DCIT, Bangalore V. M/s 3G Wireless Communication Private Limited, Bangalore

ITA 379/BANG/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63825 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-12-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 14-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SUNDERARAJAN
• Assessee Lawyers: J TEJAVATHI
• Section: 133A; 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C, BANGALORE BEFORE SMT. P.MADHAVI DEVI, JUDICIAL MEMBER A ND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER ITA NO.379/BANG/2012 (ASSESSMENT YEAR: 2008-09) DEPUTY COMMISSIONER OF INCOME - TAX, CIRCL E 12(4), BANGALORE. APPELLANT VS. M/S.3G WIRELESS COMMUNICATION PVT. LTD. NO.5, GULMOHAR ENCLAVE, KUNDALAHALLI GATE, BANGALORE - 560037. PAN :AAACZ1274A RESPONDENT A PPELLANT BY: SHRI A.SUNDERARAJAN, JCIT. RESPONDENT BY : MS. J. TEJAVATHI, ADVOCATE. DATE OF HEARING: 04 - 12 - 2012. DATE OF PRONOUNCEMENT: 04 - 12 - 2012. O R D E R PER SMT. P.MADHAVI DEVI, JM: THIS IS REVENUES APPEAL AND IS DIRECTED AGAINST T HE ORDER OF THE CIT(A)-III, BANGALORE, DATED 7-12-2011 FOR T HE ASSESSMENT YEAR 2008-09. 2. THE REVENUE IS AGGRIEVED BY THE ORDER OF THE CIT (A) IN ALLOWING DEDUCTION U/S 80-IB OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT'] BY FOLLOWING THE DECISION OF ITA NO.379/BANG/2012 PAGE 2 OF 4 THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR EARLIER ASSESSMENT YEAR. THE GRIEVANCE OF THE REVENUE IS THAT THE CIT (A) HAS NOT APPRECIATED THE FACT THAT THE ASSESSEE IS ONLY ENGA GED IN ASSEMBLING VARIOUS COMPONENTS AND NOT MANUFACTURING OF ANY NEW PRODUCT DIFFERENT FROM THE RAW-MATERIAL AND THE SAID FINDINGS WERE GATHERED DURING THE COURSE OF SURVEY IN THE AS SESSEES PREMISES. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-CO MPANY, WHICH IS ENGAGED IN THE BUSINESS OF TRADING, ASSEMB LING AND SERVICING OF WIRELESS COMMUNICATION EQUIPMENT, FILE D ITS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR DECLARING A TOTAL INCOME OF ` 72,00,120/- AFTER CLAIMING DEDUCTION OF ` 30,85,765/- U/S 80-IB OF THE ACT. DURING THE ASSESSMENT PROCEE DINGS U/S 143(3), THE AO OBSERVED THAT A SURVEY U/S 133A WAS CONDUCTED ON THE ASSESSEES PREMISES ON 8-6-2005 DURING WHICH CERTAIN INFORMATION WAS GATHERED AND AFTER CONSIDERING THE MATERIAL COLLECTED DURING THE SURVEY AND AFTER GIVING AN OPP ORTUNITY OF HEARING TO THE ASSESSEE, OBSERVED THAT THE ASSESSEE IS NOT INTO MANUFACTURING BUT HAS MERELY BROUGHT THE VARIOUS PA RTS AND MARKETED THEM AS A SINGLE PRODUCT. HE, THEREFORE, D ENIED DEDUCTION U/S 80-IB OF THE ACT. 4. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT(A), WHO AFTER CONSIDERING THE ASSESSEES SUBMIS SIONS OBSERVED THAT THE ISSUE FOR THE RELEVANT ASSESSMENT YEAR IS ITA NO.379/BANG/2012 PAGE 3 OF 4 SIMILAR TO THE FACTS FOR ASSESSMENT YEAR 2003-04 AN D AFTER CONSIDERING THE DECISION OF THE ITAT IN THE ASSESSE ES OWN CASE FOR ASSESSMENT YEAR 2002-03, FOLLOWED THE SAME AND ALLOWED THE ASSESSEES APPEAL. AGAINST THE SAME, THE ASSESSEE I S IN APPEAL BEFORE US. 5. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON T HE ORDER OF THE CIT(A) WHILE THE LEARNED DEPARTMENTAL REPRES ENTATIVE SUPPORTED THE ORDER OF THE AO. 6. HAVING HEARD BOTH THE PARTIES AND HAVING CONSIDE RED THE RIVAL CONTENTIONS, WE FIND THAT THE ASSESSEES BUSINESS REMAINS TO BE THE SAME AS IN THE ASSESSMENT YEAR 20 03-04 DURING WHICH PERIOD THE DISALLOWANCE OF DEDUCTION U /S 80-IB WAS MADE AND THE ISSUE WAS CONSIDERED AND ALLOWED BY TH E TRIBUNAL. AS THE FACTS AND CIRCUMSTANCES ARE SIMILAR, WE DO N OT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) AS IT IS IN CONSONANCE WITH THE DECISION OF THE ITAT IN THE ASS ESSEES OWN CASE. MERELY BECAUSE THE REVENUE HAS FILED AN APPE AL BEFORE THE HONBLE HIGH COURT U/S 260A OF THE ACT, THE PRECEDE NTIAL VALUE OF THE ITATS ORDER IS NOT LOST. IN VIEW OF THE SAME, THE REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4TH DECEMBER , 2012 . SD/- SD/- (JAS O N P. BOAZ ) ACCOUNTANT MEMBER (SMT. P. MADHAVI DEVI) JUDICIAL MEMBER EKSRINIVASULU ITA NO.379/BANG/2012 PAGE 4 OF 4 COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) CONCERNED 4. CIT 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBU NAL, BANGALORE