D.C.I.T Cir - 11,kolkata, Kolkata V. M/s AT & S India Pvt Ltd, Karnataka

ITA 1160/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99893 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 09-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: SOUMITRA CHOW DHURY
• Keywords: Double taxation relief; Permanent establishment; Advance ruling; Question of law
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1160 & 2305 / KOL / 2013 ASSESSMENT YEARS :2008-09 & 2004-05 DCIT, CIRCLE-11, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069 AT & S INDIA PVT. LTD., 12A, INDUSTRIAL AREA, NANJANGUD, MYSORE, KARNATAKA 571 301 [ PAN NOAECA 2930J ] V/S . V/S . M/S AT & S INDIA PVT. LTD., 12, INDUSTRIAL AREA, NANGANGUD, MYSORE, KARNATAKA DCIT, RANGE-11, P-7, CHOWRINGHEE SQUARE, KOLKATA /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI SOUMITRA CHOWDHURY, ADVOCATE /BY REVENUE SHRI NIRAJ KUMAR, CIT-DR /DATE OF HEARING 01-10-2015 ! /DATE OF PRONOUNCEMENT 15-10-2015 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THESE ARE TWO APPEALS - ONE BY THE REVENUE AND ANO THER BY ASSESSEE ARE ARISING OUT OF DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)- XII, KOLKATA IN APPEAL NO.526 & 493/CIT(A)-XII/11/1 1-12 DATED 05.02.2013 & 15.03.2013. ASSESSMENTS WERE FRAMED BY ACIT, KOLKAT A RANGE-11/DCIT CIRCLE-11, KOLKATA U/S 143(3) OF THE INCOME TAX ACT , 1961 (HEREINAFTER REFERRED ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 2 TO AS THE ACT) VIDE THEIR ORDERS DATED 30.12.2011 AND 27.12.2010 FOR ASSESSMENT YEARS 2008-09 AND 2004-05 RESPECTIVELY. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO.1160/KO L/2013 A.Y.08-09 2. ONLY ISSUE RAISED BY REVENUE IS AS REGARD THAT L D. CIT(A) HAS DELETED THE ADDITION OF RS.1,59,95,287/- U/S 40(A)(IA) OF T HE ACT WITHOUT APPRECIATING THE FINDING OF ASSESSING OFFICER THAT ASSESSEE FAIL ED TO DEDUCT TAX AT SOURCE. 3. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS A PRIV ATE LIMITED COMPANY AND ENGAGED INTO BUSINESS OF MANUFACTURE AND SALE OF PR OFESSIONAL GRADE PRINTED CIRCUIT BOARDS. THE ASSESSEE-COMPANY IS A SUBSIDIAR Y OF AT&S AUSTRIA. AT&S AUSTRIA HAS ENTERED INTO GLOBAL ARRANGEMENTS FOR VA RIOUS FACILITIES AND SERVICES, WHICH ARE TO BE USED BY AT&S AUSTRIA AND ITS GROUP COMPANIES LOCATED IN DIFFERENT COUNTRIES, INCLUDING INDIA. TH E DIFFERENT COMPANIES WITH WHOM SUCH ARRANGEMENTS HAVE BEEN ENTERED INTO BY AT & S AUSTRIA ARE AUSTRIAN TELECOM FOR WAN SATEL LITE LINK BETWEEN AUSTRIA AND INDIA, T SYSTEMS DSS GMBH FOR LOTUS PRODUCTS (S OFTWARE), MICROSOFT IRELAND OPERATIONS LTD. FOR MICROSOFT PRODUCTS (SOF TWARE), SAP OSTERREICH GMBH FOR SAP SOFTWARE, IBM OSTERREICH GMBH FOR SAP SOFTWARE, SYMANTEC FOR NORTON ANTIVIRUS SOFTWARE. DURING THE YEAR UNDE R CONSIDERATION, ASSESSEE- COMPANY HAS CLAIMED AN EXPENSE OF RS.1,59,95,287/- TOWARDS SHARE TECHNOLOGY SERVICES. IT WAS PAID TO QUA COMPANY BAS ED IN AUSTRIA. DURING THE ASSESSMENT PROCEEDINGS, AO FOUND THAT ASSESSEE HAS FAILED TO DEDUCT TDS OF SUCH EXPENSES. THE AO CALLS UPON THE ASSESSEE TO EX PLAIN THE REASONS FOR NON-DEDUCTION OF TDS. THE AR OF ASSESSEE SUBMITTED THAT THESE PAYMENTS WERE NOTHING BUT REIMBURSEMENT OF EXPENSE IN TERMS OF AGREEMENT BETWEEN ASSESSEE-COMPANY AND AT&S AUSTRIA. THE AO HAS DISRE GARDED THE CLAIM OF ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME OF ASSESSEE FOR VIOLATING THE PROVISION OF SEC. 40(A)(IA) OF THE ACT. AGGRIEV ED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A). ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 3 4. BEFORE LD. CIT(A) IT WAS SUBMITTED BY LD. AR OF ASSESSEE THAT TDS ARISES ONLY IF THE SAME WERE CHARGEABLE TO TAX IN I NDIA. IN THE PRESENT CASE, AMOUNT WAS NOT CHARGEABLE TO TAX IN INDIA. SO THE P ROVISION OF THE SECTION FOR WITHHOLDING OF TAX DOES NOT APPLY. THE LIABILITY TO DEDUCT TDS U/S 195 OF THE ACT ARISE ONLY IF THE INCOME IS TAXABLE IN THE HAND S OF NON-RESIDENT/FOREIGN COMPANY. THE REFERENCE IS ALSO DRAWN TO SECTION 4(2 ) OF THE ACT WHICH PROVIDES THAT A PERSON WILL HAVE THE OBLIGATION TO WITHHOLD TAX (TDS) UNDER THE ACT IN RESPECT OF INCOME CHARGEABLE TO TAX U/S. 4(1 ) OF THE ACT. THE FOLLOWING CASE LAW WERE ALSO SUBMITTED:- I) LUFTHANSA CARGO INDIA PRIVATE LTD 140 TAXMAN 1 (AT-DEL) II) GE INDIA TECHNOLOGY CENTRE PVT. LTD.V. (2010) CIT 327 ITR 456 (SC) III) CIT V. DUNLOP RUBBER CO. LTD. 142 ITR 493 (CA L) IV) VAN OORD ACZ INDIA (P) LTD. V. CIT (2010) TIOL 187 V) CIT V. FORTIS HEALTH CARE LTD. 181 TAXMAN 257 VI) DCIT V. LAZARD INDIA PVT. LTD. (2010) 41 SOT 7 2 (MUM) VII) NATHPA JHAKRI JOINT VENTURE V. ACIT (2010) 5 ITR 75 (MUM) VIII) MAHINDRA AND MAHINDRA LTD. V. DCIT (2009) 31 3 ITR (AT) 263 (MUM) IT WAS ALSO SUBMITTED THAT THE SECTION 90(2) OF THE ACT PROVIDES THAT IN CASE OF DOUBLE TAXATION AVOIDANCE AGREEMENT WITH THE GOVT. OF ANOTHER COUNTRY, THE PROVISION OF THIS ACT WILL APPLY ONLY TO THE EXTENT IF IT IS BENEFICIAL TO THE ASSESSEE. THE ASSESSEE ALSO DEMONSTRATED THAT THE P AYMENT IS NOT TOWARDS ROYALTY. THEREFORE IT IS OUT OF THE PURVIEW OF THE TDS PROVISION AND ASSESSEE ALSO CITED CASE LAW IN SUPPORT OF ITS CASE AS UNDER :- A) TATA CONSULTANCY SERVICES V. STATE OF ANDHRA PRA DESH 271 ITR 401 B) NOKIA NETWORKS NY [TS-700-HIGH COURT-2012 (DEL)] C) B4U INTERNATIONAL HOLDINGS LTD CASE [TS-358-ITAT -2012 (MUM)] D) ITA NO. 1448-1449/KOL/2008 (FOR AY 2002-03 & 20 03-04) E) CIT VS. TEJAJI FARASRAM KHARAWALLA LTD. (1968) 6 7 ITR 95 (SC) F) SKYCELL COMMUNICATION LTD. V. DCIT 251 ITR 53 G) WIPRO LTD. V. ITO (2003) 80 TTJ (BANG) ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 4 H) BSES TELECOM LTD. V. DCIT (ITA NO. 9281/BANG/200 2) I) TATA CONSULTANCY SERVICES V. STATE OF ANDHRA PRA DESH 271 ITR 401 (SC) J) CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD. (200 9) 309 ITR 356 K) CIT V. INDUSTRIAL ENGINEERING PROJECTS PVT. LTD. (1993) 202 IT 1014 (CAL) L) ROLLS ROYCE INDIA LTD. V. ITO (1998) 25 ITD 127 (DEL) M) ACIT V. MODICON NETWORK PVT. LTD. (2007) 14 SOT 204 (DEL) THE LD. AR ALSO MADE THE REFERENCE TO THE MODEL TRE ATIES ISSUED BY OECD (ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPM ENT) WITH REGARD TO THE PAYMENT FOR THE COMPUTER PROGRAMS. ON THE BASIS OF ABOVE SUBMISSION, THE CIT(A) HELD THAT THE EXPENSES ARE OUT OF THE PURVIE W OF TDS BEING REIMBURSED AND ALSO NOT CHARGEABLE OF TAX IN INDIA. THEREFORE, THE ADDITION MADE BY AO STANDS DELETED. 5. AGGRIEVED, NOW REVENUE IS IN APPEAL BEFORE US. SHRI NIRAJ KUMAR, LD. DEPARTMENTAL REPRESENTATIVE A PPEARING ON BEHALF OF REVENUE AND SHRI SOUMITRA CHOWDHURY, LD. AUTHORIZED REPRESENTATIVE APPEARING ON BEHALF OF ASSESSEE. 6. WE HAVE HEARD RIVAL PARTIES AND PERUSED THE MATE RIALS AVAILABLE ON RECORD. BEFORE US LD. DR SUPPORTED THE ORDER OF AO WHEREAS LD AR SUPPORTED THE ORDER OF LD. CIT(A) AND HE STATED THA T LD. CIT(A) PASSED ORDER BY VIRTUE OF THE ORDER PASSED BY THIS TRIBUNAL IN A SSESSEES OWN CASE IN VARIOUS ASSESSMENTS INCLUDING 2005-06- ITA 1262-186 /KOL/2010, 2006-07- ITA 2071/KOL/2010 & 2007-08 ITA 779/KOL/ 2012 VID E ORDER DATED 29-01- 2015, WHEREIN THIS TRIBUNAL HAS DELETED THE ADDITIO N MADE BY AO ON ACCOUNT OF TDS SHARE TECHNOLOGY SERVICES, THE RELEVANT PARA - 7 OF THE ITAT ORDER IS REPRODUCED AS UNDER:- ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 5 18. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PE RUSAL OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F TEJAJI FARASRAM KHARAWALLA LIMITED, SUPRA CLEARLY SHOWS THAT SUPREM E COURT HAS CATEGORICALLY HELD THAT THE REIMBURSEMENT OF THE AC TUAL EXPENSES WOULD NOT BE TAXABLE IN THE HANDS OF THE PERSON RECEIVING THE REIMBURSEMENTS. FURTHER HON'BLE KARNATAKA HIGH COURT IN A RECENT JU DGMENT IN THE CASE OF DIT V. SUN MICROSYSTEMS INDIA P. LTD. (2014) 369 ITR 63(KARN) EXACTLY ON THE SIMILAR ISSUE INTERPRETING ARTICLE 7 OF THE DTAA BETWEEN INDIA AND SIGNAPORE, WHICH IS IDENTICALLY WORDED TO ARTICLE 7 OF DTAA BETWEEN INDIA AND AUSTRIA, AND HELD AS UNDER:- THE MATERIAL ON RECORD DISCLOSES THAT THE ASSESSEE ENTERED INTO AN AGREEMENT FOR AVAILING OF LOGISTIC-SERVICE FOR S UN MICROSYSTEMS SINGAPORE P. LTD. (SUN SINGAPORE FOR BREVITY). IN TERMS OF THE AGREEMENT, SUN SINGAPORE IS REQUIRED TO PROVIDE DIS TRIBUTION, MANAGEMENT AND LOGISTIC SERVICES TO SUN MICROSYSTEM S INDIA P. LTD. (SUN INDIA FOR BREVITY) AND SUCH SERVICES IN CLUDED PROVIDING SPARE MANAGEMENT SERVICES PROVISION OF BUFFER PLANN ING TO ADDRESS SERVICE LEVELS, ETC., SUN SINGAPORE IS NOT HAVING ANY PLACE OF BUSINESS OR PERMANENT ESTABLISHMENT IN IND IA. ENTIRE SERVICES WERE RENDERED BY SUN SINGAPORE FROM OUTSID E INDIA. SUN SINGAPORE IS NOT ENGAGED IN THE BUSINESS OF PROVIDI NG LOGISTIC SERVICES IN INDIA. SUN INDIA THE ASSESSEE AVAILS OF SERVICES OF SUN SINGAPORE FOR WHICH A SERVICE FEE IS PAID. FROM THE BUSINESS DESCRIPTION OF THE ASSESSEE, IT IS CLEAR THAT THE A SSESSEE IS ENGAGED IN MARKETING AND SUPPORT SYSTEM OF HARDWARE AND SOFTWARE PRODUCTS. THE MATERIAL ON RECORD DO NOT DI SCLOSE THAT SUN SINGAPORE HAS MADE AVAILABLE TO THE ASSESSEE IT S TECHNICAL KNOWLEDGE, EXPERIENCE OR SKILL. UNDER THESE CIRCUMS TANCES, THE TRIBUNAL HELD THAT, AS SUN SINGAPORE IS NOT HAVING ANY PERMANENT ESTABLISHMENT AND THAT SUN SINGAPORE HAS NOT MADE A VAILABLE THE TECHNICAL KNOWLEDGE, EXPERIENCE OR SKILL, THE PAYME NTS MADE BY THE ASSESSEE TO SUN SINGAPORE WERE NOT REQUIRED TO BE TAXED UNDER THE HEAD BUSINESS AND IS NOT TAXABLE IN VIEW OF ARTICLE 7 OF THE DTAA BETWEEN INDIA AND SINGAPORE. THE REVENU E IS CHALLENGING THE SAID FINDING ON THE GROUND THAT THE TERMS OF THE AGREEMENT PROVIDES FROM MAKING AVAILABLE INVENTORY PHYSICAL MOVEMENT AND SELF-CONTROL PROCESS, ASSISTANCE TO EN ABLE, INVENTORY TRANSACTIONS AND MANAGEMENT AND BUSINESS PLANNING TO ADDRESS SERVICE LEVEL RELATING TO THE LOCAL BUSINES S AND CUSTOMER NEEDS. HOWEVER, THE ASSESSEE IS NOT UTILIZING THE S AID SERVICES IN ORDER TO AVOID DEDUCTION TAX AT SOURCE. THIS COURT HAD AN OCCASIONS TO CONSIDER THIS AGREEM ENT IN THE CASE OF CIT V. DE BEERS INDIA MINERALS P. LTD. REPO RTED IN [2012] 346 ITR 467 (KARN), WHERE AFTER REFERRING TO VARIOU S PROVISIONS OF ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 6 LAW, IT WAS HELD THAT THE QUESTION, WHETHER ALONG W ITH RENDERING TECHNICAL SERVICES, WHETHER THE TECHNICAL KNOWLEDGE WITH WHICH THE SERVICES WAS RENDERED WAS ALSO MADE AVAILABLE T O THE ASSESSEE/CUSTOMERS IS PURELY A QUESTION OF FACT WHI CH IS TO BE GATHERED FROM THE TERMS OF THE CONTRACT, THE NATURE OF SERVICES UNDERTAKEN AND WHAT HAS TRANSMITTED IN THE END AFTE R RENDERING TECHNICAL SERVICES. IF ALONG WITH TECHNICAL SERVICE S RENDERED, IF THE SERVICE PROVIDER ALSO MAKES AVAILABLE THE TECHNOLOG Y WHICH THEY USED IN RENDERING SERVICES, THEN IT FALLS WITHIN TH E DEFINITION OF FEES FOR TECHNICAL SERVICES AS CONTAINED IN THE DTAA. HOWEVER, IF TECHNOLOGY IS NOT MADE AVAILABLE ALONG WITH TECH NICAL SERVICES WHAT IS RENDERED IS ONLY TECHNICAL SERVICES AND THE TECHNICAL KNOWLEDGE IS WITHHELD, THEN SUCH A TECHNICAL SERVIC E WOULD NOT FALL WITHIN THE DEFINITION OF TECHNICAL SERVICES IN THE DTAA AND THE SAME IS NOT LIABLE TO TAX. FROM THE FACTS OF THIS CASE, IT IS CLEAR THAT SUN S INGAPORE HAS NOT MADE AVAILABLE TO THE ASSESSEE THE TECHNOLOGY OR TH E TECHNOLOGICAL SERVICES WHICH IS REQUIRED TO PROVIDE THE DISTRIBUTION, MANAGEMENT AND LOGISTIC SERVICES. THA T IS A FINDING OF FACT RECORDED BY THE TRIBUNAL ON APPRECIATION OF TH E ENTIRE MATERIAL ON RECORD. WHEN ONCE FACTUALLY IT IS HELD THE TECHNICAL SERVICES HAS NOT BEEN MADE AVAILABLE, THEN IN VIEW OF THE LAW DECLARED IN THE AFORESAID JUDGMENT, THERE IS NO LIA BILITY TO DEDUCT TAX AT SOURCE AND, THEREFORE, THE FINDING RECORDED BY THE APPELLANT AUTHORITY CANNOT BE FOUND FAULT WITH. IN THAT VIEW OF THE MATTER, THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN FAVOUR O F THE ASSESSEE AND AGAINST THE REVENUE. FROM THE ABOVE JUDGMENT OF HON'BLE KARNATAKA HIGH C OURT IT IS CLEAR THAT THE PARENT COMPANY HAS NOT MADE AVAILABLE TO THE ASSESSEE THE TECHNOLOGY OR THE TECHNOLOGICAL SERVICES WHICH WAS REQUIRED TO PROVIDE THE DISTRIBUTION,, MANAGEMENT AND LOGISTIC SE5RIVED ES. IN VIEW OF THIS JUDGMENT AND PERUSAL OF THE ORDER OF THE AO GIVING EFFECT TO THE ORDER OF COORDINATE BENCH OF THIS TRIBUNAL FOR THE AY 2004-0 5 IN ITA NO. 1450/KOL/2008 DATED 31.03.2010 CLEARLY SHOWS THAT T HE ASSESSING OFFICER AFTER VERIFYING THE AGREEMENT WITH AT & S A USTRIA HAS ALSO TAKEN INTO CONSIDERATION THE DECISION OF CIT(A) FOR THE A Y 2005-06 AND HAS HELD THAT THE SAID WARRANTY EXPENSES ARE NOTHING BU T REIMBURSEMENT OF THE ACTUAL COST AND CONSEQUENTLY THERE IS NO REQUIR EMENT OF DEDUCTION OF TDS UNDER SECTION 195 OF THE ACT. WE HAVE GONE T HROUGH THE ORDERS OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE ASS ESSEES OWN CASE IN ITA NOS. 1448& 1449/KOL/2008 DATED 24.07.2009 FOR A YS 2002-03 AND 2003-04 AND ITA NO. 1450/KOL/2008 DATED 31.03.2010 FOR THE AY 2004- 05, WHEREIN IT HAS BEEN HELD AS UNDER: ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 7 2.1. THE FATS OF THE CASE ARE THAT THE ASSESSEE IS A COMPANY WHICH IS DERIVING INCOME FROM MANUFACTURE AND SALE OF PROFESSIONAL GRADE PRINTED CIRCUIT BOARDS. DURING T HE ACCOUNTING YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATIO N, THE ASSESSEE MADE THE PAYMENT OF RS.45,94,291/- TO M/S AT & S, AUSTRIA TECHNOLOGY & SYSTEMTECHNIK, AKTIENGESELLSCH AFT (HEREINAFTER CALLED AT & S, AUSTRIA). THE ABOVE P AYMENT WAS MADE BY THE ASSESSEE WITHOUT DEDUCTION OF TAX AT SO URCE. BEFORE THE AO, IT WAS EXPLAINED BY THE ASSESSEE THAT THE A MOUNT HAS BEEN PAID AT COST OF INTER-COMPANY SERVICES RECEIVE D. THE ASSESSEE HAS ENTERED INTO AN AGREEMENT DATED 13.03. 2001 WITH M/S AT & S, AUSTRIA. IN THE AGREEMENT, IT IS STATED THAT M/S. AT & S, AUSTRIA HAS ENTERED INTO DIFFERENT AGREEMENTS WI TH DIFFERENT PROVIDERS OF SERVICES. APART FROM THESE SERVICES RE NDERED BY THE SERVICE PROVIDERS RELATES TO BUSINESS OPERATION OF THE ASSESSEE AND ARE UTILIZED BY THE ASSESSEE. 2.2 AT THE TIME OF HEARING BEFORE US, THE LEARNED C OUNSEL FOR THE ASSESSEE ARGUED AT LENGTH. HIS ARGUMENTS WERE OF TW O FOLDS, VIZ.- (I) THAT THE PAYMENT MADE BY THE ASSESSEE TO M/S AT &S, AUSTRIA WAS ONLY REIMBURSEMENT. HE POINTED OUT THAT M/S. AT & S, AUSTRIA HAS ENTERED INTO DIFFERENT AGREEMENTS WITH DIFFEREN T PROVIDERS OF SERVICE. SINCE PART OF THE SERVICES WERE UTILIZED B Y THE ASSESSEE, M/S AT & S, AUSTRIA HAS RECOVERED SUCH PART FROM TH E ASSESSEE. HE POINTED OUT THAT THE ALLOCATION OF THE ACTUAL EX PENDITURE INCURRED HAS BEEN MADE ON A RATIONAL BASIS, I.E ON THE BASIS OF NUMBER OF PCS USED BY THE ASSESSEE AND OTHER GROUP CONCERNS, THE DETAILS OF WHICH WERE DULY FURNISHED BEFORE THE LOWER AUTHORITIES AND THE CIT(A) HAS ALSO REPRODUCED THE SAME ON PAGE 6 OF HIS ORDER. HE SUBMITTED THAT THERE IS NO LIABI LITY OF TDS FOR REIMBURSEMENT OF THE EXPENDITURE. IN SUPPORT OF THI S CONTENTION, HE RELIED UPON THE FOLLOWING DECISIONS:- 309 ITR 35 6 (AAR) CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD. 142 ITR 493 (CAL.) CIT- VS.- DUNLOP RUBBER CO. LT D. (II) THAT THE SERVICES RECEIVED BY THE ASSESSEE WER E IN THE NATURE OF USER OF THE COPY RIGHT PRODUCTS. THE LICENCE TO USE COPY RIGHT PRODUCTS DOES NOT AMOUNT TO RENDERING OF TECHNICAL SERVICES WITHIN THE MEANING OF SECTION 9(1)(VII) OF THE ACT. THEREFORE, MERELY BECAUSE M/S AT & S. AUSTRIA HAD PERMITTED TH E ASSESSEE TO USE THE COPY RIGHT PRODUCTS, I.E. SOFTWARE OF VA RIOUS SERVICES PROVIDERS, IT DOES NOT AMOUNT TO RENDERING OF ANY T ECHNICAL SERVICES BY M/S AT & S. AUSTRIA TO THE ASSESSEE WIT HIN THE MEANING OF SECTION 9(1)(VII) OF THE ACT. THUS NO IN COME HAS ACCRUED IN INDIA AND, ACCORDINGLY, THERE IS NO LIAB ILITY TO DEDUCT THE ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 8 TAX AT SOURCE. IN SUPPORT OF THIS CONTENTION, HE HA S RELIED UPON THE FOLLOWING DECISIONS:- 251 ITR 53 (MAD/.) SKYCELL COMMUNICATIONS LTD. VS.- DCIT; 95 ITD 269 (DEL-SB) MOTOROLA INCOME. VS.- DCIT,N ON-RESIDENT CIRCLE; 94 ITD 91 (BANG.)-SAMSUSNG ELECTRONICS CO. LTD.-VS. - ITO (TDS). 2.3 THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND, RELIED UPON THE ORDERS F THE AUTHORITIES BELOW. HE SUBMITTED THAT THE ASSESSEE HAS UTILIZED THE SERVICES BEING PROVID ED BY VARIOUS SERVICE PROVIDER COMPANIES. THE ASSESSEE MADE THE P AYMENTS FOR SUCH SERVICES UTILIZED BY IT. THEREFORE, IN EFF ECT, THE PAYMENT WAS MADE BY THE ASSESSEE TO VARIOUS SERVICE PROVIDI NG COMPANIES THROUGH M/S AT & S. AUSTRIA. M/S. AT & S. AUSTRIA WAS ONLY A CONDUIT THROUGH WHICH PAYMENT WAS MADE. THE SERVICES UTILIZED BY THE ASSESSEE WERE HIGHLY TECHN ICAL AND THEREFORE, THE SAME WERE WITHIN THE MEANING OF TECH NICAL SERVICES AS PROVIDED U/S. 9(1)(VII) OF THE ACT. HE, THEREFOR E, SUBMITTED THAT THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE FRO M THE PAYMENTS MADE BY IT. SINCE THE ASSESSEE HAD FAILED TO DEDUCT TAX AT SOURCE, SEC. 40(A)(IA) OF THE ACT WAS ATTRACTED. THE SAME SHOULD BE SUSTAINED. THE LD. DR ALSO STATED THAT TH E FACTS OF VARIOUS CASES RELIED UPON BY THE LD. COUNSEL FOR TH E ASSESSEE ARE ALTOGETHER DIFFERENT. 2.4 IN THE REJOINDER, IT IS STATED BY THE LD. COUNS EL THAT THE VARIOUS SERVICE PROVIDERS HAD AN AGREEMENT WITH M/S. AT & S . AUSTRIA AND NOT WITH THE ASSESSEE-COMPANY. THEREFORE, THE C ONTENTION OF THE REVENUE THAT THE PAYMENT IS MADE BY THE ASSESSE E TO THE SERVICE PROVIDERS THROUGH THE CONDUIT OF M/S. AT & S. AUSTRIA IS ACTUALLY INCORRECT. AS PER THE AGREEMENT WITH THE V ARIOUS SERVICED PROVIDER COMPANIES, IT WAS M/S. AT & S. AUSTRIA ACQ UIRED THE LICENCE TO USE THOSE SERVICES. IN TURN, M/S. AT & S . AUSTRIA PERMITTED ITS GROUP CONCERN WORLDWIDE TO USE THOSE SERVICES AND THE TOTAL PAYMENT MADE TO SERVICE PROVIDERS WAS REC OVERED FROM THE SERVICE USER COMPANIES ON THE BASIS OF SERVICES ACTUALLY UTILIZED BY THEM. THUS, IN THE PROCESS, NO INCOME H AS ACCRUED TO M/S. AT & S. AUSTRIA. IT HAS ONLY RECOVERED THE ACT UAL EXPENDITURE INCURRED FROM ALL GROUP CONCERNS. 2.5 WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF B OTH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. M/S AT & S. AUSTRIA HAD ENTERED INTO AGREEMENTS WITH SEVERAL COMPANIES FOR UTILIZING THEIR PRODUCTS. IN TURN, IT PERMITTED ITS GROUP CON CERNS TO UTILIZE THOSE PRODUCTS AND THE TOTAL PAYMENTS MADE TO THE S ERVICE PROVIDERS WERE ALLOCATED TO THE GROUP COMPANIES WHO ACTUALLY ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 9 UTILIZED THE SERVICES, THE DETAILS OF WHICH HAS GIV EN IN PAGE 6 OF THE CIT(A)S ORDER, READ AS UNDER: SR.NO. PARTICULARS OF SERVICE CODE KYS TOTAL COST INCURRED BY HQ SHARE OF AT & 2001-02 INVOICE/AGRE EMENT RECEIVED 3 SERVICE PROVIDED BY MICROSOFT IRELAND OPERATIONS LTD., SEE LICENSES FOR AT&S A LICENCE FOR MICROSOFT PRODUCT. CHARGES WILL BE BASED ON NUMBER OF PCS USED PER LEGAL ENTITY. 