M/s. Mira Exim Ltd., New Delhi V. DCIT, New Delhi

CO 256/DEL/2014

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2955 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 12-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 22-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H K CHAUDHARY
• Assessee Lawyers: ANIL KUMAR CHOPRA; H C GARG
• Keywords: Business income; Business expenditure; Double taxation relief; Services rendered outside India; Deemed to accrue or arise in india; Retrospective amendment; Wholly owned subsidiary; Non-deduction of tax; Notional interest; Commercial expediency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER AND SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO.125/DEL/2014 ASSESSMENT YEAR 2009-10 DCIT, CIRCLE-6(1), ROOM NO.413, C.R. BUILDING I.P. ESTATE, NEW DELHI. VS. MIRA EXIM LTD. 523-24, WORLD TRADE CENTRE, BARAKHAMBA ROAD, NEW DELHI. PAN: AAACM 2066M (APPELLANT) (RESPONDENT) CO NO.256/DEL/2014 ASSESSMENT YEAR 2009-10 MIRA EXIM LTD. 523-24, WORLD TRADE CENTRE, BARAKHAMBA ROAD, NEW DELHI. PAN: AAACM 2066M VS. DCIT, CIRCLE-6(1), ROOM NO.413, C.R. BUILDING I.P. ESTATE, NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : S/SHRI H.K. CHAUDHARY CIT- DR AND RAJESH KUMAR, SR.D.R, ASSESSEE(S) BY : SHRI ANIL KUMAR CHOPRA, C.A. AND SHRI H.C. GARG, ADV. / DATE OF HEARING : 12/04/2017 / DATE OF PRONOUNCEMENT: 24/04/2017 ORDER PER B.P. JAIN, ACCOUNTANT MEMBER THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F LEARNED CIT(A)-IX, NEW DELHI, VIDE ORDER DATED 7.10.2013 FO R THE ASSESSMENT YEAR 2009-10. ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 2 2. THE ASSESSEE HAS ALSO FILED THE CROSS OBJECTION AGAINST THE REVENUES APPEAL BEING CO NO.256/DEL/2014 MENTIONED HEREINABOVE. THE GROUNDS OF APPEAL BY THE REVENUE ARE RAISED AS UNDER: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE & I N L AW , THE LD . CIT (A) ERRED IN DELETING THE DISALLOWANCE OF RS. 7,27 , 532/- MADE BY THE A .O . U/S 40(A) WITHOUT APPRECIATING THE FACT THAT THESE SERVICES CLEARLY COME UNDER THE NATURE OF 'MANAGERIAL/TECHNICAL SERVICES ' COVERED UNDER THE PROVISIONS OF EXPLANATION 2 OF SE CTION 9( 1)(VII)(B) OF THE INCOME-TAX ACT? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE & IN LAW , THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE FINANCE ACT 2010 HAS I NSERTED AN EXPLANATION TO THE SECTION 9 W . R . E . F. 01 . 06.1976 , 1961 , WHICH HAS CLARIFIED THAT EVEN I F THE NON-RESIDENT HAS NO BUSINESS CONNECTION IN INDIA OR HAS NOT RENDERED ANY SERVICE IN I NDIA THEN ALSO THE PAYMENTS RECEIVED DEEMED TO ACCRUE OR ARISE IN INDIA? 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE & IN LAW , THE LD. CIT (A) FAILED TO APPRECIATE THAT ARTICLE 12 OF THE DTAA OF INDIA WIT H GERMANY CLEARLY STATES THAT THE SERVICES OF THESE NATURE ARE TAXABLE IN INDIA IF THEY ARE CH ARGEABLE TO TAX AS PER THE LAWS OF INDIA? 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE & IN LAW , THE LD. CIT(A) ERRED I N DELETING THE DISALLOWANCE OF INTEREST PAYMENT OF 1 , 02 , 22 , 500/- , MADE BY THE A .O . ON ACCOUNT OF INTEREST FREE ADVANCE GIVEN TO THE DAUGHTER OF T HE MANAGING DIRECTOR OF ASSESSEE COMPANY , BY FOLLOWING THE JUDGEMENT OF HON'BLE DELHI HIGH CO URT IN CASE OF BHARTI TELEVENTURES 331 ITR 502 W I THOUT APPRECIATING THE FACT THAT THE ASSESSEE FAILE D TO PROVE ANY COMMERCIAL EXPEDIENCY AND FAI L ED TO SUBSTANTIATE ANY BUSINESS PURPOSE OF ASSESSEE FOR ADVANCING THESE INTEREST FREE LOAN/ADVANCE TO ITS S ISTER CONCERN? 5.WHETHE R ON THE FACTS AND CIRCUMSTANCES OF THE CASE & IN LAW , THE LD . CIT (A) ERRED IN DELETING THE DISALLOWANCE OF INTEREST PAYMENT OF 1 , 02 , 22 , 500 / - , MADE BY THE A . D . ON ACCOUNT OF INTEREST FREE ADVANCE GIVEN TO THAT THE DAUGHTER OF THE MANAG I NG D I RECTOR OF ASSESSEE COMPANY , BY NOT CONSIDERING THE CASE OF CIT V . ABH I SHEK INDUSTRIES L TD . 286 ITR 1 IN WHICH THE HON ' BLE PUNJAB AND HARYANA HIGH COURT HAS HELD THAT THE ONUS OF ESTABLISHING THE NEXUS BETWEEN THE I NTEREST FREE FUNDS AND ADVANCES I S ON THE ASSESSEE AND RECEIPTS FROM ALL SOURCES GO I N A COMMON KITTY? 6 . THAT THE ORDER OF THE LD . CIT(A) IS ERRONEOUS AND IS NOT TENAB L E ON FACTS AND I N LAW . 7 . THAT THE GROUNDS OF APPEAL ARE WITHOUT PRE J UD I CE TO EACH OTH E R . 3. THE CROSS OBJECTION OF THE ASSESSEE IS REPRODUCE D HERIENBELOW: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) {LD. CIT ( A )} HAS ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 3 ER RED I N SUSTA I NING THE DISALLOWANCE ULS 40 ( A)(I) AMOUNTING TO RS 12 , 49 , 4 74 - BE I NG PAYMENT MADE TO M I S HUNTSWOOD MARKETING L I MITED , U . K FOR DESIGNING SERVICES BY CONSIDE R ING THE SAME I N THE NATURE OF FEE FOR TECHNICAL SERVICES (' FTS '). THE LD . CIT ( A) HAS FAILED TO APPREC I ATE THAT THE ABOVE SERVICES A R E IN THE NATURE OF BUSINESS INCOME OF THE PAYEE . SERVICES WE R E RENDERED OU T S IDE INDIA FOR WHICH PAYMENTS WE R E MADE OUTS I DE IND I A AND ACCO R D IN G L Y , AS PER THE PROVISIONS OF ARTICLE 7 OF THE DOUB L E TAXAT I ON AVO I DANCE AQ R EEMENT BETWEEN INDIA AND U . K , SUCH CHARGES ARE NOT TAXABLE I N IND I A I N THE ABSENCE OF ANY PERMANENT ESTABLIS H MENT IN INDIA . EVEN OTHERWISE ALSO , THE ABOVE SERVICES CANNOT BE CONSIDERED TO BE FTS U NDER ARTICLE 13(5) OF THE DTAA WITH UK AS NO TECH NO LOGY IS INVOLVED IN RENDERING SUCH SERVICES AND MOREOVER NO TECHNI C AL KNOWLEDGE EXPERIENCE, SKILL OR KNOW - HOW WAS MADE AVAILA B LE TO TH E PAYER ASSESSEE. 4. AS REGARDS GROUNDS NO.1, 2 AND 3 OF THE REVENUE AND GROUNDS IN THE CROSS OBJECTION, THE BRIEF FACTS OF THE CASE AR E AS PER THE ORDER OF THE AO AT PAGES 3 TO 6 ARE REPRODUCED BELOW: DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A SSESSEE FURNISHED DETAILS IN RESPECT OF PAYMENTS IN FOREIGN CURRENCY VIDE REP LY DATED 20.10.2011. FROM THE SAME, IT IS SEEN THAT THE ASSESSEE HAS MADE PAY MENTS IN FOREIGN CURRENCY TO FOLLOWING PARTIES ASSIGNED UNDER THE HEAD LEGAL & PROFESSIONAL EXPENSES. HO W E V ER TH E D ETAI LS F URNI S HED REFLECT TH A T PA YM ENT S ARE I N RESPECT OF PROFES S ION AL & L EGA L SERV ICES, CONSULT A NC Y SER V ICES A S W ELL A S DESIGNIN G S ER V IC E S . TH E D E T AI LS A R E A S B ELO W : NAME OF THE PARTY NATURE OF TR A NSACTION AMOUNT(RS.) NOT KNOWN PRO F ESSION A L FE ES 8552 MACERA & J ARZ Y NA LLP PROFESSION A L FEE FOR LEG A L SER V ICE S 72680 CANADA MARTIN ZAEPFEL , CONSULTANC Y CHARGES 646300 GERMAN Y . HUNTSWOOD MARKETING LTD., LONDON CONSULTANCY CHARGES FOR DESIGN 1249474 SER V ICES TOTAL 19 , 77,006 THE ASSESSEE WAS ASKED TO EXPLAIN WHETHER TAX HAS B EEN DEDUCTED ON ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 4 THE ABOVE PAYMENTS. THE ASSESSEE VIDE REPLY DATED 2 0.10.2011 STATED THAT THE PAYMENTS IN FOREIGN CURRENCY ARE T O WARDS SER V ICES RELATING TO S ERVICES OUTSIDE INDIA AND THE PAYMENTS HAVE BEEN MADE OUTSI DE INDIA. IT WAS FURTHER STATED THAT SERVICES INVOL V ED BEING BUSINESS PROFITS OF NON-RESIDENTS ARE TAXABLE IN THEIR HOME COUNTRIES AND THEREFORE TDS B EING NOT APPLICABLE THEREON, NO TDS HAS BEEN DEDUCTED . IN ORDER TO EXAMINE THE NATURE OF SERVICES RENDERED BY THESE FOREIGN PARTIES, THE ASSESSEE VIDE ORDER SHEET ENTRY DATED 23.12.2011 WAS REQUIRED TO GIVE A DETAILED NOTE ON THESE SERVIC E S . AND ALSO ASKED TO EXPLAIN W HY THE PAYMENTS AGAINST THEM BE NOT TREATED AS FEE FOR PRO FESSIONAL SERVICES AND FEE FOR TECHNICAL SERVICES ON WHICH TAX SHOULD HAVE BEE N DEDUCTED. THE ASSESSEE FILED ITS REPLY DATED 26.12.2011, WHICH IS REPRODUC ED BELOW:- ' R E GARDING LEGAL AND PROFESSIONAL E X PENSES IN FOR E IGN C URRE N C Y , IT IS SUBMITTED THAT THE EXPENSES RELATE TO PROFESSIONAL AND CONSULTANCY SERVICES R E CEIVED FROM PROFESSIONALS AND CONSULTANTS ABROAD IN TH E C OURSE OF TH E IR PROF E S S ION OUTSID E INDIA. THE S E R V ICE S WER E R E C E IV E D OUTSIDE INDIA IN C ONN EC TION W ITH E XPORT PROMOTION AND TRADE MARK / PATENT MATT E RS. THE S E RVI CE S W ERE REND E R E D OUTSIDE INDIA. TH E SAM E DO E S NOT INVOLVE A NY FEE FOR T E CHNICAL S E RVICES . THE PA YEE HAS RENDERED THE S E RVI CES IN THE C OURSE OF TH E IR BUSINES S AND PROFESSION OUTSIDE INDI A AND DO NOT HAV E A N Y PE IN INDIA . AS SUCH NO TDS IS APPLICABL E. PA Y M E NT OF RS . 