9911796707
TMI Blog2019 (2) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... IA. Relying on authoritative pronouncement of the Hon’ble jurisdictional High Court in the assessee’s own case [2014 (12) TMI 1331 - GUJARAT HIGH COURT] we are of the view that question referred to this Bench deserves to be answered in favour of the assessee, and against Revenue. It is pertinent to observe that the appeal has also been transferred to the Special Bench, therefore, we proceed to deal with the appeal on merits. On perusal of the record would indicate that only substantial issue involved in this appeal is, whether deduction under section 80IA(4)(ii) is available to the assessee or not. Considering the opinion of Special Bench coupled with ratio laid down by the Hon’ble High Court in assessee’s own case, we are of the view th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. It was submitted before the AO that in earlier years also such deduction was claimed by the assessee, it was disallowed by the AO. However, when dispute travelled to the Tribunal deduction was granted to the assessee. The ld.AO has observed that right from the Asstt.Years 1997-98 to 2001-02 such deduction was disallowed to the assessee, though ld.CIT(A) and ITAT has allowed the deduction to the assessee, but department has not accepted the order of the Tribunal and carried the matter before the Hon ble Gujarat High Court. The AO has not pointed any disparity of facts, rather he did not accept the claim of the assessee, because in earlier year, department went in appeal before the Hon ble High Court. Accordingly, the ld.AO disallowed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble President for constitution of the Special Bench. In this way, a Special Bench has been constituted and above question was formulated for adjudication. 4. Before us, the ld.counsel for the assessee at the outset contended that deduction under section 80IA was allowed to the assessee by the Tribunal right from the Asstt.Year 1997-98 upto 2007-08. Orders of the Tribunal have been challenged by the Revenue before the Hon ble High Court, and the Hon ble High Court has decided all these appeals vide order/judgment dated 16.12.2014. He has placed on record copy of the Hon ble High Court s decision rendered in Tax Appeal Nos.1098 of 2005 and others. The question formulated by the Hon ble High Court in assessee s own case is, whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices as per the definition u/s. 2(c) of the Telecommunication Tariff Order, 1999. From the reading of above clauses of the agreement, it is evident that the assessee is not providing the services as a PCO. From clause 24 of the agreement, it is evident that the STD/PCO can be provided by the assessee i.e. one of the customers of the assessee, who can run the STD/PCO and to such STD/PCO commission will be paid by the assessee. Similarly, it is clear that the services provided By the assessee are not only the network of trunking as mentioned by the Ld. CIT(A). AS per clause 3 of the agreement, the assessee is responsible for installation, networking operation and maintenance of EPBX equipments, user terminal equipments, connected cables ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present appeals in the affirmative i.e. in favour of the assessees and against the revenue. We hold that the Tribunal is right in law and on facts in holding that the assessees who are franchisees of BSNL and who have been permitted to install, maintain and operate, in-dialing PABX under franchisee to support the department, can be treated to have provided basic telephone services entitling them for deduction u/s 80IA. Consequently, the impugned orders passed by the Tribunal are confirmed. Tax Appeals are accordingly dismissed. 5. Hon ble jurisdictional High Court has adjudicated this issue in favour of the assessee, wherein it has been held that the assessee who are franchisees of BSNL and who have been permitted to install, m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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