1N4 2 180.431 36,754 YES MICROSOFT ENTERPRISE LIZENZEN 1N5 2 0 0 NO. MICROSOFT MEDIEN 4 SERVICES PROVIDED BY SAP OSTERREICH GMBH, SEE CONTRACT WITH AT&S, AUSTRIA SAP MAINTENANCE, CHARGES WILL BE PASSED ON THE NUMBER OF SAP USERS PER LEGAL ENTITY WARTUNG MY SAP.COM 1N6 3 181,794 22,388 YES 5 SERVICES PROVIDED BY 1BM OSTERREICH GMBH INTERNATIONAL BUROMASCHINEN GESSELS CHAFT A. SAP MAINTENANCE. CHARGES WILL BE PASSED ON THE NUMBER OF SAP USERS PER LEGAL ENTITY MYSAP.COM LIZENZVERTRAG 1N7 3 20,315 2,502 NO SAP R/3 LIZENZGEBUHR 1N8 3 84,417 10,396 NO SAP R/3 EINFUHURUNG 1N9 3 108,693 13,386 NO B. LICENCES FOR FIREWALL SOFTWARE AND HARDWARE. COSTS WILL ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 10 BE EVENLY SPARED AMONG THE TOTAL NUMBER OF PLANTS LIN THE AT&S GROUP PROJECT FIREWALL CISCO PIX 1N11 4 3,589 449 NO WARTUNG FIREWALL CISCO PIX 4 0 7 NOT MENTIONED ND CHARON FAXSERVER-KAUF 1N11 2 7,885 1,606 TOTAL 87,481 2.6 FROM THE ABOVE, IT IS EVIDENT THAT THE ALLOCATI ON OF EXPENDITURE FOR UTILIZING MICROSOFT PRODUCTS WAS ON THE BASIS O F NUMBER OF PCS USED BY THE SERVICE RECEIVER COMPANIES. SIMILARLY, SERVICES PROVIDED BY SAP, AUSTRIA WERE ALLOCATED ON THE BASI S OF NUMBER OF SAP USERS. IN VIEW OF THE ABOVE, WE ARE OF THE O PINION THAT THE AMOUNT PAID BY M/S AT & S. AUSTRIA FOR USING THE PR ODUCTS OF VARIOUS SERVICE PROVIDER COMPANIES WAS ALLOCATED AM ONGST THE GROUP COMPANIES INCLUDING THE ASSESSEE ON THE BASIS OF SERVICES ACTUALLY UTILIZED BY THEM.THEREFORE, THE NATURE OF PAYMENT BY THE ASSESSEE TO M/S. AT & S. AUSTRIA WAS IN THE NATURE OF REIMBURSEMENT OF THE EXPENDITURE ACTUALLY INCURRED BY M/S AT & S. AUSTRIA. 2.7. THAT THE HON'BLE JURISDICTIONAL HIGH COURT HAS CONSIDERED THE SIMILAR ISSUE IN THE CASE OF DUNLOP RUBBER CO. LTD. (SUPRA) AND HELD AS UNDER:- THAT THE TRIBUNAL WAS RIGHT IN ARRIVING AT THE VIE W THAT THE PAYMENT WAS FOR THE RECOUPMENT OF THE EXPENSES INCU RRED FOR THE TECHNICAL DATA FOR WHICH A RESEARCH DEPARTM ENT WAS MAINTAINED BY THE ASSESSEE-COMPANY IN LONDON. THE RESULT OF THE RESEARCH WAS FOR THE BENEFIT OF ALL C ONCERNED INCLUDING THE HEAD OFFICE AND THE SUBSIDIARY CONCER NS. IT WAS FOR THE SHARING OF THE EXPENSES OF THE RESEARCH WHICH WAS UTILIZED BY THE SUBSIDIARIES AS WELL AS THE HEA D OFFICE ORGANIZATION THAT THE PAYMENTS WERE MADE BY THE IND IAN COMPANY AND RECEIVED BY THE ASSESSEE-COMPANY. THE F ACT THAT AFTER THE TERMINATION WHAT WAS TO HAPPEN TO TH E INFORMATION GATHERED WAS NOT MENTIONED, INDICATED T HAT IT COULD NOT BE ANYTHING BUT SHARING OF THE EXPENSES. BUT THE FACT THAT THE TECHNICAL DATA WAS JOINTLY OBTAINED A ND THE EXPENSES WERE SHARED TOGETHER INDICATED THAT IT COU LD NOT BE TREATED AS INCOME. THE ACT THAT ONLY 0.67 PER CE NT OF THE ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 11 TURNOVER WAS ALLOWED AS RESEARCH CONTRIBUTION TO TH E ASSESSEE-COMPANY, WAS BECAUSE OF THE RESTRICTIONS IMPOSED BY THE GOVERNMENT. THEREFORE THE AMOUNTS RECEIVED BY THE ASSESSEE-COMPANY DID NOT CONSTITUTE INCOME ASSESSABLE TO TAX. THE ABOVE DECISION OF HON'BLE JURISDICTIONAL HIGH C OURT WAS ALSO RELIED UPON BY THE AUTHORITY FOR ADVANCE RULINGS IN THE CA SE OF CHOLAMANDALAM MS GENERAI INSURANCE CO. LTD. (SUPRA) , WHEREIN THEIR LORDSHIPS HELD AS UNDER:- THAT THE AMOUNT PAID BY THE APPLICANT COULD NOT BE SAID TO BE IN THE NATURE OF CONSIDERATION FOR OFFERING THE SERVIC ES OF I. THE PARTIES HAD ENTERED INTO A MUTUALLY BENEFICIAL AGRE EMENT, AND INCIDENTAL THERETO, THE APPLICANT REIMBURSE A PART OF THE SALARY OF THE EMPLOYEE PAYABLE BY HMFICL. WHAT THE APPLICANT PAID WENT TO REIMBURSEMENT OF THE COST BORNE BY HMFICL ON ACC OUNT OF EMPLOYMENT 1, THAT TOO, PARTLY. IN THIS PROCESS NO INCOME COULD BE SAID TO HAVE BEEN GENERATED WHICH ANSWERED THE DESC RIPTION OF FEES FOR TECHNICAL