12 .49 LACS TO HUNTS W OOD MARK E TIN G LTD . D E BITED UND E R TH E H E AD LEGAL AND PROF E SSIONAL CHARGES RELATES TO TH E F EE FOR DESIGNING OF PRODU C T S D E SIGNED OUTSIDE INDIA IN TH E COURSE OF THEIR BU S INESS OUTS I DE INDIA. THE SAME DO NOT INVOLVE TRANSFER OF ANY TECHNOLOGY AND HENCE IS NOT FTS. THE PARTY DOES NOT HAVE ANY PE IN INDIA. AS SUCH NO TDS IS APPLICABLE. T HE REP L Y OF T HE A SSESSEE H AS BEEN EXAMINED. THE CONTENT I ONS RAI S E D THERE IN ARE NOT APP LIC A BLE. FR OM TH E C H ART A B OVE I T IS SEEN T H AT RS . 8, 5 52 / - ON ACCOU NT OF PR O FESSI ONAL F E E S H AV E B EEN G I VE N TO A PART Y W H OSE N AME A ND DE TA ILS H AVE N O T B EE N FURNISH E D. IN TH E A B SE N CE OF T HE SA M E THE N ATUR E OF SE RV ICES R E N DE RED C A NNOT B E E X AMIN E D . H EN CE TH E A M O U N T O F R S . 8,5 5 2/ - IS A D D E D BACK TO TH E INCOME O F THE ASSES SEE FO R WA NT O F VER I FI CATION AND FO R NON DE DU C T I ON OF T AX. REGARDIN G PAYMENT OF RS . 7 2, 6 8 0/- TO M/ S . M A C ERA & J A RZ Y N A LLP , C ANADA , TH E A SSESSEE HAS C LAIMED TH A T THE SAME ARE IN RESPECT OF PROF ES SIONAL FE E FOR LEG A L SER V ICES. HO W EVER TH E A SSESSEE HA S NOT GIV EN THE DETAILS OF PROFESSIONAL SER V ICES SO RENDERED B Y TH E FOREIGN PA R T Y. THE SER V IC E S HAVE BEEN RENDERED TO A LEGAL ENTITY HAVING THE STATUS O F A ' COMPANY . ' ARTI C LE 14 OF THE DOUBLE TAXATION A V OIDANCE AGREEMENT BET W E E N INDIA AND CANADA DEALS W ITH ' INDEPENDENT PERSONAL SER V ICES' W HICH S AYS THAT PROFESSIONAL SER V ICES RENDERED B Y AN INDIVIDUAL OR A FIRM W ILL B E TA X ED IN CANADA. HO W E V ER I F SUCH SER V ICES ARE R ENDE R ED BY A ' COMP A N Y', THE P AY MENTS ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 5 AGAINST THE SAME A RE LIABLE TO BE TA X ED IN INDIA . SINCE TH E PAYMENT H A S BEEN MADE TO A COMPANY , ASSESSEE SHOULD H AV E DEDUCTED TA X ON THIS PAYMENT U / S. 195 OF THE ACT . SINC E THE ASSESSEE HAS DEFAULTED IN DEDU CT ING T A X, THE SAME IS DISALLO W ED U / S 40(A) ( IA) OF THE LT . ACT . IT IS F URTHER SEEN THAT THE ASSE S SEE HAS PAID CON S ULTANCY CHARGES OF RS.6 , 4 6 ,300/- TO MARTIN ZAEPFEL, GERMANY . FROM T H E B ILL FIL E D I T IS SEEN T H AT THE SAME HAVE BEEN PAID AS CONSUL T ANCY CHARGES FOR A RR A NGMG BUS I NESS FOR MIRA EXIM LTD. CONSULTANCY CHARGES ARE SQUAREL Y CO V ERED UNDER THE DEFINITION OF ' TECHNICAL SER V ICES' IN ARTI C LE 12 OF TH E DT AA BETWE E N INDIA AND GERMANY , AND ARE ALSO LIABLE TO BE TAXED UNDER THE DTAA. ACC ORDINGLY, THE SAME ARE ADDED BACK U/S.40(A)(IA) OF THE ACT FO R NON-DEDUCTION OF TAX U / S. 195 OF THE ACT . FURTHER , THE ASSES S EE HAS PAID CONSULTANC Y AND DESIGNING CHARGES OF RS . L2 , 49 , 474 / - TO HUNT SW OOD MARKETING LTD. , LONDON , FOR RENDERING CONSULTANC Y CHARGE S TO W ARDS THE DESI G N SERVICES PRO V IDED DURING THE PERIOD . THE RELE V ANT SERVICES ARE SQUARELY COVERED UNDER ARTI C LE 13 OF THE DT AA BETWEEN INDIA AND UNITED KINGDOM AND ARE TO BE TA X ED UNDER THE SAID DT AA. SINCE THE ASSESS E E HAS DEFAULTED IN DEDUCTIN G TA X U/S. 195 O F THE ACT ON THESE PA Y MENTS , RS.1 2, 49 , 474 / - IS BEING DISALLOWED U / S 40(A)(IA) OF THE ACT AND ADDED BACK TO TH E INCOME OF T HE ASSESSEE . LASTLY THE ASSESSEES CONTENTIONS THAT THE SERVICES HAVE BEEN RENDERED OUTSIDE INDIA ARE OF NO HELP