ITO WD 16(3)(1), MUMBAI v. SAMVED TELECOM, MUMBAI

ITA 1653/MUM/2010 | 2006-2007
Pronouncement Date: 28-01-2011 | Result: Dismissed

Appeal Details

RSA Number 165319914 RSA 2010
Assessee PAN AAOFS1587L
Bench Mumbai
Appeal Number ITA 1653/MUM/2010
Duration Of Justice 10 month(s) 27 day(s)
Appellant ITO WD 16(3)(1), MUMBAI
Respondent SAMVED TELECOM, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 28-01-2011
Assessment Year 2006-2007
Appeal Filed On 03-03-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER AND SHRI. V. DURGA RAO JUDICIAL MEMBER. I.T.A. NO. 1653/MUM/2010. ASSESSMENT YEAR : 2006-07. THE INCOME-TAX OFFICER M/S SAMVED TELECOM WARD-16(3)(1) VS. ROOM NO.2 GARDI MANSION MUMBAI. 9/15 MP MARG OPERA HOUSE MUMBAI 400 004. PAN AAOFS 1587L APPELLANT RESPONDENT. AND I.T.A. NO. 1655/MUM/2010. ASSESSMENT YEAR : 2006-07. THE INCOME-TAX OFFICER V S. M/S SAMVED NET WORK WARD-16(3)(1) MUMBAI. MUMBAI. PAN AAWFS6630C APPELLANT RESPONDENT. APPELLANT B Y : SHRI JITENDRA YADAV. DEPARTMENT BY : SHRI DHARM ESH SHAH. O R D E R PER J. SUDHAKAR REDDY A.M. : BOTH THESE APPEALS ARE FILED BY THE REVENUE DIRECTE D AGAINST THE SEPARATE ORDERS OF THE CIT(APPEALS)-27 MUMBAI DATED 21 ST DECEMBER 2009. THE COMMON GROUNDS RAISED IN THESE APPEALS READ AS FOLLOWS : 2 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE DEDUCTION U/S 80IA(4) OF THE IT ACT TO THE ASSESSEE TREATING THE ASSESSEE AS ENGAGED IN THE BUSINESS OF PROVIDING BASIC TELEC OM SERVICES UNDER FRANCHISEE SCHEME OF MTNL. 2. THE LEARNED CIT(A) ERRED IN FOLLOWING THE DECISION OF HONBLE ITAT IN THE CASE OF M/S KANSAN COMMUNICATION P. LTD. VS. DC IT. THE DECISION HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND THE ISS UE IS SUB-JUDICE. 2. THE LEARNED DR MR. JITENDRA YADAV WHILE AGREEI NG THAT THE SIMILAR ISSUE HAS COME UP BEFORE THIS BENCH OF THE TRIBUNAL IN TH E ASSESSEES OWN CASE AS WELL AS IN THE CASE OF KANSAN COMMUNICATION P. LTD. VS. DCIT IN ITA NO. 4355/MUM/02 DATED 12-09-2003 DREW THE ATTENTION OF THE BENCH TO THE MEMORANDUM EXPLAINING THE PROVISIONS OF THE FINANCE ACT WHICH INTRODUCED SECTION 80IA AND SUBMITTED THAT THE INTENT OF LEGIS LATURE IN BRINGING THIS EXEMPTION PROVISION WAS TO ENCOURAGE LARGE INFRAST RUCTURE FACILITIES SUCH AS ROADS HIGHWAY BRIDGES OR PORTS AND RAIL SYSTEM AND NOT SMALL EPABX SYSTEMS WHICH THE ASSESSEE IS RUNNING. AS PER THE LEARNED DR INS TALLING EPABX SYSTEM CANNOT BE CONSIDERED AS A MEASURE TO ACCELERATE ECONOMIC DEV ELOPMENT BY MAKING INVESTMENT IN INFRASTRUCTURE FACILITIES. 3. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTH ER HAND SUBMITTED THAT THE ISSUE HAS BEEN CONSIDERED IN THE FOLLOWING CASES : I) ITO VS. SAMVAD TELECOM IN ITA NO. 1048/MUM/2007 ORDER DATED 04-02-2009 FOR A.Y. 2004-05. II) ITO VS. SAMVAD TELECOM IN ITA NO. 1626/MUM/2009 ORDER DATED 12-02-010 FOR A.Y. 2005-06. III) KANSAN COMMUNICATION PVT.LTD. VS. DCIT IN ITA NO.4355/MUM/2002 ORDER DATED 12-09-2003. 3 HE POINTED OUT THAT THE CIT(APPEALS) HAS MERELY FOL LOWED THE DECISIONS OF THIS BENCH OF THE TRIBUNAL AND HENCE THERE IS NO ERROR I N THE SAME. 4. AFTER HEARING RIVAL CONTENTIONS WE FIND THAT IN GROUND NO.2 THE APPELLANT HAS STATED THAT THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF THE TRIBUNAL IN THE CASE OF KANSAN COMMUNICATION PVT. LTD. AND UNDER TH OSE CIRCUMSTANCES THIS APPEAL IS BEING FILED. IT IS AGREED THAT THE FACTS OF THIS CASE ARE IDENTICAL TO THAT OF THE CASE OF M/S KANSONS COMMUNICATION PVT. LTD. 5. THIS BENCH OF THE TRIBUNAL IN THE ASSESSEES OWN CASE IN THE EARLIER ASSESSMENT YEAR DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND THE FIRST APPELLATE AUTHORITY HAS CORRECTLY FOLLOWED THE SAME. THUS WE HAVE NO REASON WHATSOEVER TO INTERFERE IN THE ORDER OF THE FIRST APPELLATE AUTHO RITY. THUS WE UPHOLD THE SAME AND DISMISS THESE APPEALS OF THE REVENUE. 6. IN THE RESULT THE APPEALS OF THE REVENUE ARE DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JANUARY 2011. SD/- SD/- (V. DURGA RAO)) (J. SUDHAK AR REDDY) JUDICIAL MEMBER. A CCOUNTANT MEMBER MUMBAI DATED: 28 TH JANUARY 2011. 4 WAKODE COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR D-BENCH (TRUE COPY) BY ORDER ASSTT. REGISTRA R ITAT MUMBAI BENCHES MUMBAI.