Itxa/2608/2011 Of The Commissioner Of Income Tax -7 v. Reliance Communications And Infrastoructure Ltd

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2608 OF 2011 The Commissioner of Income Tax-7, Mumbai ..Appellant. V/s. M/s. Reliance Communications & Infrascture Ltd. ..Respondent. Mr. Abhay Ahuja for the appellant. Mr. Niraj Seth with B.G. Yewale i/b. Rajesh Shah & Co. for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATED : 15TH MARCH, 2013 P.C. :- 1.In this appeal by the revenue for the assessment year 2005-06, following questions of law have been raised for our consideration :- A.Whether in the facts and the circumstances of the case and in law, the Tribunal was correct in restricting the addition to Rs.16,34,200/- ignoring and deleting the addition of Rs.10,93,11,65,800/- ignoring that the rights of connectivity were granted and made available for use on 31/3/2005 and the sister concern i.e. Reliance Inforomm Ltd. (RIC) had paid and the assessee received the said sum as consideration for grant of exclusive indefeasible right of connectivity (IRC) in the network ? B.Whether on the facts and in the circumstances of the case and in law, the Tribunal was correct in restricting the addition to Rs.16,34,200/- and deleting the addition of Rs.10,93,11,65,800/- ignoring that in terms of the agreement between the Assessee and Reliance Infocom Ltd. there is no question of indefeasible right of connectiviting (IRC) fee on phase II dark fibre connectivity not accruing during the year ? 2.So far as question A is concerned, counsel for the parties state that the issue is covered in favour of the respondent-assessee and against the revenue by our order dated 22[nd] October, 2012 in Income Tax Appeal No.4727 of 2010 in the respondent-assessee's own case for assessment year 2004-05. In this view of the matter, we see no reason to entertain question A. 3.So far as question B is concerned, it is not disputed that the issue sought to be raised herein was not urged before the Tribunal. Therefore, the same does not arise out of the order of the Tribunal and hence cannot be entertained. In any event, even on merits there has been no change in the terms of the agreement which was under consideration for the earlier assessment year 2004-05. Counsel for the revenue seeks to rely upon the amendment made to Exhibit 'B' of the agreement with regard to phase II to urge that the order passed by the Tribunal for the assessment year 2004-05 will not apply for the subsequent assessment year. The amendment was only with respect to phase II and there is otherwise no change in the terms of the agreement between the parties. As the issue is covered by the order of the Tribunal for assessment year 2004-05 and appeal therefrom was also dismissed by this Court on 22[nd] October, 2012, we see no reason to entertain question B. 4.Accordingly, the appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)