 at Haldia Dock Complex. They submitted a letter dated 20th November, 2006 issued by the port authorities stating that Berth No. 12 at Haldia Dock Complex has been allotted to the assessee on leave and license basis for thi....
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.... and replacing the project facilities at Berth No. 12. Though the assessing officer noted the said fact he opined that no details were furnished in respect of the arrangement for construction of Berth No. 12 either on BOT or BOLT basis and transfer of Berth No. 12 to the port authorities. With such reasoning the assessing officer held that assessee company is not eligible for claiming deduction under Section 80-IA of the Act. The assessee filed appeal before the Commissioner of Income Tax (Appeals) -VIII Kolkata (CITA). Apart from factual details placed before the assessing officer the assessee contended that for the assessment year 2003-2004 which was the first year of the claim under Section 80-IA the same was not allowed by the assessing....
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....ar namely 2003-2004 and the said order passed by the Tribunal had been given effect to by the assessing officer, following the decision for the assessment year 2003- 2004 the appeals filed by the revenue were dismissed. Challenging those orders revenue is before us by way of these appeals. The learned Senior Standing Counsel appearing for the revenue, have in extenso taken us through the factual position and reiterated the submissions made by the revenue before the Tribunal stating that the assessee is not operating and maintaining a port but they are engaged in activities of Berth No. 12 alone, and therefore, assessing officer was right in not granting the relief. Furthermore, it is contended that no documents were produced by the assesse....
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....d to the assessee. This also, in our considered opinion a perverse finding. What is important is the substance of the letter and the agreement and not the form. It may be true that the port has issued Circular No. 10 of 2005 stating that the concerned port authorities have to issue a certificate since the definition of port stood amended and it was made as an inclusive definition to mean structures at the port for storage, loading and unloading etc. If the assessing officer had applied his mind and read the letter and the agreement in conjunction he should have arrived at a conclusion that the right granted to the assessee was an exclusive right to maintain the facility and undoubtedly the facility is meant for storage, loading and unloadin....