MAX ALERT SYSTEMS P.LTD, MUMBAI V. ITO WD 5(2)(3), MUMBAI

ITA 392/MUM/2013

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4706 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 14-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 80IA

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI SANDEEP GOSAIN (JM) I.T.A. NO. 392 /MUM/ 201 3 (ASSESSMENT YEAR 20 09 - 10 ) M/S. MAX ALERT SYSTEMS PRIVATE LIMITED 17, GROUND FLOOR SHILPIN CENTRE, 40 G.D. AMBEDKAR MA RG, WADALA MUMBAI - 400 031. PAN : AAECM0770G V S . ITO WARD 5(2)(3) MUMBAI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY MS. DINKLE HARIA DEPARTMENT BY SHRI ASHISH KUMAR DATE OF HEARING 24 .7 . 201 9 DATE OF PRONOUNCEMENT 2 . 8 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 16.0.2012 AND PERTAINS TO A.Y. 2009 - 10. 2. THE GROUNDS OF APPEAL READ AS UNDER : - ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ERRED IN NOT ALLOWING THE DEDUCTION U/S. 80IA OF THE I.T. ACT, 1961 TO THE EXTENT OF RS. 1,62,87,250/ - WITHOUT UNDERSTANDING THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE REASONS ASSIGNED FOR DOING SO ARE WRONG AND CONTRARY TO THE PROVISIONS OF THE I.T. ACT AND THE RULES MADE THERE UNDER . 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE MADE CLAIM OF DEDUCTION U/S. 80IA. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS CLAIMED TO BE ENGAGED IN BUSINESS OF TELECOMMUNICATION SERVICE. BUT THE ASSESSING OFFI CER HELD THAT THE ASSESSEES ACTIVITY FELL UNDER THE HEAD CIVIL CONTRACTOR. ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS NOT BEEN ABLE TO PINPOINT AS TO WHICH CLAUSE OF SECTION 80IA(4) ASSESSEES ACTIVITY FELL INTO. HENCE, THE ASSESSING OFFICER REJE CTED THE ASSESSEES CLAIM OF REDUCTION U/S. 80IA. M/S. MAX ALERT SYSTEMS PRIVATE LIMITED 2 4. UPON ASSESSEES APPEAL LEARNED CIT(A) NOTED THE SUBMISSIONS OF THE ASSESSEE AND THE CASE LAW REFERRED. THE SUBMISSIONS AND CASE LAW REFERRED SHOWED THAT THE ASSESSEES CLAIM WAS THAT OF INFRASTRUCTURE D EVELOPMENT AND MAINTENANCE OF INFRASTRUCTURE FACILITY. HOWEVER, LEARNED CIT(A) NOTED THAT THE ASSESSEE HAS CLAIMED BEFORE HIM THAT ITS CASE FALLS IN THE CATEGORY OF (I) DEVELOPING (II) MAINTAINING AND OPERATING OR (III) DEVELOPING, MAINTAINING AND OPERATIN G OF TELECOMMUNICATION SERVICES. 5. LEARNED CIT(A) PROCEEDED TO EXAMINE THE DEFINITION OF TELECOMMUNICATION SERVICE AND HELD THAT CREATION OF TELECOM T OWER DOES NOT COME UNDER THE MEANING OF TELECOMMUNICATION SERVICE. HENCE, HE CONFIRMED THE ASSESSING O FFICERS ORDER. 6. AGAINST THE ABOVE ORDER ASSESSEE IS IN APPEAL BEFORE US. 7. LEARNED COUNSEL OF THE ASSESSEE SUBMITTED BEFORE US A SUBMISSION DETAILING THE ACTIVITY OF THE ASSESSEE. THE SAID SUBMISSION INTER ALIA MENTIONED THAT THE ASSESSEE WAS ENG AGED INTO PROVIDING INFRASTRUCTURE FACILITY SERVICES. LEARNED COUNSEL SUBMITTED THAT THE ASSESSEES CLAIM WAS FALLING UNDER SECTION 80IA(4) CLAUSE (I) OF THE I.T. ACT. HOWEVER, SHE SUBMITTED THAT THERE WAS SOME CONFUSION BEFORE THE AUTHORITIES BELOW ON ASS ESSEES CLAIM WHICH WAS CONSIDERED UNDER SECTION 80IA(4) OF THE ACT. ACCORDINGLY, LEARNED COUNSEL PRAYED THAT THE MATTER MAY BE REMITTED TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH. 8. LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT HAVE ANY SERIOUS PROPOSITION TO THIS PROPOSITION. 9. UPON CAREFUL CONSIDERATION, WE FIND THAT IT IS THE CLAIM OF THE ASSESSEE THAT ITS CLAIM U/S. 80IA(4) CLAUSE (I) BEING DEVELOPING, OPERATING, MAINTAINING AND OPERATING ANY INFRASTRUCTURE FACILITY . H OWEVER TH E AUTHORITIES BELOW HAVE CONSIDERED THE CLAIM OF THE ASSESSEE UNDER SECTION 80IA(4) CLAUSE ( I I) BEING TELECOMMUNICATION SERVICES. M/S. MAX ALERT SYSTEMS PRIVATE LIMITED 3 10. IN VIEW OF THE AFORESAID FACTS, IN OUR CONSIDERED OPINION THE MATTER NEEDS TO BE REMITTED TO THE FILE OF THE ASSESSING OFF ICER. THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE ISSUE AFRESH IN THE LIGHT OF OUR OBSERVATIONS AND THE ASSESSEES SUBMISSIONS. NEEDLESS TO ADD THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 11. IN THE RESULT, APPEAL FILED BY TH E ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 2 . 8 . 201 9 . SD/ - SD/ - (SANDEEP GOSAIN ) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 2 / 8 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI