M/s. JC Bamford Excavators Ltd., New Delhi V. DDIT, New Delhi

CO 303/DEL/2012

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9554 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 21-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 12-05-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 24-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJEEV SHARMA
• Assessee Lawyers: G C SRIVASTAVA; SAURABH SRIVASTAVA
• Keywords: Permanent establishment
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SH. R. S. SYAL, AM AND SH. I. C. SUDHIR, JM ITA NO. 111/DEL/2012 : ASSTT. YEAR : 2008-09 DEPUTY DIRECTOR OF INCOME-TAX, CIRCLE-3(1), INTERNATIONAL TAXATION, NEW DELHI VS M/S JC BAMFORD EXCAVATORS LTD., C/O PRICEWATERHOUSE, 11-A, SUCHETA BHAWAN, VISHNU DIGAMBER MARG, NEW DELHI-110002 (APPELLANT) (RESPONDENT) CO NO. 303/DEL/2012 : ASSTT. YEAR : 2008-09 M/S JC BAMFORD EXCAVATORS LTD., C/O PRICEWATERHOUSE, 11-A, SUCHETA BHAWAN, VISHNU DIGAMBER MARG, NEW DELHI-110002 VS DEPUTY DIRECTOR OF INCOME-TAX, CIRCLE-3(1), INTERNATIONAL TAXATION, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AABCJ6004D ASSESSEE BY : SHRI G. C. SRIVASTAVA, ADV. & SAURABH SRIVASTAVA REVENUE BY : SHRI SANJEEV SHARMA, CIT DR DATE OF HEARING : 20.5.2014 DATE OF PRONOUNCEMENT : 21.5.2014 ORDER PER R. S. SYAL, AM: THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE ARISE OUT OF THE ORDER PASSED BY THE CIT(A) ON 30.0 9.2011 IN RELATION TO THE ASSESSMENT YEAR 2008-09. ITA NO. 111/DEL/2012 & CO NO. 303/DEL/2012 JC BAMFORD EX CAVATORS LTD. 2 2. FIRST GROUND OF THE REVENUES APPEAL IS AGAINST THE HOLDING BY THE LD. CIT(A) THAT THE ASSESSEE COMPANY DID NOT HAVE A SERVICE PERMANENT ESTABLISHMENT IN INDIA. 3. HAVING HEARD BOTH THE SIDES ON THIS ISSUE AND PE RUSED THE RELEVANT MATERIAL ON RECORD, IT IS PALPABLE THAT THIS GROUND DOES NOT ARISE OUT OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER HAS NO WHERE HELD THAT THERE IS ANY PERMANENT ESTABLISHMENT. THE LD. DR CANDIDLY ACCEPTED THE POSITION BY ADMITTING THAT THIS GROUND DOES NOT ARI SE OUT OF THE ORDER PASSED BY THE AUTHORITIES BELOW. IN VIEW OF THE ABO VE DISCUSSION, IT IS CLEAR THAT THIS GROUND IS NOT MAINTAINABLE AND IS H EREBY DISMISSED. 4. SECOND GROUND OF THE REVENUES APPEAL IS AGAINST NOT HOLDING BY THE LD. CIT(A) THAT ROYALTY INCOME OF RS. 92,13,440 /- EARNED BY THE ASSESSEE DURING THE FINANCIAL YEAR 2006-07 IS TAXAB LE IN THE ASSESSMENT YEAR 2008-09. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT THE SAME IS SUE WAS THERE IN THE APPEAL FOR THE ASSESSMENT YEAR 2007-08. THE TRIBUNA L, VIDE ITS ORDER FOR THE SAID ASSESSMENT YEAR 2007-08, HAS HELD THAT TH E AMOUNT OF RS. 92,13,440/- SHOULD BE INCLUDED IN THE TOTAL INCOME OF THAT YEAR. SINCE, THE SAME AMOUNT HAS BEEN HELD TO BE INCLUDIBLE IN T HE TOTAL INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-08, THERE CAN BE NO QUESTION OF ITA NO. 111/DEL/2012 & CO NO. 303/DEL/2012 JC BAMFORD EX CAVATORS LTD. 3 INCLUDING THE VERY SAME AMOUNT IN TOTAL INCOME FOR THE YEAR UNDER CONSIDERATION AS WELL. THIS GROUND IS NOT ALLOWED. 6. THE ONLY ISSUE RAISED BY THE ASSESSEE IN ITS CRO SS OBJECTION IS AGAINST THE DIRECTION OF THE LD. CIT(A) IN HOLDING THAT THE INTEREST U/S 234B IS CONSEQUENTIAL IN NATURE. THE LD. AR FAIRLY ACCEPTED THAT IN VIEW OF THE INCLUSION OF THE AMOUNT OF RS. 92.13 LAKH IN THE TOTAL INCOME FOR THE ASSESSMENT YEAR 2007-08, THERE SURVIVES NOTHING ON WHICH INTEREST U/S 234B COULD BE CHARGED. IN VIEW OF THIS POSITION STATED BY THE LD. AR, WE DISMISS THIS GROUND AS HAVING BECOME ACADEMIC IN NATURE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/5/2014 . SD/- SD/- (I. C. SUDHIR) (R. S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 21/5 /2014 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR