Appeal details
Counselvise Citation
[2011] 140 COUNSELVISE.COM (IT) 53741 (ITAT-HYDERABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
8 month(s) 26 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
31-10-2011
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
31-10-2011
Assessment Year
2004-2005
Appeal Filed On
04-02-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER I .T.A. NO. 188/HYD/2011 ASSESSMENT YEAR : 2004-05 DEPUTY CIT CIRCLE-16(1) HYDERABAD VS. M/S. NORTHGATE TECHNOLOGIES LTD., HYDERABAD PAN: AABCN7735P APPELLANT RESPONDENT I .T.A. NO. 1628/HYD/2010 ASSESSMENT YEAR : 2004-05 M/S. NORTHGATE TECHNOLOGIES LTD., HYDERABAD PAN: AABCN7735P VS. DEPUTY CIT CIRCLE-16(1) HYDERABAD APPELLANT RESPONDENT REVENUE BY: SHRI P. PEERYA ASSESSEE BY: NONE DATE OF HEARING: 31.10.2011 DATE OF PRONOUNCEMENT: 31.10.2011 O R D E R PER CHANDRA POOJARI, AM: THESE TWO APPEALS, ONE BY THE REVENUE AND THE OTHER BY THE ASSESSEE, ARE DIRECTED AGAINST THE ORDER OF THE CIT (A)-V, HYDERABAD DATED 25.10.2010 FOR THE ASSESSMENT YEAR 2004-05. 2. THE REVENUE RAISED THE FOLLOWING GROUND OF APPEA L: 'THE CIT(A)-V, HYDERABAD ERRED IN HOLDING THAT THE CARRIER CHARGES AND BANDWIDTH CHARGES CANNOT BE CLASSIFIED AS 'TELECOMMUNICATION CHARGES' USED FOR DELIVERY OF THE PRODUCT. THE CONTENTION OF THE CIT (A) IS NOT ACCEPTABLE SINCE THE ASSESSEE COMPANY IS ENGAGE D IN EXPORT BUSINESS OF PROVIDING INFORMATION TECHNOL OGY SERVICES AND TELE-COMMUNICATION RELATED SERVICES WH ICH ARE IN THE NATURE OF TELE-COMMUNICATION CHARGES AS DISCUSSED IN THE ASSESSMENT ORDER AND THE SAME ARE REQUIRED FOR DELIVERY OF THE ABOVE SERVICES OUTSIDE INDIA AND THEREFORE, TO BE REDUCED FROM THE EXPORT TURNOV ER AS LAID DOWN IN CLAUSE (IV) UNDER EXPLANATION 2 IN SEC TION 10A OF I.T. ACT, 1961.' I.T.A. NOS. 188/H/2011 & 1628/H/ 2010 M/S. NORTHGATE TECHNOLOGIES LTD. ============================= 2 3. AFTER HEARING THE LEARNED DR, WE ARE OF THE OPIN ION THAT THIS ISSUE IS COVERED AGAINST THE DEPARTMENT BY THE ORDE R OF THE TRIBUNAL CHENNAI SPECIAL BENCH IN THE CASE OF ITO VS. SAK SO FT LTD. (2009- TIOL-187-ITAT-MAD-SB) WHEREIN IT WAS HELD THAT FREI GHT, TELE- COMMUNICATION CHARGES OR INSURANCE ATTRIBUTABLE TO THE DELIVERY OF THE ARTICLES OR THINGS OR COMPUTER SOFTWARE OUTSIDE IND IA OR EXPENSES, IF ANY, INCURRED IN FOREIGN EXCHANGE IN PROVIDING TECH NICAL SERVICES OUTSIDE INDIA, IF EXCLUDED FROM THE EXPORT TURNOVER IN THE NUMERATOR SHOULD ALSO BE EXCLUDED FROM THE TOTAL TURNOVER IN THE DENOMINATOR. 4. RESPECTFULLY FOLLOWING THE ABOVE ORDER OF THIS TRIB UNAL, WE ARE INCLINED TO DECIDE THE ISSUE AGAINST THE DEPARTMENT . REVENUE APPEAL IS DISMISSED. 5. NOW COMING TO THE ASSESSEE'S APPEAL. THIS APPEA L WAS LAST POSTED FOR HEARING ON 19.4.2011 AND ON THAT DATE HEARING O F THE APPEAL WAS ADJOURNED TO 13.7.2011 AT THE REQUEST OF THE ASSESS EE'S COUNSEL. ON 13.7.2011 AGAIN AT THE REQUEST OF THE ASSESSEE'S CO UNSEL HEARING WAS ADJOURNED TO 31.10.2011. HOWEVER, ON 31.10.2011 NO NE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT PETITION SEEKIN G ADJOURNMENT OF THE HEARING WAS SUBMITTED BEFORE THIS TRIBUNAL. THIS CONDUCT OF THE ASSESSEE SHOWS THAT THE ASSESSEE IS NOT INTERESTED IN PROSEC UTING ITS APPEAL. FOLLOWING THE RATIO LAID DOWN BY THE DELHI BENCH OF THIS TRIBUNAL IN CIT V. MULTIPLAN INDIA LIMITED REPORTED IN 38 ITD 320, THE APPEAL OF THE ASSESSEE IS NOT ADMITTED AND DISMISSED IN LIMINE. 6. HOWEVER, THE ASSESSEE IS AT LIBERTY TO FILE A PETIT ION FOR RECALLING THIS ORDER, IF THERE IS SUFFICIENT CAUSE FOR NON-AP PEARANCE ON THE DATE OF HEARING I.E., ON 31.10.2011. 7. IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2011. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 31 ST OCTOBER, 2011 I.T.A. NOS. 188/H/2011 & 1628/H/ 2010 M/S. NORTHGATE TECHNOLOGIES LTD. ============================= 3 COPY FORWARDED TO: 1. THE DEPUTY CIT, CIRCLE-16(2), AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD. 2. M/S. NORTHGATE TECHNOLOGIES LTD., 2 ND FLOOR, JR TOWERS, ROAD NO. 2, BANJARA HILLS, HYDERABAD-500 034. 3. THE CIT(A)-V, HYDERABAD. 4. THE CIT-IV, HYDERABAD. 5. THE DR A BENCH, ITAT, HYDERABAD TPRAO
