The DCIT, Circle-3(3), Ahmedabad V. Shri Himanshu V.Shah, Ahmedabad

ITA 2074/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5876 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 10-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI N. K. BILLAIYA , ACCOUNTANT MEMBER AND SHRI S. S. GODARA, JUDICIAL MEMBER ITA NO. 2074/AHD/2016 (ASSESSMENT YEAR : 2012-13) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-3(3), AHMEDABAD A PPELLANT VS. SHRI HIMANSHU V. SHAH C-1, 1 ST FLOOR, SURYA APARTMENT, OPP. NAVNEET HOUSE, GURUKL ROAD, AHMEDABAD RESPONDENT PAN: ACZPS3768E / BY REVENUE : SHRI PRASOON KABRA, SR. D.R. / BY ASSESSEE : SHRI PARIN SHAH, A.R. /DATE OF HEARING : 20.03.2018 /DATE OF PRONOUNCEMENT : 23.03.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2012-13 A RISES FROM THE CIT(A)- 3, AHMEDABADS ORDER DATED 08.06.2016, IN CASE NO. CIT(A)-3/CIR.3(3)/208/15-16, IN PROCEEDINGS U/S.143(3) OF THE INCOME TAX ACT, 19 61; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. WE NOTICE AT THE OUTSET THAT THE REVENUES SOLE SUBSTANTIVE GROUND SEEKING TO REVIVE THE IMPUGNED SECTION 80IA DISALLOWANCE CHALL ENGES CORRECTNESS OF THE ITA NO. 2074/AHD/16 [DCIT VS. SHRI HIMANSHU V. SHA H ] A.Y. 2012-13 - 2 - CIT(A)S ORDER REVERSING ASSESSING OFFICERS ACTION IN QUESTION WITH THE FOLLOWING DETAILED DISCUSSION: 4.2 DECISION: I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE IN THE LIGHT OF SUBMISSIONS MADE BY THE APPELLANT, THE ARGUMENTS TAKEN BY THE ASSESSING OFFICER & MATERIAL AVAILABLE ON RECORDS. IT IS THE CASE OF THE APPELLANT THAT IF HAD PROVIDED TO THE A O ALL THE DOCUMENTS ETC INCLUDING LICENSE AGREEMENT ETC DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT HAS BEEN ARGUED THAT THE A O WAS INFORMED VIDE LETTER DT 09-02-2015, THAT ON SIMILAR FACTS THE ADD ITIONS MADE IN APPELLANT'S CASE FOR AJ97-98 TO 2001-02 AND 2002-03 TO 2010-11 STAND AL LOWED BY APPELLATE AUTHORITIES BEING HON'BLE JURISDICTIONAL TRIBUNAL A ND CIT(A) FOR DIFFERENT YEARS AS WELL AS UPTO A.Y.2007-08 BY HON'BLE HIGH COURT OF G UJARAT. THE APPELLANT HAS ARGUED THAT AS FACTS OF THE CASE FOR THE PRESENT YE AR ARE IDENTICAL TO THOSE OF IN EARLIER YEARS AND THAT IT HAD BEEN ALLOWED DEDUCTIO N U/S. 80IA BY HON'BLE JURISDICTIONAL TRIBUNAL AND CIT(A) THEREFORE THERE WAS NO CASE FOR ANY ADDITION DISALLOWANCE. ON CAREFUL CONSIDERATION, IT IS NOTED THAT THE FACTS OF THE CASE OF THE CURRENT YEAR ARE IDENTICAL TO THOSE EXISTING IN EAR LIER YEARS. WHILE DENYING THE CLAIM U/S- 801A/801B FOR A Y 97-98 TO 2001-02 AND 2 002-03 TO 2010-11,THE ERSTWHILE A OS HAD CONCLUDED THAT THE APPELLANT BEI NG MERELY A FRANCHISE OF BSNL WAS NOT ELIGIBLE FOR ALLOWANCE OF DEDUCTION U/S. 80 1A/80IB. IN APPEAL, HON'BLE JURISDICTIONAL TRIBUNAL AND CIT(A) FOR RESPECTIVE Y EARS CONCLUDED THAT THE APPELLANT WAS ELIGIBLE FOR ALLOWANCE OF DEDUCTION U /S. SIMILARLY HON'BLE HIGH COURT OF GUJARAT HAS ALSO DISMISSED APPEALS FILED B Y DEPARTMENT AGAINST THE ORDER OF THE HON'BLE IT AT, WHICH HAS DECIDED, THE MATTER IN FAVOUR OF THE APPELLANT FOR ALL THESE ASSESSMENT YEARS. 