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Income Tax Appellate Tribunal, “B” Bench, Mumbai
Before: Shri Shamim Yahya (AM) & Shri Sandeep Gosain (JM)
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.
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 Officer held that the assessee’s 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) assessee’s activity fell into. Hence, the Assessing Officer rejected the assessee’s claim of reduction u/s. 80IA.
2 M/s. Max Alert Systems Private Limited
Upon assessee’s appeal learned CIT(A) noted the submissions of the assessee and the case law referred. The submissions and case law referred showed that the assessee’s claim was that of infrastructure development 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 operating of telecommunication services.
Learned CIT(A) proceeded to examine the definition of telecommunication service and held that creation of telecom tower does not come under the meaning of telecommunication service. Hence, he confirmed the Assessing Officer’s order.
Against the above order assessee is in appeal before us.
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 engaged into providing infrastructure facility services. Learned counsel submitted that the assessee’s 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 assessee’s 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.
Learned Departmental Representative did not have any serious proposition to this proposition.
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. However the authorities below have considered the claim of the assessee under section 80IA(4) clause (ii) being telecommunication services.
3 M/s. Max Alert Systems Private Limited
In view of the aforesaid facts, in our considered opinion the matter needs to be remitted to the file of the Assessing Officer. The Assessing Officer is directed to consider the issue afresh in the light of our observations and the assessee’s submissions. Needless to add the assessee should be granted adequate opportunity of being heard.
In the result, appeal filed by the assessee stands allowed for statistical purpose. Order has been pronounced in the Court on 2.8.2019.