Samvad Network, Mumbai vs Department Of Income Tax

आयकर अपील य अ धकरण, मुंबई यायपीठ "ई" मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI BEFORE S/SHRI VIJAY PAL RAO (JM) AND D. KARUNAKARA RAO, (AM) सव ी वजय पाल राव, या यक सद य एवं डी. क णाकर राव, लेखा सद य के सम

आयकर अपील सं./I.T.A. No.7358/Mum/2013 ( नधारण वष / Assessment Year :2009-10)

Income Tax Officer, 16(3)(1), बनाम/ M/s Samvad Network Room No.219, 2nd Floor, Room No.2,9/15, M P Marg, Vs. Matru Mandir, Tardeo Road, Gardi Mansion, Opera House, Mumbai-400007 Mumbai-400004 (अपीलाथ /Appellant) .. ( यथ / Respondent)

थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. :AAW FS6630C

अपीलाथ ओर से / Assessee by Shri Neil Philip यथ क ओर से/ Revenue by Shri Ashwin Kashinath

सन ु वाई क तार ख / Date of Hearing : 14.5.2015 घोषणा क तार ख /Date of Pronouncement : 22.6.2015

आदे श / 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 passed by the ld.CIT(A) under section 143(3) of the Income Tax Act, 1961 (the Act) for the assessment year 2009-10.

2. The revenue has raised following grounds:

"1. On the facts and in the circumstances of the case and in law, the learned C.IT. (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 the decision of the Hon'ble ITAT in the case of M/s Kansan Communication P Ltd V/s DCIT. The decision has not been accepted by department and the issue is sub-judice"

2 7 3 5 8 / Mu m / 2 0 1 3

3. We have heard both the parties 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 the material on record and duly considered the factual matrix of the case as also the applicable legal position

2.4.2 All the grounds of appeal are 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 stating 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 appellant's case is squarely covered by the decision of Hon'ble ITAT in ITA No.1047/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. Kansan 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 IT. authorities in Mumbai, 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 assessee's 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. For the assessment year 2008-09, the Tribunal, in assessee's own case, vide order dated 13.5.2014 has considered and decided an identical issue in paragraphs 2 to 5 of the order 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 order of the Coordinate Bench of the ITAT in the case of the assessee in ITA 3 7 3 5 8 / Mu m / 2 0 1 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 assessee 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 Asst 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 assessee's 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 accepted 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 issue 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 issue.

5. In the result, the appeal of the Revenue is dismissed.

The above order was pronounced in the open court on 22nd June, 2015. घोषणा खल ु े यायालय म दनांकः 22 June, 2015 को क गई ।

nd

Sd sd

(डी. क णाकर राव/D. KARUNAKARA RAO) ( वजय पाल राव/VIJAY PAL RAO) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai:22 nd June, 2015. व. न.स./ SRL , Sr. PS 4 7 3 5 8 / Mu m / 2 0 1 3

आदे श क त ल प अ े षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent.

3. आयकर आयु त(अपील) / The CIT(A)- concerned

4. आयकर आयु त / CIT concerned

5. वभागीय त न ध, आयकर अपील य अ धकरण, मुंबई / DR, ITAT, Mumbai concerned

6. गाड फाईल / Guard file.

आदे शानस ु ार/ BY ORDER, True copy सहायक पंजीकार (Asstt. Registrar) आयकर अपील य अ धकरण, मंब ु ई /ITAT, Mumbai