Karnataka High Court
M/S Cyber Bazar (India) (P) Ltd vs The Asst Commr Of Income Tax (Circle Ii ... on 12 April, 2010
Bench: K.L.Manjunath, B.V.Nagarathna
A (ByE3%
IN THE HIGH COURT OF KARNATAKA AT
DATED THIS THE 12% DAY OF APRIL;_:'"2'{§«'1'Q --.j:K _
PREsE1§':{ _
THE HON-BLE MR.JUsTicE 7£{;I;fiM1K§i<IU}\iA'1'}i
THE HON"BLE MRS. JUsf1*:§:E B;vV.rJAGAI€~1§THNA
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BETWEEN: ' " V
M/s. cybcraazar (Iit1di9;)~f1_P)_Ltd,_ %
New knowffi asgiavweblélx Cdmtnunicaijens
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No.2, No1f£hi:P::-'grk ._
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Rep.&4By its
Aged abc>1.1t'v32 3fcars',«
Sgt: of Sr1.z%.,B.'IZ)atar
k %%%%% . . . APPELLANT
Counsel with Srimalkaha Rae,
, _ Appellant)
" AA ;'I'heV1§§.st.C0mmissi0ner cf Income«tax.,
' , _Gi_rcle 11(2), BANGALORE-1 . . .RESPONDEN'I'
(By Sri.M.V.Scshachah, Adv.
This l"i'A is filed U./3.260-A of IT Act, praying tn
allow the appeal and set aside. the order of the ITAT
bearing ITA NO.3I51/B/2004 dt.31.3.2005 in the
interest of justice and equity. %
2
THES APPEAL COMING ON FOR HEARING THIS
DAY, NAGARATHNA J, DELIVERED THE FOLLOWIN(__}_:_'
JUDGMENT
The assesses is challenging the ordejx" 1 Appellate Tribunal passed in ITA dt.3 1.3.2005 by raising the r§31o¢é:«i:~:g question of law:
3.) Whether on the facts anti-"in of the case, the pIw{3vig1cd..b3{ 'the apmllant by way of voice mail ai1c1;_'taEe.Ci):;1fc:reI1{:i1*1g services to corporate (:'£.IStOI}1€I*$_ xwould " 'ivithin the definition , <:.«1f -'-'te1eg:>o;m:1amr;icaticn Vécrvices" and, theref01't':,§-_'th§3'L'V' prnfit therefitam would be e1ig'ble=:'fo1f_éed'u:;ti011*«--U';'--s.8O"IMQA) of the Act?
2. '1x"i1e"fa(V:t:~3 filing of this appeal am that they is having a 1)11SiI1€S»-S of }3I*0vitiii1g'..,5roicg te1e-conferenci11g services to Accarding to the appellant, he has V mam the Bepartment of " ' '.fI'£:1§co:mfm.1;iI1icatioI1s for the purpose of praviding the VA servicas. That the appellant has made use sf ' and networking equipment and computer sfiftwam VA provide 11eIc-«conferencing services to big corporates and that under section 80~1A of the Incame Tax Act, a speciai pmvisian gving deduction to the assessaa in Jifl E"?
3 respect of any profits and gains derived by it from an undertaking or an enterprises that is carrying on a business is provided. According to the having tsle~commum'cation Wfdicifx' iis. Vi::0v1':'-.:2.i.ng " "
withm the scope of the sectio:f:.' entitled to the deduction i'i§._V:'£(?,.1f1}1SA'(3*f:_II*1('V: * L' For the assessment filed its return of income under section 80--IAj;of__ Officer requested for deduction and of the assesses, of the appellant under S€C.3fl.--{A AA ths Asi':. by his assessment order ' '~ .....
