ITO 16(3)(1), MUMBAI V. SAMVAD NETWORK, MUMBAI

ITA 7358/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92951 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 13-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NEIL PHILIP
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI VIJAY PAL RAO ( JM ) AND D. KARUNAKAR A RAO, (AM) , . , ./ I.T.A. NO . 7358 / MUM/20 1 3 ( / ASSESSMENT YE A R : 20 0 9 - 10 ) INCOME TAX OFFICER, 16(3)(1), ROOM NO.219, 2 ND FLOOR, MATRU MANDIR, TARDEO ROAD, MUMBAI - 400007 / VS. M/S SAMVAD NETWORK ROOM NO.2,9/15, M P MARG, GARDI MANSION, OPERA HOUS E, MUMBAI - 400004 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN/GIR NO. : AAWFS6630C / ASSESSEE BY SHRI NEIL PHILIP / REVENUE BY SHRI ASHWIN KASHINATH / DATE OF HEARING : 1 4 .5.2015 / DATE OF PRONOUNCEMENT : 22.6 . 2015 / O R D E R PER VIJAY PAL RAO ( JM ) THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 4.9.2013 OF ORDER PA SSED BY THE LD.CIT(A) UNDER SECTION 143(3) OF THE INCOME TAX A C T, 1961 (THE ACT) FOR THE ASSESSMENT YEAR 200 9 - 10. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C. I T. (A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE DEDUCTION U/S 80IA(4)(II) OF THE IT ACT TO THE ASSESSEE, TREATING THE ASSESSEE AS ENGAGED IN THE BUSINESS OF PROVIDING BASIC TELECOM SERVICES UNDER FRANCHISEE SCHEME OF MTNL. 2. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN FOLLOWING T HE DECISION OF THE HONBLE ITAT IN THE CASE OF M/S KANSAN COMMUNICATION P LTD V/S D C IT. THE DECISION HAS NOT BEEN ACCEPTED BY DEPARTMENT AND THE ISSUE IS SUB - JUDICE 7358 /MUM/201 3 2 3. WE HAVE HEARD BOTH THE P ARTIES AND CONSIDERED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIME D DEDUCTION UNDER SECTION 80IA(4)(II) OF THE ACT WHICH WAS DENIED BY THE AO. ON APPEAL, THE LD. CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE IN PARAGRAPH 2.4.1 AND 2.4.2 OF THE ORDER AS UNDER : 2.4.1 I HAVE GIVEN MY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS, PERUSED T HE MATERIAL ON RECORD AND DULY CONSIDERED THE FACTUAL MATRIX OF THE CASE AS ALSO T HE APPLICABLE LEGAL POSITION 2.4.2 ALL THE GROUNDS OF APPEAL A RE IN RESPECT OF THE ACTION OF THE LD. AO. IN DISALLOWING THE DEDUCTION U/S.80 - IA(4)(II) BY HOLDING THAT THE APPELLANT WAS NOT A BASIC TELECOM OPERATOR AND WAS MERELY DELIVERING SERVICES PROVIDED BY MTNL. DURING THE COURSE OF APPELLATE PROCEEDINGS, LD. AR HAS STATED THAT THE APPELLANT'S CASE IS SQUARELY COVERED BY A SERIES OF DECISIONS IN ITS FAVOUR AT THE LEVEL OF ITAT IN APPELLANT'S OWN CASE STARTING FROM AYS. 2004 - 05 ONWARDS AND THE LD. AO. HAD COMPLETELY DISREGARDED THE RULE OF JUDICIAL DISCIPLINE BY S TATING THAT THESE DECISIONS HAD NOT BEEN ACCEPTED AND AN APPEAL HAS BEEN FILED BEFORE THE BOMBAY HIGH COURT. ON PERUSAL OF THE DECISION CITED BEFORE ME, I FIND THAT THE APPELLANTS CASE IS SQUARELY COVERED BY T HE DECISION OF HONBLE ITAT IN ITA NO.104 7 / M/2007 FOR AY 2004 - 05, ITA NO.1626 AND 1627/M/2009 FOR AY 2005 - 06 AND ITA NO.1653/1655/M/2010 FOR AY 2006 - 07. THE DECISION OF ITA NO.1047/M/2007 HAS BEEN FOLLOWED IN LATER DECISIONS AND IN FACT, THIS DECISION IS ITSELF BASED ON THE CASE OF M/S. KANSA N COMMUNICATION P. LTD. WHERE IT WAS HELD THAT THE ASSESSEE WAS PROVIDING BASIC TELECOMMUNICATION SERVICES AND WAS ENTITLED TO DEDUCTION U/S.80 - IA(4)(II). THEREFORE, RESPECTFULLY FOLLOWING THE SAID DECISIONS WHICH ARE BINDING ON ALL I T. AUTHORITIES IN MUMB AI, THE GROUNDS OF APPEAL RAISED BY THE APPELLANT ARE ALLOWED. 4. THUS, IT IS CLEARED THAT THE ISSUE IS COVERED BY THE DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASES FOR THE ASSESSMENT YEARS 2004 - 05 TO 2008 - 09. EVEN FROM THE GROUNDS OF APPEAL, IT IS CLEAR THAT THE APPEAL HAS BEEN FILED BY THE AO TO KEEP THE ISSUE ALIVE . F OR THE ASSESSMENT YEAR 2008 - 09, THE TRIBUNAL, IN ASSESSEES OWN CASE, VIDE ORDER DATED 13.5.2014 HAS CONSIDERED AND DECIDED AN IDENTICAL ISSUE IN PARAGRAPHS 2 TO 5 OF THE ORDE R AS UNDER : 2. AT THE TIME OF HEARING, THE AR POINTED OUT THAT THE ISSUE PERTAINING TO ALLOWANCE OF DEDUCTION U/ S 80IA(4 )(II), RAISED IN THE GOA ARE COVERED BY THE ORDER OF CIT(A) DATED 31.12.2008 IN ASSESSMENT YEAR 2005 - 06 AND CONSEQUENTLY BY THE ORDE R OF THE COORDINATE BENCH OF THE ITAT IN THE CASE OF T HE ASSESSEE IN ITA 7358 /MUM/201 3 3 NO. 1626 / MUM / 2009 DATED 12.02.2010, ON WHICH THE CIT(A) HAS ALSO PLACED RELIANCE TO ALLOW THE APPEAL OF THE ASSESSEE. THE AR PLACED BEFORE US THE SERIES OF ORDERS IN THE CASE OF THE A SSESSEE IN THE PRECEDING YEARS, WHEREIN, IDENTICAL ISSUES HAVE BEEN DEALT WITH AND THE STAND OF THE AO HAS BEEN REJECTED. THE FOLLOWING CASES ARE, PERTAINING TO THE ASSESSEE: I ITA NO. 994/MUM/2010 I ASST YEAR 2007 - 08 I ITA NO. 1653/ MUM/2010 I ASST - YEAR 2006 - 07 I ITA NO. 1626/ MU M/ 2009 I ASST YEAR 200~ - 06 ! ITA NO. 1047/ MUM/ 2009 I ASS T YEAR 2004,05 I ITA NO. 4355/ MUM/2002 I ASST YEAR 1998 - 99 3. SINCE THERE IS NO DISTURBANCE IN THE FACTS OF THE ISSUE IN QUESTION WHICH HAS BEEN CONSISTENTLY HELD IN THE ASSESSEES FAVOUR IN ALL THE ABOVE ORDERS OF THE CO - ORDINATE BENCHES OF MUMBAI ITAT, WE DO NOT FIND ANY REASON TO DEVIATE FROM THE CONSISTENT ORDERS, AND MORE IMPORTANTLY IN ABSENCE OF ANY CONTRARY DECISIONS. 4. THE DR ALSO A CCEPTED THE FACT THAT CONSISTENTLY THE ISSUE HAS BEEN HELD IN FAVOUR OF THE ASSESSEE 5. IN THESE CIRCUMSTANCES, WE REJECT THE GROUNDS TAKEN BY THE DEPARTMENT AND DISMISS THE APPEAL FILED BY THE DEPARTMENT. THUS, IT IS CLEAR THAT THIS IS A RECURRING ISSU E AND THE TRIBUNAL HAS BEEN DECIDING THIS ISSUE RIGHT FROM ASSESSMENT YEAR 2004 - 05 TILL 2008 - 09 IN FAVOUR OF THE ASSESSEE. FOLLOWING THE EARLIER ORDERS OF THIS TRIBUNAL , WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE LD. CIT(A) QUA THIS ISS UE. 5 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22 ND JUNE , 201 5 . 22 ND JUNE, 2015 SD SD ( . / D. KARUNAKAR A RAO) ( / VIJAY PAL RAO ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: 22 ND JUNE, 2015 . . . ./ SRL , SR. PS 7358 /MUM/201 3 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI