PR. COMMISSIONER OF INCOME TAX-5 vs. M/S ONMOBILE GLOBAL LTD

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY 2021 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY I.T.A. NO.296 OF 2016 BETWEEN: 1. PR. COMMISSIONER OF INCOME TAX-5

BMTC COMPLEX, KORMANGALA

BANGALORE-560001. 2. DY. COMMISSIONER OF INCOME TAX

CIRCLE-5(1)(2), BANGALORE. ... APPELLANTS (BY SRI. E.I. SANMATHI, ADV.,) AND: M/S. ONMOBILE GLOBAL LTD., TOWER 191/1C, 94/2 VEERSANDRA VILLAGE ATTIBELE HOBLI, ANEKAL TALUK ELECTRONIC CITY PHASE-I BANGALORE. ... RESPONDENT (BY SRI. K.R. VASUDEVAN, ADV.) - - - THIS I.T.A. IS FILED UNDER SEC. 260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 13.11.2015 PASSED IN ITA NO.987/BANG/2015 FOR THE ASSESSMENT YEAR 2009-10, PRAYING TO: (i) DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT.

2 (ii) SET ASIDE THE APPELLATE ORDER DATED 13-11-2015 PASSED BY THE ITAT, 'B' BENCH, BANGALORE IN APPEAL PROCEEDINGS NO ITA NO.987/BANG/2015 FOR ASSESSMENT YEAR 2009-10, AS SOUGHT FOR IN THIS APPEAL; AND TO GRANT SUCH OTHER RELIEF AS DEEMED FIT, IN THE INTEREST OF JUSTICE. THIS I.T.A. COMING ON FOR HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: JUDGMENT This appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act for short) has been preferred by the revenue. The subject matter of the appeal pertains to the Assessment year 2009-10. The appeal was admitted by a bench of this Court vide order dated 10.10.2017 on the following substantial questions of law: "(i) Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee is entitled for depreciation at 60% on certain electronics items like NMS CG Cards, Tax Cards, Switches etc by treating them as computers when the same has been rightly held by assessing authority as plant and machinery and as the assessee's business

3 was for providing telecom services and not IT enabled services and thereby restricted the depreciation claim to 15%? (ii) Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee is entitled for deduction under section 80JJA of the Act when same was rightly denied by assessing authority as assessee is not in the manufacture of any article or thing? (iii) Whether on the facts and in the circumstances of the case, the Tribunal is right in law in setting aside disallowance of section 10A claim when the assessee is engaged in providing telecom services which are not in the nature of IT enabled services? (iv) Whether on the facts and in the circumstances of the case, the Tribunal is right in holding that stamp duty payment as Revenue expenditure when the assessing authority treated stamp duty payment as capital in nature as against revenue expenditure claimed by assessee as the

4 assessee gets enduring benefit from making said payment?". 2. For the reasons assigned by us in ITA No.340/2014 passed today, the impugned order dated 13.11.2015 is hereby quashed insofar as it dismisses the appeal of the revenue to the extent of challenge of the claim of the assessee under Section 80JJAA of the Act is hereby quashed and the matter is remitted to the Tribunal to decide the claim of the assessee for deduction under Section 80JJAA of the Act afresh in accordance with law. Accordingly, the appeal is disposed of. Sd/- JUDGE Sd/- JUDGE RV