by the said order, an as was pIé'ferr¢d' Athe assessse before the Commisfioner of (Appeals), Baxwcre. The Commissioner 3139 upheld the disallowance made, by holding the service rendered by the appellant did not fali Within the defmition of the term telecommunication servica, by his arder dt.3{).9.2(}O4. (311 further appeal fig 6 rendered by the assesses comes within the scope of sec.80--IA(4)(ii) of the Act. In order to answer the said question, it is necessary te extract the relevant portions of the said section:
"80--IA. beductions in respect of profits from industrial undertakinp or enterpri.e:-as " -« .. in infrastructure development, e.:fc.-ii" ' (1) Where the goes total izicoisé of includes any "and gains an undertaking or any business referred is sigfi-'mtion'A(4) (such business, to as the eligibleiiixsiiiessj, fliers shall, in aocovdmice with to the provisions of this eseetjerr, in computing the total ~ _ ineenie" bf assessee, a deduction of an to hundred per cent of profits gains derived from such business for ten 'iiiiieonseeufive assessment years. " dmuction specified in sulysecfion (1)
3 may, at the option ef the assmsee, he claimed by him for any ten censeeutive assessment years eut of fifteen years beginnixig from the year in which the undertaking or the enterprise develops and begins to operate any 'mf'rasm.1<:tmf'e facility starts providing or telecemmunicatien :21 1%,, /' ?
service or develops an industrial park (or develops a speciai cconomic zone rcfcI'rr;éi~--,to in clause (iii) of sub-section (4) or . power or commences t1'ans1}3(.ie>}sioi'}- (- distribution of powcgj (or_- ~ u substantial rezmvationli T the existing 'EI'a1'vlSII1iSV4Si_Oii._OI' .di_(sti*it:11(i;i,oxa(V "
lines);
(Provided that" m'e assesses develops or, fr:>pc-ratcs " _maintains or develops, opc;rIcS- -, -. maintains any i11fi'3.st,ructu_rc»«faci1ity in; in clause (a) or (bi) or ¢§;auscV'(c)V( of'=the Explanation to_c_1at:Sc..(i), of S.ub--scc1;ion'(4), the provisions of thisV"s'1i.b+sej<;:tjoz1 V"s;h"a1i~.havc effect as if for t_I'iet5V;o_1V'(x'¥s, years", the Words, "twenty taxbstituted) (gm anything contained in sub» A. 'V (.1) oi"~v...$:11b-'section (2), the deduction in total income of an 1mdertak1ng' providing "V'teEecoi:13;uE:1;i}fica$;igsn services, specified in clause (ii) of stib-§$éctio:iV(f(_--'_}); shall be hundred mi' cent of the profits '(and of the eligible bnsiricss for the first five:
cgssccsmcfit years commencing at any fimc during the _ _ A as swcificd in sub--sect;ion (2) 31161 thereafter, ' per cent of such profits and gains for five V V ' ' - u " V ,aSscssme11t ycars.
(4) This section applies to---
XXXXXX appropriate to refer to the definition of telecommunication service as contained in sectio_I'1§'{k}._ of the Telecom Regulatory Authority of I11dia.--Aet, "
As the said Act directly deals and other such aflied matters, the referred to for the of' telecommunication "'t1_1e of section 80~IA(4)(i1) of mg '_def'1nition of te1eoommm1ioa§t§ox:1V'Veer\é'ficegs' fzéixxderfizev Act, reads as follows:
"SeetioI3.'VV2A('I4':}" means service of any maii, voice mail, data servieego aiidiiazé' video tex services, radio ' ipagjng 'V 'oell uler mobile telephone services) v'a'1'3;it:'ho i:g=f:m'a.£1e aéiléiole to users by means of any reception of sigls, eiglals, writing, or inteifigenee of any nature, by V _W:ire,""'radio, visual or other e1ee!:ro~ma@1etio means but " " 5 notviiiolude broadcasting services. .1?ro'§rided that the central government may notify ''««.other service to be teleeommmlieation service isneludirlg ~ ., "broad casting services. "
10. It is necessary to note that while the definition of telecommunication service under eeo.2(k} of Telmm Q 2, _W,,.»«:""
12. For the aformaid reasons, we think that the substantial questions of law, does not require to answered in this appeal
13. Accordll' E1)'. the matter is the Assessirxg officer by settirg aside all orflérsl}