DCIT (E), New Delhi V. M/s National Internate Exchange of India, New Delhi

ITA 2468/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2947 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 03-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJAN CHOPRA
• Section: 11

Judgement Text

ITA NOS. 2468 & 2469/DEL/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NOS.-2468 & 2469/DEL/2016 ( ASSESSMENT YEARS: 2010-11 & 2012-13) DCIT (E) CIRCLE 2(1) NEW DELHI. VS NATIONAL INTERNATE EXCHANGE OF INDIA, 68, UPPALS M6, PLAZA 6, JASOLA DISTRICT, CENTRE, NEW DELHI. AABCN9308A ASSESSEE BY SH. RAJAN CHOPRA, CA REVENUE BY SH. MUNISH KUMAR GUPTA, CIT DR ORDER PER K. NARSIMHA CHARY, J.M. THESE TWO APPEALS RELATING TO THE ASSESSMENT YEARS 2010-11 & 2012-13 BY THE REVENUE CHALLENGING THE ORDERS OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-36, NEW DELHI (FOR SHORT CALLED AS THE LD. CIT (A)) ON THE FOLLOWING GROUND S OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT (A) HAS ERRED IN LAW IN IGNORING THE FACT THAT THE A CTIVITIES OF THE ASSESSEE INVOLVE RENDERING OF SERVICES IN RELATION TO CARRYING ON OF A COMMERCE OR BUSINESS AND HENCE, PROVISO TO SECTION 2(15) IS CLEARLY APPLICABLE IN CASE OF THE ASSESSEE. 2. THE ASSESSEE CRAVES LEAVE TO ADD, TO ALTER OR AMEND ANY GROUND OF APPEAL RAISED ABOVE AT THE TIME OF HEARING. 2. BRIEFLY STATED FACTS ARE THAT NATIONAL INTERNET EXCHANGE OF INDIA (NIXI) WAS FORMED IN 2003 BY THE GOVERNMENT O F INDIA UNDER THE MINISTRY OF COMMUNICATION AND INFORMATION TECHNOLOGY DATE OF HEARING 20 .12 .2017 DATE OF PRONOUNCEMENT 26 .12.2017 ITA NOS. 2468 & 2469/DEL/2016 2 FOR THE PURPOSE OF PROMOTION AND GROWTH OF INTERNET SERVICES FOR THE PUBLIC. IT IS REGISTERED U/S 25 OF THE COMPANY S ACT; ON THE BASIS OF NO PROFIT NO LOSS. THE ASSESSEE IS ALSO R EGISTERED U/S 12AA(1) OF THE INCOME TAX ACT, 1961 (FOR SHORT CALL ED AS THE ACT) VIDE ORDER DATED 31.03.2009. THE AO STATED IN THE ASSESSMENT ORDER THAT THE ASSESSEE IS DOING ACTIVITIES ON COMM ERCIAL LINES WHICH ARE IN THE NATURE OF BUSINESS. HENCE, THE AS SESSEE IS HIT BY THE PROVISO TO SECTION 2(15). THE WHOLE OF SURPLUS WAS BROUGHT TO TAX BY WITHDRAWING EXEMPTION UNDER SECTION 11. 3. IN APPEAL LD. CIT (A) FOLLOWED THE ORDERS OF THE TR IBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2004-0 5 AND 2009- 10 AND ALSO THE DECISION OF THE HONBLE JURISDICTIO NAL HIGH COURT IN INDIA TRADE PROMOTION ORGANIZATION VS. DGIT (E), 53 TAXMANN.COM 404 (DELHI) 2015 (ORDER DATED 22.01.201 5) AND HELD SINCE THE ASSESSEE HAS BEEN CREATED BY THE GOV T. OF INDIA FOR THE PROMOTION AND GROWTH OF INTERNET SERVICES FOR T HE GENERAL PUBLIC AND AS SUCH THE ASSESSEE CANNOT INVOLVE IN A NY COMMERCIAL OR BUSINESS ACTIVITY. HE, THEREFORE, ALLOWED EXEMP TION U/S 11 OF THE ACT TO THE ASSESSEE. THE REVENUE IS, THEREFORE , IN THIS APPEAL BEFORE US. 4. LD. DR SUBMITTED THAT THE ASSESSEE WAS DOING ACT IVITIES ON COMMERCIAL LINES WHICH ARE IN THE NATURE OF BUSINES S, AS SUCH, THE ASSESSEE IS HIT BY THE PROVISO TO SECTION 2(15) OF THE ACT, BUT BY IGNORING THIS FACT LD. CIT (A) GRANTED RELIEF TO THE ASSESSEE. PER CONTRA, IT IS THE ARGUMENT OF THE LD. AR THAT EARLI ER ALSO WHEN THE ASSESSEE WAS DENIED OF EXEMPTION U/S 11 OF THE ACT, THE MATTER HAD REACHED THE LEVEL OF THE TRIBUNAL FOR THE ASSES SMENT YEARS 2004-05 AND 2009-10 AND THE TRIBUNAL GRANTED RELIEF TO THE ITA NOS. 2468 & 2469/DEL/2016 3 ASSESSEE. FURTHER LD. CIT (A) WHILE FOLLOWING THE ORDERS OF THE TRIBUNAL ALSO FOLLOWED THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF INDIA TRADE PROMOTION ORG ANIZATION VS. DGIT (E) (SUPRA), THEREFORE, SUCH AN ORDER CANNOT B E INTERFERED WITH. 5. WE HAVE CAREFULLY GONE THROUGH THE RECORD. ABSO LUTELY THERE IS NO DISPUTE THAT THE ASSESSEE IS FORMED IN 2003 B Y THE GOVT. OF INDIA UNDER THE MINISTRY OF COMMUNICATION AND INFOR MATION TECHNOLOGY FOR THE PROMOTION AND GROWTH OF INTERNET SERVICES OF PUBLIC AND IS REGISTERED U/S 25 OF THE COMPANYS AC T AND ALSO REGISTERED U/S 12AA(1) OF THE ACT. THERE IS ALSO N O DISPUTE THAT ON A SIMILAR SET OFF FACTS THAT THE TRIBUNAL IN ASS ESSEES OWN CASE FOR THE ASSESSMENT YEARS 2004-05 AND 2009-10 HELD T HAT THE ACTIVITIES OF THE ASSESSEE ARE NOT IN THE NATURE OF BUSINESS. WE FURTHER FIND THAT THE FACTS OF THIS CASE ARE VERY M UCH SIMILAR TO THE FACTS INVOLVED IN INDIA TRADE PROMOTION ORGANIZ ATION. WE, THEREFORE, FIND THAT THE LD. CIT (A) RIGHTLY FOLLOW ED THE BINDING PRECEDENT OF THE HONBLE JURISDICTIONAL HIGH COURT AND ALSO THE DECISIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE FO R THE EARLIER YEARS TO HOLD THAT THE ACTIVITIES OF THE ASSESSEE A RE NOT IN THE NATURE OF THE BUSINESS AND ALLOWED EXEMPTION U/S 11 OF THE ACT. WE, THEREFORE, FIND THAT THE IMPUGNED ORDER DOES NO T SUFFER ANY ILLEGALITY OR IRREGULARITY, AS SUCH, IT CANNOT BE I NTERFERED WITH. ACCORDINGLY, WE FIND THE GROUNDS OF APPEAL AS DEVOID OF MERITS AND ARE LIABLE TO BE DISMISSED. ITA NOS. 2468 & 2469/DEL/2016 4 6. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.12.2017 SD/- SD/- (N.K. SAINI) (K. NARSIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED: 26.12.2017 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI