AC NIELSEN CORPORATION, MUMBAI V. DDIT (IT) 1(1), MUMBAI

ITA 1200/MUM/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0689 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 20-05-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 24-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , / BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND . , SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER . / ITA NO.1200/MUM/2014 / ASSESSMENT YEAR 2004-05 . / ITA NO.1201/MUM/2014 / ASSESSMENT YEAR 2005-06 . / ITA NO.1202/MUM/2014 / ASSESSMENT YEAR 2006-07 ACNIELSEN CORPORATION, C/O. NIELSEN (INDIA) PRIVATE LIMITED, 6 TH FLOOR, BLOCK-C, GODREJ IT PARK, 02 GODREJ BUSINESS DISTRICT, PHIROJSHANAGAR, LBS MARG, VIKHROLI (W), MUMBAI 400079 / VS. DY. DIRECTOR OF INCOME TAX (INTERNATIONAL TAX) 1(1), AAYKAR BHAVAN, MAHARSHI KARVE MARG, MUMBAI 400 079. ./ ./ PAN/GIR NO. : AAAEC 8632R ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY SHRI MADHUR AGARWAL RESPONDENT BY MS. S.PADMAJA ' # $ / DATE OF HEARING : 20/05/2015 ' # $ / DATE OF PRONOUNCEMENT : 20/05/2015 / O R D E R PER I.P.BANSAL, J.M: ALL THESE APPEALS ARE FILED BY THE ASSESSEE AND TH EY ARE DIRECTED AGAINST THREE SEPARATE ORDERS PASSED BY LD. CIT(A)-10, MUMB AI, DATED 30/09/2013 FOR ITA NO.1200-1202/MUM/2014 A.Y.2004-05 TO 2006-07 2 ASSESSMENT YEARS 2004-05, 2005-06 AND 2006-07. GR OUNDS OF APPEAL IN ALL THESE APPEALS ARE IDENTICAL EXCEPT DIFFERENCE IN FI GURES. GROUNDS OF APPEAL FOR A.Y. 2004-05 READ AS UNDER: GROUND NO.1: LEVY OF PENALTY UNDER SECTION 271(1)( C): 1.1 THE LEARNED CIT(A) ERRED IN CONFIRMING PENALTY UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT, 1961 (THE ACT) OF RS.1,16,51,874 ON THE ALLEGED GROUND THAT INACCURATE PARTICULARS OF INCOME WERE FURNISHED. 1.2 THE LEARNED CIT(A) ERRED IN OBSERVING THAT THE APPELLANT DID NOT ADDUCE EVIDENCE / DOCUMENTS WHILE FILING THE RETURN OF INC OME FOR MAKING THE ASSERTION. HE FURTHER ERRED IN OBSERVING THAT THE APPELLANT DI D NOT DISCLOSE ITS TRUE AND CORRECT INCOME WHILE FILING THE RETURN OF INCOME. 1.3 THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE DETAILED SUBMISSIONS MADE BY THE APPELLANT. FOR OTHER ASSESSMENT YEARS THE FIGURES ARE AS UNDER : ASSESSMENT YEAR AMOUN T -------------------- ---------- 2005-06 RS. 1,77,96,519 2006-07 R S. 1,75,20,159 2. IT WAS SUBMITTED BEFORE US THAT THE QUANTUM ADDI TION IN RESPECT OF ALL THE ABOVE MENTIONED ASSESSMENT YEARS WAS SUBJECT MA TTER OF CONSIDERATION BEFORE THE TRIBUNAL IN THE APPEALS FILED BY THE ASS ESSEE AND THE SAME HAVE BEEN DECIDED VIDE CONSOLIDATED ORDER DATED 8/8/201 4 IN ITA NO.1901 TO 1903/MUM/2010. COPY OF THE SAID ORDER WAS PLACED O N OUR RECORD AND IT WAS SUBMITTED THAT THE IMPUGNED ADDITION IN RESPECT OF WHICH THE IMPUGNED PENALTY IS LEVIED HAVE BEEN SET ASIDE BY THE TRIBU NAL TO THE FILE OF AO WITH A DIRECTION TO EXAMINE THE ISSUE AFRESH BY DULY CONSI DERING THE SUBMISSIONS MADE BY THE ASSESSEE, THE RELEVANT CASE LAWS AND T AKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. COPY