IN VIEW OF THE AMENDED PROVISI ONS OF SECTION 9(2) OF THE IT ACT, WHEREIN EXPLANATION UNDER SUB-SECTION 2 HAS BE EN AMENDED WITH RETROSPECTIVE EFFECT FROM 01.06.1976. THE RELEVANT EXPLANATION HAS CLARIFIED THAT THE INCOME OF THE NON-RESIDENT FROM FEE FOR TE CHNICAL SERVICES SHALL BE DEEMED TO ACCRUE OR ARISE IN INDIA WHETHER OR NOT T HE NON-RESIDENT IS RESIDING IN INDIA OR IT HAS RENDERED SERVICES IN INDIA. IN V IEW OF THIS AMENDMENT FEE FOR TECHNICAL SERVICES ARE LIABLE TO BE TAXED IN INDIA AS LONG AS THEY ARE UTILIZED IN INDIA. IN VIEW OF THE ABOVE, AN ADDITION OF RS . L9 , 77 , 006/- ( 8552 + 72680 + 64630 . 0 + 1249474) IS BEING MADE FOR NON - DEDUCTION OF TAX. . . ( A DDITION OFRS.19 , 7 7, 006 /-) 5. LEARNED CIT(A) IN FACT CONFIRMED THE ADDITIONS O F RS.12,49,474/- AND DELETED THE ADDITIONS OF RS.7,27,532/- FOR THE REAS ONS RECORDED IN HIS ORDER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE AO NOTED THAT DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, THE ASSESSEE FURNISHED DETAILS IN RESPECT OF PAYMENTS IN FOREIGN CURRENCY VIDE REPLY DATED ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 6 20.10.2011. FROM THE SAME, IT WAS OBSERVED THAT THE ASSESSEE HAS MADE PAYMENTS IN FOREIGN CURRENCY TO FOLLOWING PARTIES A SSIGNED UNDER THE HEAD LEGAL & PROFESSIONAL EXPENSES. NAME OF THE PARTY NATURE OF TRANSACTION AMOUNT (RS. ) NOT KNOWN PROFESSIONAL FEES 8,552/- MACERA & JARZYNA LLP CANADA PROFESSIONAL FEE FOR LEGAL SERVICES 72,880/- MARTIN ZAEPFEL, GERMANY CONSULTANCY CHARGES 6,46,300/- HUNTSWOOD MARKETING LTD., LONDON CONSULTANCY CHARGES FOR DESIGN SERVICES 12,49,474/- TOTAL 19,77,006/- 6.1 THE ASSESSEE WAS ASKED TO EXPLAIN WHETHER TAX HAS BEEN DEDUCTED ON THE ABOVE PAYMENTS. THE ASSESSEE VIDE LETTER DATED 20 . 10.2011 STATED THAT THE PAYMENTS IN FOREIGN CURRENCY ARE TOWARDS SERVICES R ELATING TO SERVICES OUTSIDE INDIA AND THE PAYMENTS HAVE BEEN MADE OUTSI DE INDIA. IT WAS FURTHER STATED THAT SERVICES INVOLVED BEING BUSINESS PROFIT S OF NON-RESIDENTS ARE TAXABLE IN THEIR HOME COUNTRIES AND THEREFORE TDS B EING NOT APPLICABLE THEREON, NO TDS HAS BEEN DEDUCTED. THE AO REJECTED THE EXPLANATION OF THE ASSESSEE . ON THE BASIS OF DETAILED DISCUSSION IN THE ASSESSME NT ORDER, THE AO MADE THE DISALLOWANCES. FOR RS.8,552/- THE AO HELD THAT NO NAMES OF THE PAYEE IS GIVEN HENCE NOT ALLOWABLE. REGARDING PAYME NT TO MACERA & JAZYNA LLP , RS.72,680/ -, THE AO HELD THAT IT IS A COMPANY AND AS PER DTAA (DOUBLE TAXATION AVOIDANCE AGREEMENT) BETWEEN INDIA AND CANADA, PROFESSIONAL FEE PAID FOR LEGAL SERVICES TO INDIVID UAL AND FIRM IS NOT TAXABLE . IN THIS CASE , PAYEE IS A COMPANY HENCE TDS SHOULD BE MADE. ON CON SULTANCY CHARGES PAID TO MARTIN ZAEFEL , GERMANY , RS.6 , 46 , 300/ - , THE AO HELD THAT SUCH CHARGES ARE INCLUDED IN TECHNICAL SERVICES A S DEFINED IN DTTA ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 7 BETWEEN INDIA AND GERMANY WHICH IS TAXABLE AND TDS I S APPLICABLE. SIMILARLY, AMOUNT PAID TO HUNTSWOOD MARKETING LTD. IS ALSO COVERED UNDER DTAA AND TDS IS APPLICABLE . BASICALLY , AO HAS TREATED ALL THE PAYMENTS AS FTS AND HENCE TDS IS APPLICABLE . THE AO ALSO MENTIONED S.9(2) OF THE ACT. 6.2 AS REGARD RS.8,552/- PAID TO ABACUS MANAGEMENT SOLUTIONS A PROFESSIONAL CONSULTANCY FIRM AT MAURITIUS FOR ADVI CE FROM MAURITIUS RELATING TO WHOLLY OWNED SUBSIDIARY, BEING BUSINESS INCOME OF NON- RESIDENT , AS PER DTAA, IT IS TAXABLE IN MAURITIUS NOT IN INDI A . DISALLOWANCE OF RS.72,680/- PAID TO M/S . MACERA & JARZYNA HAS BEEN MADE ON THE GROUND THAT THE PAYEE BEING A COMPANY ARTICLE 1 4 OF THE DTAA BETWEEN INDIA AND CANADA IS NOT APPLICABLE AND HENC E TDS WAS DEDUCTIBLE. AS BORNE OUT FROM THE NAME OF THE NONRESIDENT PAYEE , THE PAYEE IS AN LLP AND NOT A COMPANY. THE PAYEE IS A FIRM OF BARRISTER S AND SOLICITORS WHICH PROVIDE PATENT & TRADE MARK SERVICES . THE SERVICES BEING IN RESPECT OF PROFESSIONAL SERVICES FROM LAWYERS, ARTICLE-14 OF T HE DTAA WITH CANADA WILL APPLY. THE SERVICES WERE RENDERED OUTSIDE INDI A AND THE PAYMENTS WERE ALSO RECEIVED OUTSIDE INDIA. PAYEE HAS NO FIXED PLA CE OF BUSINESS OR PE IN INDIA. THE PAYEE IS A LLP I . E. LIMITED LIABILITY PARTNERSHIP ALSO CALLED FIRM. THE PAYEE IS NOT A COMPANY. BASIS OF DISALLOW ANCE BY AO IS THAT THE PAYEE IS A COMPANY . AS PAYEE IS NOT A COMPANY BUT A FIRM, AS PER A . O. HERSELF, THE PAYMENT IS COVERED UNDER ARTICLE 14 AS INDEPENDENT PERSONAL SERVICES IN ACCORDANCE WITH WHICH THEY ARE ONLY TO BE TAXED IN CANADA. EVEN IF THE PAYMENTS ARE CONSIDERED UNDER BUSINESS PROFITS (ARTICLE 7 OF DTAA) , THE SUBJECT PAYMENT IS NOT LIABLE TO TDS AS THE PAYEE HAS NO PE IN INDIA. ERRONEOUS DISALLOWANCE HAS BEEN MADE BY WRON GLY INVOKING SECTION ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 8 195 AND SECTION 40(A)(IA). _ 6.3 AS REGARDS PAYMENT OF RS . 6 , 46 , 300/- TO MARTIN ZAEPFEL , GERMANY , THE ASSESSEE SUBMITTED THAT THE MARKETING SERVICES INVO LVED CANNOT BE FTS EITHER UNDER THE ACT OR UNDER THE DTAA BECAUSE NO M ANAGERIAL OR TECHNICAL CONSULTANCY SERVICES WERE PROVIDED BY THE FOREIGN P AYEE. SERVICES FOR ARRANGING BUSINESS MEET I NGS WITH I MPORTERS OUTSIDE INDIA DO NOT INVOLVE ANY MANAGEMENT , TECHNICAL OR CONSULTANCY SERV I CE WHICH MAY BE IN THE NATURE OF FTS. IT IS EVIDENT THAT FOR A PARTICULAR STREAM OF INCOME TO BE CHARACTERIZED AS 'FEES FOR TECHNICAL SERVICES ', IT IS NECESSARY THAT SOME SORT OF 'MANAGERIAL', 'TECHNICAL' OR 'CONSULTANCY' SERVICES SHOULD HAVE BEEN RENDERED IN CONSIDERATION. THE TERMS 'MANAGERIAL', 'TECHNICA L' OR ' CONSULTANCY' DO NOT FIND DEFINITION IN THE INCOME-TAX ACT , 1961 AND IT IS A SETTLED LAW THAT THEY NEED TO BE INTERPRETED BASED ON THEIR UNDERSTANDING IN COMMON PARLANCE MENTIONED BELOW : 'MANAGERIAL: MANAGEMENT IS THE ORGANIZATION AND COO RDINATION OF THE ACTIVITIES OF A BUSINESS IN ORDER TO ACHIEVE DEFINED OBJECTIVES. IT CONSISTS OF FUNCTIONS CREATING CORPORATE POLICIES AND ORGANIZING , PLANNING , CONTROLLING AND DIRECTION; AN ORGANIZATION ' S RESOURCES . THIS IS CLEARLY NOT SO IN THIS CASE. PAYEE IS PURE INDEPENDENT CONSULTANT NOT INVOLVED IN MANAGEMENT OF THE COMPANY AND WITH NO POWERS TO BIND OR DIRECT THE COMPANY . ' TECHNICAL : IN THE CASE OF SKYCELL COMMUNICATIONS LTD. VS. DCIT (251 ITR 53 (MADRAS), THE HON'BLE HIGH COURT HAS HE LD THAT THE POPULAR MEANING ASSOCIATED WITH THE WORD 'TECHNICAL ' IS ' INVOLVING OR CONCERNING APPLIED AND INDUSTRIAL SCIENCE'. CONSULTANCY : CONSULTANCY IS GENERALLY UNDERSTOOD TO MEAN ADVISOR Y SERVICES FURTHER, IT MAY BE FAIR TO STATE THAT NOT ALL KIND OF ADVISORY COULD ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 9 QUALIFY AS TECHNICAL SERVICES . FOR ANY CONSULTANCY TO BE TREATED AS TECHNICAL SERVICES , IT WOULD BE NECESSARY THAT A TECHNICAL ELEMENT IS I NVOLVED IN SUCH ADVISORY. THUS, THE CONSULTANCY SHOULD BE RENDERED BY SOMEONE WHO HAS SPECIAL SKILLS AND EXPERTISE IN RENDERING SUCH ADVI SORY . THE PAYEE IS NOT RENDERING ANY TECHNICAL SERVICES BUT ARRANGING ONLY BUSINESS MEETINGS WITH FOREIGN BUYERS .' FOR THE INTERPRETATION GIVEN ABOVE , THE ASSESSEE RELIED ON THE DECISION OF HON'BLE DELHI TRIBUNAL IN THE CASE OF ADIDAS SOURCI NG LIMITED VS. ADIT (ITA NO. 5300 / DEL/2010) . 