SERVICES 2.8. IN VIEW OF THE ABOVE DECISIONS OF HON'BLE JURI SDICTIONAL HIGH COURT AS WELL AS AUTHORITY FOR ADVANCE RULINGS, WE HOLD T HAT IN THE PROCESS OF REIMBURSEMENT OF EXPENDITURE, NO INCOME CAN BE SAID TO HAVE GENERATED REQUIRING DEDUCTION OF TAX AT SOURCE. SIN CE THERE WAS NO LIABILITY OF DEDUCTION OF TAX AT SOURCE, SECTION 40 (A)(I) OF THE ACT CANNOT BE INVOKED. ACCORDINGLY, GROUND NO. 2 OF THE ASSESS EES APPEAL IS ALLOWED. AS THE FACTS ARE SIMILAR FOR THE AY 2005-06 CONSIDE RING THE FACT THAT FOR THE AY 2004-05 THE AO HAS ACCEPTED THE CLAIM OF THE ASSESSEE THAT THE REIMBURSEMENT OF THE WARRANTY EXPENSES IS NOT LIABL E FOR TDS U/S 195 OF THE ACT AND AS THE REVENUE HAS NOT BEEN ABLE TO DIS LODGE THIS FINDING, THE FINDING OF CIT(A) DELETING THE DISALLOWANCE MAD ON ACCOUNT OF NON- DEDUCTION OF TDS IN RESPECT OF WARRANTY EXPENSES ST ANDS CONFIRMED. THIS ISSUE OF REVENUES APPEAL IS DISMISSED. SO FROM THE AFORESAID DISCUSSION, IT IS CLEAR THAT THE REIMBURSEMENT COST INCURRED BY THE ASSESSEE IS OUT OF THE PURVIEW OF T HE TDS PROVISION AS IT DOES NOT GENERATE ANY INCOME IN THE HANDS OF THE RECIPIE NT AND CONSEQUENTLY THE PROVISIONS OF SECTION 40(A)(IA) COULD NOT BE INVOKE D. HENCE THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 12 COMING TO ASSESSEEA APPEAL ITA NO.2305/KOL/2013 AY 04-05. 7. IN THIS APPEAL ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE ORDER PASSED BY THE LEARNED COMMISSION ER OF INCOME-TAX (APPEALS)[LD. CIT(APPEALS)] UNDER SECTION 250 OF THE INCOME-TAX ACT, 1961 (ACT), TO THE EXTENT PREJUDICIAL TO THE APPE LLANT, IS BAD IN LAW AND LIABLE TO BE QUASHED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(APPEALS) ERRED IN UPHOLDING THE DISALLOWANCE O F RS.10,128,788/- MADE BY THE LEARNED DEPUTY COMMISSIONER OF INCOME T AX [AO'], BEING REIMBURSEMENT OF REWORK COSTS BY THE APPELLANT TO A T&S AUSTRIA BY APPLYING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 3. THAT THE LD. CIT(APPEALS) ERRED IN UPHOLDING THE ACTION OF THE LD. AO BY CONFIRMING THAT, THE AFORESAID PAYMENT WAS IN TH E NATURE OF FEES FOR TECHNICAL SERVICES UNDER SECTION 9(1)(VII) OF THE A CT AND ACCORDINGLY, TAXES ARE REQUIRED TO BE DEDUCTED AT SOURCE. 4. THAT THE LD. CIT(APPEALS) ERRED IN CONFIRMING TH E ORDER OF THE AO HOLDING THAT, TAX WAS REQUIRED TO BE DEDUCTED AT SO URCE FROM THE IMPUGNED PAYMENT BY APPLYING THE PROVISIONS OF SECT ION 40(A)(IA) OF THE ACT. 5. THAT THE LD. CIT(APPEALS) AND THE LD. AO ERRED I N NOT FOLLOWING THE DECISION OF THE HON'BLE KOLKATA ITAT IN APPELLANTS OWN CASE ( ITA NO.S 1448 & 1449(KOL) OF 2008 DATED JULY 24,2009) FOR AY 2002-03 AND AY 2003-04, WHEREIN IT WAS HELD THAT REIMBURSEMENT OF INFORMATION TECHNOLOGY COSTS DOES NOT RESULT IN INCOME IN THE H ANDS OF THE RECIPIENT AN HENCE, THE PAYMENTS ARE ALLOWABLE DEDUCTIONS AND NOT FALL WITHIN THE MISCHIEF OF SECTION 40(A)(I) READ WITH SECTION 195. 4. THAT THE LD. AO ERRED IN CONSEQUENTLY LEVYING IN TEREST UNDER SECTION 234B OF THE ACT. 8. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE HAS C LAIMED THE EXPENSES OF RS.1,01,28,788/- IN THE FORM OF REIMBURSEMENT COST INCURRED BY AT & S AUSTRIA TOWARDS THE COST OF REPAIR / REMANUFACTURING OF DEF ECTIVE PRODUCTS. THE AO HELD THAT EXPENSES AS FEES FOR TECHNICAL SERVICES A S DEFINED UNDER SECTION 9(1)(VII) OF THE ACT, SO HE DISALLOWED THE SAID EXP ENSES FOR THE VIOLATION OF THE PROVISIONS OF SECTION 40(A)(I) OF THE ACT. THE AO A LSO RELIED ON THE JUDGMENT HONBLE DELHI TRIBUNAL IN THE CASE OF SAHARA AIRLIN ES LTD. VS DCIT( 2002) 83 ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 13 ITD 11, 41(DELHI) AND HONBLE ITAT HYDERABAD IN THE CASE OF MANNESMANN DEMAG LAUNCHHAMMER VS. CIT (1988) 26 ITD 198, 202-03( HYD.). AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE CIT(A ) WHO HAS UPHELD THE ORDER OF THE AO. 9. NOW AGGRIEVED ASSESSEE IS IN SECOND APPEAL BEFOR E US. THE LD AR SUBMITTED THAT THE DECISION OF THE HON'BLE KOLKATA ITAT IN APPELLANTS OWN CASE ( ITA NO.S 1448 & 1449(KOL) OF 2008 DATED JULY 24,2009) FOR AY 2002- 03 AND AY 2003-04, WHEREIN IT WAS HELD THAT REIMBUR SEMENT OF INFORMATION TECHNOLOGY COSTS DOES NOT RESULT IN INCOME IN THE H ANDS OF THE RECIPIENT AN HENCE, THE PAYMENTS ARE ALLOWABLE DEDUCTIONS AND NO T FALL WITHIN THE MISCHIEF OF SECTION 40(A)(I) READ WITH SECTION 195. ON THE O THER HAND, LD. DR SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 10. WE FIND FROM THE AFORESAID DISCUSSION AND SUBMI SSION OF THE ASSESSEE THAT THE FACTS HAVE ALREADY BEEN DECIDED BY THE HON BLE KOLKATA ITAT BENCH IN FAVOUR OF THE ASSESSEE IN THE CASE OF DCIT V. M/S AT&S INDIA PVT . LTD. IN ITA NO. 1262/KOL/2010, 186/KOL/2011, 2071/KOL/2010 & 779/KOL/2012 FOR AYS 2005-06, 2006-07 & 2007-08 VIDE DATED 29-01-201 5. THE RELEVANT PORTION OF THE ORDER IS EXTRACTED BELOW : 18. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND G ONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. A PERUSAL OF THE DEC ISION OF THE COORDINATE BENCH OF THIS TRIBUNAL REFERRED TO SUPRA FOR THE ASSESSMENT YEARS 2002-03 AND 2003-04 CLEARLY SHOWS THAT THE TR IBUNAL HAS TAKEN INTO CONSIDERATION THE AGREEMENT DATED 13.03.2001 B ETWEEN THE ASSESSEE AND AT & S AUSTRIA. FURTHER, SIMILARLY, HO NBLE KARNATAKA HIGH COURT IN A RECENT JUDGMENT IN THE CASE OF DIT V. SUN MICROSYSTEMS INDIA P. LTD. (2014) 369 ITR 63 (KARN) EXACTLY ON THE SIMILAR IS SUE INTERPRETING ARTICLE 7 OF THE DTAA BETWEEN INDIA AN D SINGAPORE, WHICH IS IDENTICALLY WORDED TO ARTICLE 7 OF DTAA BETWEEN IND IA AND AUSTRIA HELD THAT THE PARENT COMPANY HAS NOT MADE AVAILABLE TO T HE ASSESSEE THE TECHNOLOGY OR THE TECHNOLOGICAL SERVICES WHICH WAS REQUIRED TO PROVIDE THE DISTRIBUTION, MANAGEMENT AND LOGISTIC SERVICES. WE FURTHER NOTICED THAT IN THE SAID ORDER THE TRIBUNAL HAS TAKEN INTO CONSIDERATION THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF CIT V. ITA NO.1160 & 2305/KOL/2013 A.YS. 2008-09 & 2004- 05 DCIT CIR-11, KOL V. M/S AT & S INDIA PVT. LTD. PAGE 14 DUNLOP RUBBER CO. LIMITED (1983) 142 ITR 493 (CAL) AND IN THE SIMILAR CIRCUMSTANCES THAT OF THE ASSESSEE TO HOLD THAT THE REIMBURSEMENT OF THE EXPENDITURE DOES NOT GENERATE ANY INCOME IN THE HANDS OF THE RECIPIENT AND CONSEQUENTLY THERE WAS NO REQUIREMENT OF DEDUCTION OF TDS AND CONSEQUENTLY THE PROVISIONS OF SECTION 40(A )(IA) COULD NOT BE INVOKED. THE FACTS BEING IDENTICAL FOR THIS ASSESSM ENT YEAR, RESPECTFULLY FOLLOWING THE DECISION OF COORDINATE BENCH OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2002-0 3 AND 2003-04 REFERRED TO SUPRA, FINDING OF CIT(A) STANDS REVERSE D AND THE DISALLOWANCE AS MADE BY THE ASSESSING OFFICER IN RE SPECT OF THE REIMBURSEMENT OF THE PAYMENTS MADE TO AT & S AUSTRI A TO THE EXTENT OF RS.1,50,44,031/- STANDS DELETED. THIS ISSUE OF ASSE SSEES APPEAL IS ALLOWED. SINCE THE MATTER IS ALREADY COVERED IN FAVOUR OF AS SESSEE IN ITS OWN CASE BY THIS TRIBUNAL, WE CONCLUDE THE APPEAL IN FAVOUR OF ASSESSEE. 11. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED AND T HAT OF ASSESSEES IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 15/10/ 2015 SD/- SD/- (MAHAVIR SINGH) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) *DKP '#$- 15 /10/2015 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S AT & S INDIA PVT. LTD. 12A, INDSTRIAL AREA, NANGANGUD, MYSORE, KARNATAKA - 571301 2. /REVENUE- DCIT CIR-11, P-7, CHOWRINGHEE SQUARE, KOL KATA - 69 3.#-#./ 0 / CONCERNED CIT KOLKATA 4. 0- / CIT (A) KOLKATA 5.2 3455./, ./!, / DR, ITAT, KOLKATA 6.489:; / GUARD FILE. BY ORDER/ , /TRUE COPY/ /# ./!,