801A/801B AND HENCE WAS ALLOWED THE DEDUCTION. MERELY THE ORDER OF THE TRIBUNAL IS CONTESTED BY DE PARTMENT BEFORE THE JURISDICTIONAL HIGH COURT WOULD NOT BE A GOOD REASO N FOR SUSTAINING THE SAID ADDITION. IN THE INSTANT CASE, THE A 0 HAS NOT BEEN ABLE TO EFFECTIVELY ESTABLISH IN THE ASSESSMENT ORDER WITH ANY COGENT EVIDENCE AS TO HOW THE FACTS OF THE CASE ARE DIFFERENT. AS PER NARRATION MADE IN THE ASSESSMENT ORDER, THE APPELLANT WAS DENIED CLAIM OF DEDUCTION U/S. 80IA / 801B ON THE PREMISE THAT HE WAS MERELY A FRANCHISE HOLDER OF BSNL/TELECOM DEPARTMENT AND IS NOT A PROV IDER OF A BASIC OR CELLULAR TELECOM SERVICES AND THAT THEREFORE NOT ELIGIBLE FO R CLAIM OF DEDUCTION. NOW ONCE THE FACTS OF THE CASE OF THE PRESENT APPEAL ARE IDE NTICAL TO THOSE OF EARLIER YEARS, THEN THE DECISION OF HONBLE TRIBUNAL IS REQUIRED T O BE FOLLOWED. RECORDS INDICATE THAT MY PREDECESSORS BEING CIT(APPEALS) HAS ALLOWED RELIEF TO THE APPELLANT FOR AY 2002-03 TO 2009-10, DIRECTING THE AO TO ALLOW DEDUC TION U/S. 80IA , BY FOLLOWING THE ORDER OF THE HON'BLE JURISDICTIONAL TRIBUNAL FO R A Y 97-98 TO 2001-02. ALSO, THE APPELLANT HAS ARGUED THAT A COPY OF LICENSE WAS PRO VIDED TO THE A 0. AS INDICATED IN ASSESSMENT ORDER ITSELF, THOUGH THE APPELLANT IS OP ERATING FROM DIFFERENT STATIONS, YET THE FORMAT OF LICENSE AGREEMENTS EXECUTED BY TE LECOM AUTHORITY WAS STANDARD AND COMMON TO ALL. THIS GOES ON TO INDICATE THAT TH ERE WAS ACTUALLY NO VALID REQUIREMENT FOR INSISTENCE BY THE AO UPON THE APPEL LANT FOR PROVIDING LICENSE AGREEMENT FOR ALL THE STATIONS, SINCE ONE AGREEMENT SERVED FOR ALL. CONSEQUENTLY, RESPECTFULLY FOLLOWING THE ORDERS OF HON'BLE TRIBUN AL IN APPELLANTS OWN CASE FOR A Y 97-98 TO 2001-02 AND MY PREDECESSORS IN APPELLANT 'S OWN CASE FOR A Y 2002-03 TO 2010- 11 AS WELL AS ORDER OF THE HON'BLE HIGH CO URT UPTO A.Y.2007-08, THE A 0 IS DIRECTED TO ALLOW THE DEDUCTION CLAIMED BY THE APPE LLANT U/S. 80IA/80IB OF THE ACT. ITA NO. 2074/AHD/16 [DCIT VS. SHRI HIMANSHU V. SHA H ] A.Y. 2012-13 - 3 - CONSEQUENTLY, THE GROUND OF APPEAL NO. 2, COMPRISIN G SUB ROUNDS 2.1 ,2.2, & 2.3 ARE ALLOWED. 3. LEARNED DEPARTMENTAL REPRESENTATIVE REITERATES R EVENUES PLEADINGS THAT THE CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN DELE TING THE IMPUGNED DISALLOWANCE. HE FAILS TO DISPUTE THE FACT THAT THE ASSESSEE HAS ALREADY SUCCEEDED ON THE VERY ISSUE IN PRECEDING ASSESSMENT YEARS. MR. KABRA THEN ARGU ES THAT THE ASSESSEE HAD CLAIMED THE IMPUGNED DEDUCTION FOR THE ASSESSMENT YEAR 1997 -98 WHEREAS THE IMPUGNED ASSESSMENT YEAR 2012-13 IS WELL BEYOND THE 15 ASSES SMENT YEARS THEREFROM. MR. PARIN SHAH ON THE OTHER HAND FILES BEFORE US A COMP ILATION CHART INDICATING UNITS IN QUESTION CLAIMING THE IMPUGNED DEDUCTION TO BE NOS. 4, 8 & 9 AS PER FORM 10CCB FROM ASSESSMENT YEARS 2003-04 & 2004-05. ALL THIS HAS GONE UNREBUTTED FROM REVENUE SIDE. WE THEREFORE ADOPT JUDICIAL CONSISTE NCY IN AFFIRMING CIT(A)S FINDINGS UNDER CHALLENGE. 4. THIS REVENUES APPEAL IS DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF MARCH, 2018.] SD/- SD/- ( N. K. BILLAIYA ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD: DATED 23/03/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0