6.4 THE ASSESSEE FURTHER SUBMITTED THAT THE SERVIC ES INVOLVED WERE RENDERED OUTSIDE INDIA IN THE COURSE OF BUSINESS OF THE PAYEE FOR WHICH THE PAYMENTS WERE MADE OUTSIDE INDIA. NO TECHNOLOGY IS INVOLVED IN THE SAID BUSINESS SUPPORT SERVICES AND MOREOVER NO TECHNICAL KNOWLEDGE OR KNOWHOW WAS MADE AVAILABLE TO THE ASSE SSEE. SERVICES BEING RENDERED IN THE COURSE OF BUSINESS OF THE PAYEE IN ITS HOME COUNTRY ARE IN THE NATURE OF BUSINESS PROFIT COVERED UNDER ARTICLE 7 OF THE DTAA AND THERE BEING NO PE IN INDIA OF THE PAYEE , THE SUBJECT PAYMENTS ARE NOT TAXABLE IN INDIA. THE PAYMENT INVOLVED RELATES TO SERVICES PROVIDED BY THE PAYEE FOR ARRANGING BUSINESS MEETINGS OUTSIDE INDIA WITH FORE IGN BUYERS WITH THE ASSESSEE. THE SERVICES TOWARDS ARRANGING BUSINESS M EETINGS WITH FOREIGN BUYERS ARE ONLY MARKETING SERVICES LIKE SERVICES PR OVIDED BY FOREIGN AGENTS FOR PROCURING EXPORT ORDERS FOR WHICH EXPORT COMMIS SION OR RETAINER IS PAID. THE PAYMENTS INVOLVED ARE PURELY BUSINESS PROFITS C OVERED UNDER ARTICLE-7 OF THE DTAA WITH GERMANY. THE ASSESSEE PLACED RELIA NCE ON JUDICIAL ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 10 PRONOUNCEMENT AS BELOW : - 'IN THE CASE OF CIT VS. TOSHOKA LTD. 125 ITR 525 (S C) AND SPAHI PROJECTS P. LTD . , IN RE 315 ITR 374 (AAR) , IT HAS BEEN HELD THAT AMOUNT OF COMMISSION EARNED BY NONRESIDENT FOREIGN PAYEES FOR RENDERING SERVICE OUTSIDE INDIA IN CONNECTION WITH PROCURING EXPORT ORDERS COULD NOT BE DEEMED TO BE INCOME ARISING IN INDIA.' IN THE CASE OF CUSHMAN & WAKEFIELD (2008) 305 ITR 208, IT WAS HELD THAT THERE WAS NO EXPERTISE OR KNOW-HOW WHICH WAS M ADE AVAILABLE TO CWI BY REASON OF RENDERING SERVICE OF A MANAGERIAL , TECHNICAL OR CONSULTANCY NATURE. SOME SORT OF DURABILITY OR PERMANENCY OF RE SULT OF RENDERING OF SERVICES WAS ENVISAGED. THE REFERRAL FEE PAID BY TH E INDIAN COMPANY WAS NOT 'FEE FOR TECHNICAL SERVICES ' UNDER SECTION 9(1)(VII) AS WELL AS ARTICLE 12(4)(B) OF THE DTAA. THE ASSESSEE ARGUED THAT THE PAYMENT I S MADE TO AN INDIVIDUAL . THUS IF NOT COVERED BY ARTICLE 7 THEN WITHOUT PREJU DICE, PAYMENT IS AGAINST I NDEPENDENT PERSONAL SERVICE COVERED BY ARTICLE 14 O F DT AA WITH GERMANY IN ACCORDANCE WITH WHICH INCOME DERIVE D BY AN INDIVIDUAL FROM INDEPENDENT ACTIVITIES IS ONLY LIABLE FOR TAX IN GERMANY. RELIANCE IS PLACED ON THE RULING OF AAR IN THE CASE OF DIETER EBERHARD GUSTAV V. CIT, 235 ITR 0698 WHEREIN THE SERVICES RENDERED BY THE APPLICANT AS AN ENGINEER BY WAY OF TECHNICAL AND MARKETING CONSULTA NCY SERV I CES WERE HELD TO BE C OVERED UNDER ARTICLE-14 OF THE DTAA BETWEEN INDIA AND GERMANY. IN THIS CASE IT WAS HELD THAT THE EXPRESSION 'PROFESSI ONAL SERVICES' IN ARTICLE 14 OF THE AGREEMENT FOR AVOIDANCE OF DOUBLE TAXATION B ETWEEN GERMANY AND IND I A IS WIDE ENOUGH TO I NCLUDE SERVICES, IF ANY, RENDERED BY THE APPLICANT AS AN ENGINEER AND MARKETING CONSULTANCY SERVICES REND ERED BY THE APPLICANT WERE IN THE NATURE OF PROFESSIONAL SERVICES FALLING UNDER ARTICLE 14 OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA A ND THE FEDERAL REPUBLIC OF GERMANY . THE CONDITIONS MENTIONED IN THE SAID ARTICLE WERE CLEARLY SATISFIED, AS THERE WAS NO PERMANENT ESTABL ISHMENT IN INDIA IN THE ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 11 FACTS AND CIRCUMSTANCES OF THE CASE. THE PROFESSION AL FEES AND FEE FOR INDEPENDENT PERSONAL SERV I CES RECEIVABLE BY THE APPLICANT WERE NOT TAXABLE IN INDIA. WHERE AN INDIVIDUAL (WHO IS NOT A SALARIE D EMPLOYEE) RENDERS INDEPENDENT, PERSONAL SERVICES IN THE FOREIGN STATE , THEN SUCH INDEPENDENT PERSONAL SERVICES ARE COVERED BY ARTICLE-14 WHEREBY THEY WOULD ONLY BE TAXABLE IN THE FOREIGN STATE WHERE THE INDEPENDENT INDIVIDUAL IS RESIDENT . SO IN THIS CASE , THE PAYEE WHO AN INDIVIDUAL IS RENDERING SUCH PROFE SSIONAL OR INDEPENDENT PERSONAL SERVICES IS ONLY TAXABLE UNDER ARTICLE-14 IN GERMANY WHERE HE IS RESIDENT . THE PAYMENT HAS BEEN MADE TO FOREIGN PAYEE ABROAD FOR THE SERVICES RENDERED OUTSIDE INDIA. SINCE INCO ME ITSELF WAS NOT CHARGEABLE TO TAX IN INDIA , THEREFORE, THERE WAS NO LIABILITY OF THE ASSESSEE T O DEDUCT TAX U/S 195(1) OF THE I . T . ACT AND HENCE SECTION 40(A)(IA) IS NOT APPLICABLE. THE ASSESSEE THUS GET RELIEF OF RS.7,27,532/- 6.5 ON PA Y MENT OF RS . 12 , 49 , 474 TO HUNTSWOOD MARKETING LTD., LONDON THE ASSESSEE SUBMITTED THAT THIS IS A PAYMENT FOR C ONSULTANCY CHARGES TOWARDS DESIGNING SERVICES PROVIDED TO THE ASSESSEE OUTSIDE INDIA THE CONSULTANCY SERVICES INVOLVED WERE IN RELATION TO I NFORMATION CONCERNING DESIGNS AND PATTERNS OF READYMADE GARMENTS AVAILABL E IN THE FORE I GN MARKET . MANAGERIAL OR CONSU L TANCY OR TECHNICAL SERVICES REFERRED UNDER FTS INVO LVE PROVISION OF EXPERT OPINION BASED ON IND I VIDUAL TECHNICAL OR PROFESSIONAL KNOWLEDGE. SUCH SERVICES CANNOT BE FTS EITHER UNDER THE ACT OR UNDER THE DTAA BECAUSE NO TECHN I CAL OR MANAGERIAL OR CONSULTANCY SERVICES WERE PROVIDED BY THE FOREIGN PAYEE. HOWEVER, THE NATURE OF PAYMENT MADE TO HUNTSWOOD MARKETING LTD. DOES NOT QUALIFY TO BE EXE MPTED UNDER THE CATEGORY OF SERVICES UNDER DTAA. IN THIS CASE, THE FOREIGN PAYEE IS PROVIDING DESIGNING SERVICES WHICH IS NOTHING BUT T ECHNICAL SERVICES AS DEFINED UNDER DTAA BETWEEN INDIA AND UK. THUS, THE ADDITION OF ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 12 RS.12,49,474/- HAS RIGHTLY BEEN CONFIRMED BY THE CI T(A). 7. ACCORDINGLY, WE FIND NO INFIRMITY IN THE ORDER O F LEARNED CIT(A) WHO HAS PASSED A VERY REASONED ORDER AND ACCORDINGLY AL L THE GROUNDS OF THE REVENUE AS WELL AS THE GROUNDS RAISED IN THE CROSS OBJECTION BY THE ASSESSEE ARE DISMISSED. 8. AS REGARDS GROUND NO.4 AND 5, THE BRIEF FACTS OF THE CASE ARE THAT THE YEAR ASSESSEE COMPANY ADVANCED RS.7 , 05 ,00,000/ - TO MRS . MIRA JAIN AGAINST THE PROPOSED PURCHASE OF PROPERTY AT C -11 , ANAND NIKETAN , NEW DELHI , OWNED BY MRS . MIRA JA I N FOR THE PURPOSE OF GUEST HOUSE USE OF THE COMPANY . IN TERMS OF THE AGREEMENT TO SELL, THE VENDEE WAS T O MAKE AVAILABLE THE SAID PROPERTY AND ALSO SOME OTHER ADJ ACENT PROPERTY AFTER NECESSARY ALTERATIONS TO BE FIT FOR USE AS GUEST HO USE BY THE ASSESSEE COMPANY. THE TRANSACTION D I D NOT MATER I ALIZE AND THE ENTIRE ADVANCE WAS REFUNDED IN THE NEXT FINANCIAL YEAR. DETAILS OF ADV ANCE G I VEN AND REFUND OF ADVANCE IN NEXT YEAR IS PLACED ON RECORD. THE A . O. DISALLOWED THE AMOUNT OUT OF INTEREST PAID ON ACCOUNT OF NOTIONAL INTERES T ON THE SAID INTEREST FREE ADVANCE GIVEN AGAINST PURCHASE OF GUEST HOUSE PROPE RTY. THE NOTIONAL INTEREST HAS BEEN WORKED OUT ON THE ENTIRE ADVANCE OF RS.7,05,00,000/- @14.5% FOR THE WHOLE YEAR. THE 14.5% RATE OF INTERE ST HAS BEEN ADOPTED BEING THE RATE OF INTEREST PAID BY THE ASSESSEE ON DEBENTURE ADVANCE RECEIVED FROM THE DIRECTOR. ACTUAL INTEREST BEING PAID TO BA NKS ON VARIOUS BUSINESS LOANS AND LIMITS IS LESS THAN THE RATE OF INTEREST OF 14.5% APPLIED BY THE ASSESSING OFFICER. ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 13 9. LEARNED CIT(A) DELETED THE ADDITIONS AS PER THE REASONS RECORDED HEREINABOVE. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE REASONS GIVEN TO A . O., SUBMISSION OF THE ASSESSEE AND THE FACTS ON RECORD CONSIDERED. IN THE FACTS AND CIRCUMSTANCES O F THE CASE AND IN VIEW OF THE JUDICIAL PRONOUNCEMENTS OF THIS ISSUE , TWO FACTS NEEDED TO BE ESTABLISHED BY A . O . IN THE CASE OF DISALLOWANCE OF INTEREST ON BORROWED FUND U/S. 36(1)(III) AGAINST INTEREST FREE ADVANCE GIVEN TO S ISTER CONCERNS. FIRST IS THE NEXUS BETWEEN THE BORROWED FUNDS AND THE COMMERCIAL EXPEDIENCY. THE SCHEDULE 1 & 2 OF THE RELEVANT BALANCE SHEET SHOWS R ESERVES & SURPLUS RS.18,8 8 ,05,169/-), SHARE CAPITAL (RS.1 , 89,10,000/-) THAT INDICATES AVAILABILITY OF INTEREST FREE FUNDS. THE ASSESSEE CLAIMS THAT AD V ANCES WERE MADE FROM INTEREST FREE FUNDS. THE FACTS OF THIS CASE HAVE TO BE CONSIDERED IN THE LIGHT OF THE JUDGMENT OF HON'BLE HIGH COURT IN THE CASE OF BHARTI TELEVENTURES (2011) 331 ITR 502 (DELHI) WHEREIN THE COURT OBSERVED AS UNDER: ' WE NOTE THAT THE ASSESSEE WAS MAINTAINING A BANK ACCOUNT WITH MIXED COMMON FUND IN WHICH ALL THE DEPOSITS AND WITHDRAWA LS WERE MADE THERE WAS NO SPECIFIC INSTANCE NOTED BY THE AO IN RESPECT OF ANY DIRECT NEXUS BETWEEN BORROWED FUND AND THE SAID ADVANCE MADE TO THE SUBS IDIARIES . THE AO HAD MADE