TaxTMI 
TaxTMI 
2023 (7) TMI 681
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....elected for complete scrutiny under CASS. Accordingly, notice U/s. 143(2) of the Act was issued on 13/08/2018. Thereafter, due to change in incumbency, as per the provisions of section 129 of the Act, fresh opportunity of being heard was accorded to the assessee vide letter dated 06/08/2019. Subsequently, notice U/s. 142(1) of the Act along with the detailed questionnaire was issued to the assessee on 30/08/2019 calling for detailed information. In response, the assessee furnished its submissions from time to time. On perusal of the submissions of the assessee, the Ld. AO noted that the assessee's claim of deduction U/s. 80IA(4) made in its ITR does not fulfill the conditions enumerated in Circular No. 793, 23/06/2000 as well as the Circular No. 10/2005, dated 16/12/2005. The Ld. AO vide para 3.5 of the assessment order further observed that the case laws relied on by the assessee are distinguishable on salient features and facts of the case. Further, the Ld. AR also noted that the reliance placed by the assessee on the decision of the Hon'ble ITAT, Visakhapatnam Bench in ITA No. 149/Vizg/2019, AY 2014-15 wherein the Tribunal allowed the assessee's appeal regarding deduction U/s. 8....
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....definition of infrastructure facility as defined U/s. 80IA(4) includes 'a port, airport, inland water way, inland port or navigational channel in the sea' but does not include Container Freight (CFS). 3. On the facts and in the circumstances of the case, the Ld. CIT(A) ought to have considered that even as per the letter issued by the Visakhapatnam Port Trust, the Structure (CFS) does not form part of the Port and therefore, the Hon'ble Supreme Court's judgment in the case of Container Corporation of India in 302 CTR 221 (SC) is not applicable to the facts of the case. 4. On the facts and in the circumstances of the case, the Ld. CIT (A) ought to have considered that the Board, vide circular dated 06.01.2011, clarified that an ICD or a CFS is usually located at the Port and therefore, is not a part of the Port for the purpose of computation of deduction U/s. 80IA(4)(i) of the Act. 5. On the facts and in the circumstances of the case, the Ld. CIT(A) ought to have considered that the fact that CFS of the assessee has not been built under BOT and BOLT scheme and there is no agreement that the same would be transferred to VPT on expiry of time stipulated in the agreement and ther....
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.... not? This issue was came up before the Tribunal in the assessee's own case for a the AY 2011-12 in ITA No. 15/Vizag/2015, dated 29/05/2015 wherein the Tribunal discussed the issue at length and came to a conclusion that the assessee is eligible for deduction U/s. 80IA(4) of the Act. For the sake of immediate reference and convenience, relevant portion from the Tribunal's order is extracted herein below: "8. In circular no. 18/2009 dated 08/06/2009 issued by the Central Board of Excise and Customs in F.No. 434/17/2009-CUS.IV the difference between Inland Container Depots (ICD) and Container Freight Stations(CFS) has been spelt out in the following manner: "(a) DEFINITION OF ICD: An Inland Container Depot may be defined as: A common user facility with public authority status (emphasis supplied) equipped with fixed installations and offering services for handling and temporary storage of import/export laden and empty containers carried under customs control and with Customs and other agencies competent to clear goods for home use, warehousing, temporary admissions, reexport, temporary storage for onward transit and outright export. Transshipment of cargo can also take place f....
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.... of Customs. It is an extension of a Customs station set up with the main objective of decongesting the ports. In a CFS only a part of the Customs processes mainly the examination of goods is normally carried out by Customs besides stuffing/destuffing of containers and aggregation/segregation of cargo. Thus, Custom's functions relating to processing of manifest, import/export declarations and assessment of Bill of Entry/Shipping Bill are performed in the Custom House/Custom Office that exercises jurisdiction over the parent port/airportlICD/LCS to which the said CFS is attached. In the case of Customs Stations having facility of automated processing of documents, terminals are provided at such CFSs for recording the result of examination, etc. In some CFSs, extension Service Centers are available for filing documents, amendments etc. However, the assessment of the documents etc. is carried out centrally. * An ICD may also have a number of CFSs attached to it within the jurisdiction of the Commissioner of Customs just as in the case of a port and its CFSs (as on date there are 28 CFSs linked to Chennai port) [Refer Circular No. 18/2009-Cus. , dated 8- 6-2009]. * A standalone....
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.... letter dated 10/02/2005, written to the Managing Director of the assessee company regarding setting up of a CFS at Visakhapatnam apropos the assessee's case. 10. In the case of A L Logistics P. Ltd. (supra) the Chennai Bench of the Tribunal at para 7 held as follows: "7. Now, we proceed to the next issue, whether in the absence of specific agreement with the Central/State Government, local authority or Statutory Body, the assessee is entitled to claim the benefit of section 80IA (4 )(i)? The assessee had made an application for setting up of CFS at Haldia. In response to the application of assessee, the Department of Commerce, Infrastructure Division, Ministry of Commerce and Industry approved the proposal of the assessee for setting up of CFS at Haldia for handling import/export of cargo subject to execution of certain documents and compliance of other terms and conditions as stated in the letter. The Id. Counsel for the assessee has placed on record letter dt.27-05-2003 from the Ministry of Commerce and Industry permitting the assessee to set up CFS at Raldia. The contents of the letter are reproduced herein below: "No. 16/6/2003-lnfra-I Government of India Ministry of....
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....assessee on the compliance of the terms and conditions as mentioned in the letter, was notified as CFS Complex for the purpose of receiving, storing, import containers, receiving/consolidating export cargo etc. vide Public Notice OUO-1l-2013. The Public Notices were issued by the office of the Commissioner of Customs (Port) Kolkata. 8. Thus, it is evident that the proposal of the assessee was accepted by the Government on certain conditions which were duly complied with by the assessee. There may not be any specific agreement, but the sequences of events clearly show that the assessee is providing CFS facility in accordance with the conditions laid down by the Government. In such circumstances there is no need to insist for the specific execution of agreements. The coordinate bench of the Tribunal in the case of United Liner Agencies of India (P.) Ltd (supra), has taken a similar view, Where no specific agreement with the State Government was entered into but from the approvals granted to the assessee it was inferred that assessee should be deemed to have entered into an agreement with the State Government. Thus, we are of the considered view that the assessee has complied with a....