ITAT held that Upon careful consideration, we find that the delay in filing the appeal is solely attributable to the wrong advice of the consultant. In our considered opinion, the assessee should not suffer on account of the wrong advice of the consultant, hence, in the substantial interest of justice we condone the delay.
FULL TEXT OF THE ITAT JUDGMENT
This appeal by the assessee is directed against the order of the learned Commissioner of Income Tax-1, Mumbai (‘ld.CIT for short) dated 23.03.2017 passed u/s. 263 of the Income Tax Act, 1961 and pertains to the assessment year (A.Y.) 20 1 2-1 3.
2. The grounds of appeal read as under:
1. Order u/s. 263 is bad-in-law – Defective jurisdiction – Order may be quashed :
(i) The Id. Principal Commissioner of Income Tax (Pr.CIT) erred in assuming the jurisdiction u/s.263 by failing and not appreciating that the original Order u/s. 143(3) was passed by the Assessing Officer with due application of mind which was neither erroneous nor prejudicial to the interest of the Revenue; hence, the Order u/s.263 is bad-in-law and may be
(ii) Without prejudice to above, as jurisdiction on the basis of change of opinion or on two views is not justified, the Id. Principal CIT failed to appreciate that when during .the original scrutiny assessment proceedings, entire particulars pertaining to its justified claim u/s.80IA had been furnished by the Appellant and the Id. Assessing Officer had taken a view which is settled after the application of mind; the jurisdiction u/s, 263 subsequently cannot be acquired to take another view; the impugned Order u/s. 263 may, therefore, be quashed for having no force under tax laws,
(iii) Without prejudice to above, on a mere change of opinion, acquiring jurisdiction u/s. 263 becomes defective.
2. Disallowance of deduction u/s. 80IA- Rs.3,600,15,452/-
The Id. Pr. CIT erred in giving direction to Assessing Officer to make disallowance u/s.80IA of Rs. 3,60,15,452/- without appreciating that the Appellant had complied to thee eligible norms for its claim which is also settled by judicial rulings; therefore, merely because the Revenue does not accept the decisions on the issue and taken up the same before the Hon’ble Supreme Court, the disallowance is uncalled for and the same may be deleted.
3. Levy of Penal Interests
The Appellant, on merits, denies its liability to penal interest.
3. At the outset it is noted that there is a delay of 214 days in filing this appeal. For the reasonable cause it has been submitted that assessee was well versed of taxation laws That it was advised that no appeal could be filed against the order u/s.263 and that subsequently they were advised by another adviser the appeal should be filed against order u/s.263. Furthermore an affidavit has been filed by the concerned chartered accountant who is auditor of the company. In the said affidavit the said consultant has duly accepted that wrong advice was given by him originally not to contest the order u/s.263. In the background of the above, the assessee has sought condonation of delay in filing the appeal and the assessee has also placed reliance upon several case laws in this regard.
4. Per contra, the ld. Departmental Representative (ld. DR for short) strongly opposed the condonation of delay and placed reliance upon several case laws.
5. Upon careful consideration we find that the delay in filing the appeal is solely attributable to the wrong advice of the consultant. In our considered opinion, the assessee should not suffer on account of the wrong advice of the consultant, hence, in the substantial interest of justice we condone the delay
6. In this case, the ld. CIT noted that the Assessing Officer (A.O. for short) had committed an error in allowing the deduction u/s.80IA of Rs.3,60,l5,452/- towards receipts from operation of Container Freight Station (CFS) without verifying the allowability of such deduction. That this error was found to be prejudicial to the interest of the revenue in the facts and circumstances of the case and in law. That it was found that not only the A.O. in a casual manner accepted the claim without due verification but even ignored the fact that the department has issued clarification dt.6.1.201 1 to say that ICDs and CFSs are not ports for the purpose of Section 80IA and the decisions relied by assessee were not accepted and appeals were pending. That further the certificate issued by Jawaharlal Port Trust was withdrawn and there is no agreement with Central Government or State Government as required u/s.80IA(4)(i)(b). Accordingly, the show cause notice to the assessee was issued.
