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2018 (9) TMI 1889 - ITAT MUMBAIRectification of mistake u/s 254 - Claim of deduction u/s 80-IA(4)(ii) - nature of the business of the assessee - HELD THAT:- The claim of the assessee is based upon the meaning for description of internet service providers (ISP). The assessee also relied upon the meaning of the service interpreted by Wikipedia website. The internet services are generally by intermediaries by (a) acquiring the right to use of bandwidth, acquiring/setting up the necessary hardware/infrastructure and making the bandwith acquired as per point (a) to outsiders/ customers by using equipments as per point. In brief, the controversy has been decided by the AO as well as the CIT and even Hon’ble ITAT on the basis of said letter dated 25.11.2009 which nowhere leads correct definition of the nature of the business. The assessee has mentioned in its form no. 3CA and 3CD about the nature of business of internet service provider and network and support service. The assessee has charged the service tax from its client which nowhere falls within the ambit of trade. The assessee also issued TDS certificate to the applicant wherein the tax deducted at source u/s 194J of the Act on fees in profession of taken services to its customer which cannot be treated as trade of bandwidth. On appraisal of the documents on record and considering of the contention of the assessee, we are of the view that the nature of the business of the assessee has not been properly interpreted and it requires proper interpretation. Whether in the circumstances the issue is liable to be recalled or not? - If an order has been passed by the Tribunal on the basis of misconception and misapprehension, therefore, the order does not fall within the ambit of review so undoubtedly it can be recalled, in view of the provision of Section 254(2) of the Act. We also find support of law settled in the case of H. H. Maharaja Martant Singh Vs. CIT [1987 (10) TMI 383 - MADHYA PRADESH HIGH COURT] & SHAKUNTALA RAJESHWAR [1986 (3) TMI 74 - DELHI HIGH COURT] therefore, in view of the said circumstances, we recall the order dated 22.07.2017 vis-à-vis issue of claim of deduction u/s 80IA of the Act of deciding afresh in accordance with law. Miscellaneous application filed by the assessee is hereby allowed.
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