OF THE SAID ORDER WAS FI LED BEFORE US AND WAS ALSO GIVEN TO LD. DR, WHO DID NOT CONTROVERT THE AFOREME NTIONED SUBMISSIONS MADE BY LD. AR. THE RELEVANT OBSERVATIONS OF THE TRIBUN AL ARE AS UNDER: 8. THE EXPRESSIONS 'ROYALTY' AND 'FEES FOR INCLUDE D SERVICES' HAVE BEEN GIVEN DISTINCT MEANING IN THE INDO US TREATY. WE HAVE ALR EADY NOTICED THAT THE TAX ITA NO.1200-1202/MUM/2014 A.Y.2004-05 TO 2006-07 3 AUTHORITIES WERE NOT ABLE TO COME TO A CONCLUSION A S TO WHETHER THE CONSIDERATION RECEIVED BY THE ASSESSEE COMPANY WOULD FALL WITHIN THE MEANING OF 'ROYALTY' OR 'FEES FOR INCLUDED SERVICES', EVEN THOUGH THERE ARE PLETHORA OF CASE LAWS EXPLAINING BOTH THE TERMS. HENCE, FROM THE FOREGOIN G DISCUSSIONS, WE ARE OF THE VIEW THAT THE TAX AUTHORITIES HAVE NOT EXAMINED THE IMPUGNED ISSUE IN PROPER PERSPECTIVE, I.E., THE MATTER HAS NOT BEEN EXAMINED IN THE CONTEXT OF INDO-US TREATY BY CONSIDERING THE MEANING OF VARIOUS TERMS USED THEREIN. AS STATED EARLIER, THE MEANING TO BE ASCRIBED TO VARIOUS TERM S USED IN THE TREATY HAS BEEN THE BONE OF CONTENTION IN VARIOUS CASE LAWS AND WE NOTICE THAT THE TAX AUTHORITIES HAVE NOT CONSIDERED THE APPLICABLE CASE LAWS. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE IMPUGNED MATTER REQUIRES FRESH EXAMINATION AT THE END OF THE ASSESSING OFFICER. WHEN WE EXPRESSED OUR VIEW TO BO TH THE PARTIES, THEY ALSO ACCEPTED THE FACT THAT THE MATTER HAS NOT BEEN EXAM INED BY THE TAX AUTHORITIES IN PROPER PERSPECTIVE AND ACCORDINGLY AGREED THAT THE MATTER REQUIRES FRESH CONSIDERATION AT THE END OF THE ASSESSING OFFICER. 9. ACCORDINGLY, WE SET ASIDE THE ORDERS PASSED BY LD. CIT(A) IN ALL THE THREE YEARS AND RESTORE THE MATTER TO THE FILE OF THE ASS ESSING OFFICER WITH THE DIRECTION TO EXAMINE THE ISSUE AFRESH BY DULY CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE, RELEVANT CASE LAWS AND TAKE APPROPRIATE D ECISION IN ACCORDANCE WITH THE LAW. 3. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, WE SET ASIDE THE IMPUGNED PENALTIES IN RESPECT OF ALL THE YEARS AND RESTORE THESE APPEALS TO THE FILE OF AO WITH A DIRECTION RE-ADJUDICATE THE I SSUE REGARDING LEVY OF CONCEALMENT PENALTY AFTER DECIDING QUANTUM AS PER A FOREMENTIONED ORDER OF THE TRIBUNAL AND AFTER GIVING THE ASSESSEE A REASON ABLE OPPORTUNITY OF HEARING. WITH THESE OBSERVATIONS, APPEALS FILED BY THE ASSES SEE ARE TREATED TO BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. 4. IN THE RESULT, ALL THE APPEALS FILED BY THE ASSE SSEE ARE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 20/05/2015 ' )* + , 20/05/2015 ' SD/- SD/- ( . / D.KARUNAKARA RAO ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER ) MUMBAI; + DATED 20/05/2015 ITA NO.1200-1202/MUM/2014 A.Y.2004-05 TO 2006-07 4 ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. /# ( ) / THE CIT(A)- 4. /# / CIT 5. 01 #23 , $ 23 , ) / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, 0# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ) / ITAT, MUMBAI . . ./ VM , SR. PS