7. From the assessee’s response, the ld.CIT(A) noted that the assessee has only relied upon certain judicial precedence considered favourable to them. Thereafter, the ld. CIT referred to the jurisdiction of the ld. CIT u/s. 263 of the Act and several case laws. Thereafter, he directed the A.O. to do the assessment afresh and consider the issue of allowability of deduction u/s. 80IA as per the conditions laid down in the Income Tax Act, 1961. The ld. CIT held as under:
6. When the facts of this case and the submission made are tested against discussion made above, it is apparent tha the assessment made by the a.O. on all the accounts raised in the Show Cause Notice and replied by the assessee is erroneous and prejudicial to the interest of revenue. the arguments made by the assessee company on the issue of allowability of deduction u/s. 80IA of Rs.3,60,1 5,452/- are not acceptable, as the issue of allowability of deduction u/s.80IA on Receipts from operation of Container Freight Station, is not settled in favour of assessee, by the Apex Court. For claiming u/s 80IA, the assessee company vide letter dtd. 10.2.2015 filed during scrutiny assessment proceedings, has relied upon the decision dtd.6.7.2012 of the Special Bench of the ITAT, Mumbai in the case of All Cargo Global Logistics Ltd. vs. DCIT, CC-44, Mumbai (137 ITD 287).The Assessing Officer has failed to verify that the above decision of ITAT relied upon by the assessee to claim deduction U/S.80IA, has not been accepted by the Department and at the time of passing order, Department’s appeal U/S.260A was pending before High Court. The A.O. has failed to follow the clarification dtd.6. 1.2011 issued by the CBDT, wherein Circulars dtd. 23rd June, 2000 and 1 6th December, 2005 were considered and it had been clarified that ICDs and CFSs are not ports on any inland waterway, river or canal and therefore they cannot be classified as “inland ports” for the purpose of Section 80-IA(4) of the I.T. Act. The certificate issued by Jawaharlal Nehru Port Trust was withdrawn by the Port Trust. Furthermore, the Inland Waterways Authority of India Act 1985 provides definition of the term ‘infrastructure facilities’. In this definition, inland port is included1as an item, thus, this term is distinct and separate from other terms. Therefore, ICDs and CRSs cannot be interpreted to be included in the term ‘inland port’. Also, the assessee company has not entered into any agreement with Central/State government or Local Authority/Statutory body which is mandatory as per the provisions of the Section 80IA(4)(i)(b) of the I. T. Act. It is pertinent to note the judgment of the Bombay HC in the case of All Cargo Global Logistics Ltd was not accepted by the Department and a SLP against the imp8ugned order has been filed in the case of All Cargo Global Logistics Ltd. Furthermore, on the same issue, SLP has been filed by the Department against the Delhi High Court’s judgment in. the case of Container Corporation of India (364 ITR 140) (Del).
7. In view of the above facts and circumstances and after considering the submissions made by the assessee company, I am convinced that A.O. has committed the errors described above which are also prejudicial to the interest, of revenue. Considering the same, in exercise of powers conferred u/s. 263 of the I. T. Act, I set aside the order made u/s. 143(3) of the I. T.: Act on the limited issues discussed above. The A.O. is directed to reframe the assessment afresh after giving due opportunity to assessee and decide issue of; allowability of deduction u/s.80IA as per the conditions laid down under the! Act, in the light of above discussions.
5. Against the above order, the assessee is in appeal before us.
6. We have heard both the counsel and perused the records. We find that the issue involved is squarely covered in assessee’s favour by the decision of the Special Bench of the Tribunal as well as the Hon’ble jurisdictional High Court decision. Hence, in our considered opinion, there was no occasion for the ld. CIT to exercise jurisdiction u/s. 263 of the Act. Furthermore, we find that now the issue on merit is squarely covered in favour of the assessee by the decision of Hon’ble Apex Court in the case of CIT vs. Container Corporation of India Ltd.  93 com31 (SC) which reads as under :
10. As the whole point in dispute revolves around the ICDs, it would be appropriate to have an understanding about the same. The ICDs function for the benefit of exporters and importers located in industrial centers which are situated at distance from sea ports. The purpose of introducing them was to promote the export and import in the country as these depots acts as a facilitator and reduce inconvenience to the person who wishes to export or import but place of his business is situated in a land locked area i.e., away from the sea. These depots reduce the inconvenience in import and export in the sense that it reduces the bottlenecks that are arising out of handling and customs formalities that are required to be done at the sea ports by allowing the same to be done at these depots only that are situated near to them. The term ICDs was inserted in 1983 under Section 2(12) of the Customs Act, 1962 which defines ‘customs port’ and by the provisions of Section 7(1 )(aa) of the Customs Act, 1962 power has been given to the Central Board of Excise and Custom(CBEC) to notify which place alone to be considered as Inland Container Depots for the unloading of imported goods and the loading of export goods by Notification in the official Gazette.
11. With the purpose of boosting country’s infrastructure and specially the transport infrastructure, the Finance Act, 1995 which came into effect from 01.04.1996 brought an amendment to the provisions of Section 80-IA of the IT Act. Section 80-IA of the IT Act talks about deduction in respect of profits and gains from industrial undertaking or enterprises engaged in the infrastructure development etc. The said amendment for the first time brought a provision under which a percentage of profits derived from the operation of infrastructure facility was allowed a deduction while computing the income of the assessee. A ten years tax concession allowed to the enterprises in accordance with the provisions of the Section subject to fulfillment of conditions given therein, which develops, maintains and operates any new infrastructure facility such as roads, highways, expressways, bridges, airports, ports and rail system or any other public facility of similar nature as notified.
12. The relevant portion of Section 80IA (as it stood then) reads as under:
“Section 80-IA(4A):This section applies to:–any enterprise carrying on the business of developing, maintaining and operating any infrastructure facility which fulfills the following conditions, viz.,
Section 80-IA(5) clause(ia): in the case of enterprise referred to in sub-section (4A) hundred percent of profits and gains derived from such business for the initial five assessment years and thereafter thirty per cent of such profits and gains.”
13. The term infrastructure facility had also been defined which at the relevant time stood as follows:-
“Section 80-IA(12)(ca): Infrastructure facility means:-a road, highway, bridge, airport, port or rail system or any other public facility of similar nature as may be notified by the Board in this behalf in Official Gazette;”
The said provision gives the power to the Board to notify certain other enterprises which can avail the benefit of Section 80-IA of the IT Act, which do not fall within any of the specified categories but carries out activities of similar nature.
14. Further, Central Board of Direct Taxes (CBDT), in exercise of its power under Section 80-IA( 1 2)(ca), vide Notification No. S.O.744(E) dated 01.09.1998 notified ICDs and CFSs as infrastructure facility.
15. In addition to the above, the Finance Act, 1998, which came into effect on 04.1999, made a change in the definition of ‘Infrastructure facility’ as is relevant to the present case. The words ‘Inland water ways and inland ports’ were added in the definition of infrastructure facility. Now, the definition reads as under:
“Infrastructure Facility means road, bridge, airport, port, inland waterways and inland ports, rail system by any other public facility of similar nature as may be notified by the Board in this behalf in official Gazette.”
16. A noticeable change was further brought by the Finance Act, 2001, which came into effect from 01.04.2002, in the terms that the power of the Board to extend the benefit of the said provisions to any infrastructure facility of similar nature by issuing a Notification was taken away. The new explanation to Section 80-IA(4) of the IT Act as is substituted by the Finance Act, 2001 reads as under: For the purpose of this clause “infrastructure facility” means—
(a) a road including toll road, a bridge or a rail system;
(b) a highway project including housing or other activities being an integral part of the highway project;
(c) a water supply project, water treatment system, irrigation project, sanitation and sewerage system or solid waste management system;
(d) a port, airport, inland waterways or inland port;
17. It was contended on behalf of the appellant that the High Court erred in relying on the Notification issued by CBDT to hold that the enterprises holding ICDs are allowed to claim deductions under Section 80-IA of the IT Act. As the said power of the Board was specifically taken away by the amendment made by Finance Act, 2001, in light of the said amendment, the Notifications which were issued by the CBDT would cease to operate after the Assessment Year 2002-03.
18. The argument put forward by learned senior counsel for the appellant does not have much force as the said amendment is silent with regard to any effect it would have upon the Notifications issued earlier by the Board in due exercise of its Had it been the intention of the legislature that the Notifications issued by the Board earlier are of no effect after 2002-03, it would have had found a place in the said amendment. In the absence of the same, we are unable to concur with learned senior counsel that the Notifications which were issued in legitimate exercise of the power conferred on the Board would cease to have effect after the Assessment Year 2002-03.
19. Learned senior counsel for the appellant contended that the High Court committed a grave error in holding ICDs as Inland Ports. It was further contended that the ICDs are never understood to fall in the category of ‘Inland Port’ under the scheme of the IT Act. The argument in support of this contention is that if the word ‘Inland Port’, as used in the Explanation attached to Section 80-IA(4) of the IT Act defining ‘infrastructure facility’ includes ICDs, there would have been no need for the CBDT to separately exercise its power given under the said Section, as it stood then, to notify it as infrastructure facility. However, the argument does not hold much weight behind it as the Notification which was issued by the CBDT came into effect on 01.09.1998 i.e., the time when the term ‘Inland Port’ was not in itself inserted in the provisions of Explanation attached to Section 80-IA(4) of the IT Act defining the term ‘infrastructure facility’. It was inserted through Finance Act, 1998 which came into effect from 01.04.1999. So there seems to be no conflict within the Notification issued by the Board and the fact that the ICDs are Inland Ports or not.
20. Moreover, we find that the Respondent has been held entitled for the benefit of Section 80IA of the IT Act much before the Finance Act, 2001 which came into force on 01.04.2002 and exemption for the period of 10 years cannot be curtailed or denied by any subsequent amendment regarding the eligibility conditions under the period is modified or specific provision is made that the benefit from 04.2002 onwards shall only be claimed by the existing eligible units if they fulfil the new conditions.
21. Moving further to the issue whether the ICDs can be termed as Inland Ports so as to entitle deduction under Section 80-IA of the IT Act. The term port, in commercial terms, is a place where vessels are in a habit of loading and unloading goods. The term ‘Port’ as is used in the Explanation attached to Section 80-IA(4) seems to have maritime connotation perhaps that is the reason why the word airport is found separately in the Explanation. Considering the nature of work that is performed at ICDs, they cannot be termed as Ports. However, taking into consideration the fact that a part of activities that are carried out at ports such as custom clearance are also carried out at these ICDs, the claim of the respondent herein can be considered within the term ‘Inland port’ as is used in the Explanation. It is significant to note that the word ‘Inland Container Depots’ was first introduced in the definition of ‘Customs Port’ as is given in Section 2(12) of the Customs Act, 1962, through amendment made by the Finance Act, 1983 with effect from 13.05. 1983.
22. The term ‘Inland Port’ has been defined nowhere. But the Notification that has been issued by the Central Board of Excise & Customs (CBEC) dated 24.04.2007 in terms holds that considering the nature of work carried out at these ICDs they can be termed as Inland Ports. Further, the communication dated 25.05.2009 issued on behalf of the Ministry of Commerce and Industry confirming that the ICDs are Inland Ports, fortifies the claim of the respondent herein. Though both the Notification and communication are not binding on CBDT to decide whether ICDs can be termed as Inland Ports within the meaning of Section 80-IA of the IT Act, the appellant herein is unable to put forward any reasonable explanation as to why these notifications and communication should not be relied to hold ICDs as Inland Ports. Unless shown otherwise, it cannot be held that the term ‘Inland Ports’ is used differently under Section 80-IA of the IT Act. All these facts taken together clear the position beyond any doubt that the ICDs are Inland Ports and subject to the provisions of the Section and deduction can be claimed for the income earned out of these Depots. However, the actual computation is to be made in accordance with the different Notifications issued by the Customs department with regard to different ICDs located at different places.
23. In light of the forgoing discussion, we are of the view that judgment of the High Court does not call for any interference and, hence, the appeal is accordingly All the connected appeals are disposed of accordingly. The parties to bear cost on their own.
7. Thus, we find that the issue on merits is now squarely covered in favour of the Accordingly, in view of the aforesaid precedent, we quash this order passed u/s. 263 by the ld. CIT.
8. In the result, the assessee’s appeal stands allowed.