GENERAL OBSERVATIONS WITHOUT GOING INTO DEPTH OF THE MATTER AND WITHOUT POINTING OUT ANY SPECIFIC INSTANCE WHERE AN INTERES T BEARING BORROWED FUND WAS ADVANCED TO THE SUBSIDIARIES OR ESTABLISHING THAT THE BORROWINGS MADE BY THE APPELLANT WERE NOT FOR BUSINESS PURPOSE . BOTH APPELLATE AUTHORITIES BELOW WERE OF THE VIEW THAT THE ASSESSEE HAD EXPLAINED TH E SOURCES OF THE ADVANCES AND INVESTMENTS MADE TO THE SUBSIDIARIES , WHICH COULD NOT BE LINKED TO THE BORROWED FUNDS AND THAT THE ADVANCES WERE MADE OUT OF THE ASSESSEE ' S OWN CAPITAL. AT THE RELEVANT TIME , THE ASSESSEE WAS FOUND TO BE HAVING AN ADEQUATE NON- INTEREST BEARING FUND BY WAY OF SHARE CAPITAL AND RESERVES . EVEN OTHERWISE THE ADVANCES WERE FOUND TO BE MADE T O THE SUBSIDIARIES FOR BUSINESS CONSIDERATIONS WHICH IS NOTHING BUT COMMER CIAL EXPEDIENCY OF THE ASSESSEE BUT BEING IN THE FACTUALLY OPPOSITION REFL ECTED FROM THE RECORD OF THE ASSESSEE , THE ONUS THAT LAID ON IT STOOD DISCHARGED . ' ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 14 10.1 IN THE CASE OF S.A . BUILDERS LTD. VS. CIT (2007) 288 ITR 1 (SC) IT IS HELD THAT ' THE MATRIX OF THE CASE IS THAT THE ASSESSEE BORROWE D MONEY FROM THE BANK AND LENT IT TO ITS SISTER CONCERN FREE OF INTEREST . THE APEX COURT DISCUSSED THE CONCEPT OF COMMERCIAL EXPEDIENCY WHICH WAS HITHERTO NOT DISCUSSED IN THE LOWER FORUMS INCLUDING THE HIGH COURT . ALSO HELD THAT THE BUSINESS EXPENDITURE MAY NOT HAV E BEEN INCURRED UNDER ANY LEGAL OBLIGATION , YET IT IS ALLOWABLE IF INCURRED ON GROUNDS OF COMME RCIAL EXPEDIENCY . ' 10.2 IT IS DEFINED THAT ' COMMERCIAL EXPEDIENCY ' IS ONE OF WIDE IMPORT AND INCLUDES SUCH EXPENDITURE AS A PRUDENT BUSINESS MAN I NCURS FOR THE PURPOSE OF BUSINESS . THE ASSESSEE HAS EXPLAINED THE COMMERCIAL NEED SUPP ORTED BY DOCUMENTARY EVIDENCES. UNLESS AD BRINGS SOME OTHER FACTS TO CONTRADICT THE EXPLANATION AND THE DOCUMENTS SUBMITTED IN SUPPORT OF SUCH EXPLANATION , THE SAME HAS TO BE TREATED AS TRUE. COMPARISON OF INTER EST PAID TO OTHER DIRECTORS ON DEBENTURES AND NOT CHARGING INTEREST ON THE ADVA NCE GIVEN TO OTHER DIRECTOR IS A BUS I NESS DECISION OF THE ASSESSEE . SUCH COMPARISON DOES NOT INDICATE NEXUS BETWEEN THE BORROWED FUND AND THE IN TEREST FREE ADVANCE GIVEN TO RELATED PARTIES. THE NEED TO ESTABLISH THE NEXUS IS MORE IMPORTANT IN THE SCENARIO WHEN OUT OF TOTAL INTEREST EXPENSES ON BORROWED FUND RS.1 , 49,99,992/- AN AMOUNT OF RS . 1,02 , 22,500/- IS DISALLOWED. 10.3 FOLLOWING THE DECISION REFERRED ABOVE , THE FACTS OF THE PRESENT CASE INDICATES THAT THE BASIC REQUIREMENTS OF DISALLOWAN CES THAT IS NEXUS BETWEEN INTEREST BEARING FUND AND INTEREST FREE ADVANCE AND ADEQUACY OF INTEREST FREE FUND ARE NOT ANALYSED BY ASSESSING OFFICER DURING A SSESSMENT PROCEEDINGS. THE ASSESSEE EXPLAINED BEFORE THE AO THAT ADVANCE W AS GIVEN FOR SOME BUSINESS PURPOSES WHICH DID NOT MATERIALIZE. HENCE, THE SAME HAS BEEN ITA NO.125/DEL/2014 & CO NO.256/DEL/2014 15 RECEIVED BACK DURING THE SUBSEQUENT YEAR. THUS , IN THE ABSENCE OF ANY FINDING, CONTRARY TO THE EXPLANATION GIVEN BY ASSES SEE, IT CANNOT BE HELD THAT THE LOAN WAS NOT GIVEN FOR ANY BUSINESS PURPOSE. PA RTICULARLY , IN VIEW OF THE FACT THAT ASSESSEE HAVING ADEQUATE NON-INTEREST BEA RING FUND IT CAN BE INFERRED THAT THE LOAN GIVEN HAS NO BEARING ON THE INTEREST EXPENSE CLAIMED BY ASSESSEE ON THE BORROWED FUND. IN THE CIRCUMSTAN CES, THE LEARNED CIT(A) HAS RIGHTLY DELETED THE DISALLOWANCE AND WE FIND NO INFIRMITY IN THE ORDER OF LEARNED CIT(A). ACCORDINGLY GROUNDS NO.4 AND 5 OF THE REVENUE ARE DISMISSED. 14. IN THE RESULT, THE APPEAL OF THE REVENUE AND TH E CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 24 TH APRIL, 2017 SD/- SD/- (I.C. SUDHIR) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24/04/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS) 5.DR: ITAT ASSTT. REGISTRAR, ITAT, NEW DELHI