TMI Blog2023 (12) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... e into existence with respondent/assessee having acquired, in 2008, NLD and ILD Licenses - According to the Tribunal, in 2002-03, assessee had commenced its business by providing data transmission and internet services, which continued even after it acquired, in 2008, NLD and ILD licenses - HELD THAT:- We find that the Tribunal has noted that there was no material brought on record by the appellant/revenue to back its claim that a separate undertaking had been established to provide the NLD and ILD services offered by the respondent/assessee. There was also, according to the Tribunal, no case set up or established by the appellant/revenue there was reconstitution of the existing business.According to the Tribunal, in 2002-03, the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Mr Rajeev Mishra, Adv. RAJIV SHAKDHER, J. (ORAL): CM No.59071/2023 [Application filed on behalf of the appellant seeking condonation of delay of 440 days in re-filing the appeal] 1. This is an application filed by the appellant/revenue seeking condonation of delay in re-filing the appeal. 1.1 According to the appellant/revenue, there is a delay of 440 days in refiling the appeal. 2. Mr Ajay Vohra, learned senior counsel, who appears on behalf of the respondent/assessee, says that he would have no objection if the delay in refiling is condoned. 2.1 It is ordered accordingly. 3. The application is, accordingly, disposed of. ITA 626/2023 4. This appeal concerns Assessment Year (AY) 2011-12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Bhatia informs us that the appellant/revenue has preferred an appeal to the Supreme Court against the judgment of the coordinate bench in New Skies Satellite BV , which is pending adjudication. 11. Insofar as the this court is concerned, either way, no substantial question of law would arise, as, according to Mr Bhatia, the issue stands covered by the judgment rendered by the coordinate bench of this court in New Skies Satellite BV case. 12. As regards the first issue, the following broad facts are required to be noticed which are gleaned from the record. 12.1. The respondent/assessee was incorporated on 11.01.2002 with the main object of rendering telecommunication services. 12.2. To progress its main object, the respondent/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This section applies toxxx xxx xxx (ii) any undertaking which has started or starts providing telecommunication services, whether basic or cellular, including radio paging, domestic satellite service, network of trunking, broadband network and internet services on or after the 1st day of April, 1995, but on or before the 31st day of March, 2005. Explanation .- For the purpose of this clause, domestic satellite means a satellite owned and operated by an Indian company for providing telecommunication service . [Emphasis is ours] 14. A close perusal of the aforementioned provision would show that the main provision, i.e., Section 80IA, inter alia, applies to any undertaking which started or starts providing telecom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NLD and ILD licenses. 19.1. Mr Bhatia contended that new services were provided to private internet users and, therefore, could not be equated with the existing services provided by the respondent/assessee. 20. Mr Vohra, on the other hand, contended, that the expression which finds mention in Sub-Section (4) Clause (ii) of Section 80IA of the Act is undertaking and since the undertaking remained the same, merely because certain services were enhanced, the respondent/assessee could not be denied full play of the deductions which were being provided before the impugned assessment order was passed by the AO. 21. We have heard learned counsel for the parties and perused the record. 22. As pointed out hereinabove and correctly arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ementioned findings of fact returned by the Tribunal, it cannot be said that a new undertaking had come into existence after 31.03.2005. The respondent/assessee was and continued to provide internet services. The only difference was that it expanded its business footprint by it adding to it a niche consumer base. 25.1. The legislative policy of providing deduction under Section 80IA is to give leg-up to certain undertakings, which are capital intensive. The attempt of the AO to excise a portion of the benefit, in our opinion, cannot pass muster upon perusal of the plain language of Section 80IA(4)(ii) of the Act. 26. Thus, according to us, no interference is called for with the impugned order passed by the Tribunal. According to us, n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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