DDIT (IT) 1(1), MUMBAI V. AKTIESELSKABET DAMPSKIBSSELSKABET SEVENDBORG, MUMBAI

ITA 1809/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79152 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: L
• Next Hearing Date: 11-06-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOMANATH S UKKALI
• Keywords: Double taxation relief; Validity of assessment; Reason to believe
• Section: 143(3)

Judgement Text

L IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI .. , , BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIJAY PAL RAO, JM ./ I.T.A. NO.1809/ MUM/2012 ( / ASSESSMENT YEAR : 2003-2004 ASST. DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) 1(1), ROOM NO. 117, SCINDIA HOUSE, IST FLOOR, BALLARD ESTATE, N.M. ROAD, MUMBAI 400 038. / VS. M/S AKTIESELSKABET DAMPSKIBSSELSKABET SVENDBORG, C/O MAERSK INDIA PVT. LTD., EMPIRE INDUSTRIES COMPLEX, 414, SENAPATI BAPAT MARG, LOWER PAREL, MUMBAI 400 013. ./ PAN : AAOCS0134Q ( ! / APPELLANT ) .. ( '#! / RESPONDENT ) A PPELLANT BY SHRI SOMANATH S. UKKALI R E SPONDENT BY : SHRI PORUS KAKA ' ( / DATE OF HEARING : 11-06-2014 ' ( / DATE OF PRONOUNCEMENT : 18/6/2014 [ / O R D E R PER P.M. JAGTAP, A.M . : .. , THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) - 10, MUMBAI DATED 29-09-2011 AND THE GROUNDS RAISED BY THE REVENUE THEREIN READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE REASSESSME NT PROCEEDINGS ARE NOT VALID AS IT COULD NOT BE SAID THAT THERE WAS ES CAPEMENT OF INCOME, WHEREAS, WHAT IS ONLY REQUIRED AT THE TIME OF REOPE NING THE PROCEEDINGS ITA 1809/M/12 2 IS TO HAVE REASON TO BELIEVE THAT INCOME HAD ESCA PED AND THIS REASON TO BELIEVE WAS VERY MUCH THERE AT THE TIME OF REOP ENING OF ASSESSMENT. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT HOLDING THAT PAYMENTS RECEI VED BY THE ASSESSEE ARE IN THE NATURE OF ROYALTY OR FEES FOR TECHNICAL SERVICES AS PER SECTION 9(1)(VI) & (VII) OF THE I.T. ACT AS WELL AS PER ART ICLE 13(4) OF DTAA. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS REGARDS THE ISSUE R AISED IN GROUND NO. 2, IT IS OBSERVED THAT THE AMOUNT RECEIVED FROM M/S MAERSK I NDIA PRIVATE LIMITED (MIPL), M/S MAERSK LOGISTICS INDIA LIMITED (MLIL) A ND M/S SAFMARINE INDIA PRIVATE LIMITED (SIPL) TOWARDS THEIR SHARE OF IT GL OBAL PORTFOLIO TRACKING SYSTEM WAS BROUGHT TO TAX BY THE A.O. IN THE HANDS OF THE ASSESSEE COMPANY IN INDIA TO THE EXTENT OF RS. 7,49,84,869/- (50% OF RS. 14,99,69,738/-) IN THE ASSESSMENT COMPLETED U/S 143(3) R.W.S. 147 OF THE A CT AND BALANCE 50% AMOUNT WAS BROUGHT TO TAX IN THE HANDS OF DANISH CO MPANY DAMPSKIBSSELSKABET AF 1912 AKTIESSELSKAB. ON APPEAL , THE LD. CIT(A) HOWEVER DELETED THE ADDITION MADE BY THE A.O . ON THIS ISSUE FOLLOWING INTER ALIA THE TRIBUNALS ORDER IN THE CA SE OF DAMPSKIBSSELSKABET AF 1912 AKTIESSELSKAB FOR ASSESS MENT YEARS 2000-01 TO 2003-04 RENDERED VIDE ITS ORDER DATED 11 -6-2010 PASSED IN ITA NO. 2083, 2084,2085/MUM/09 WHEREIN TH E SIMILAR ADDITIONS MADE BY THE A.O. WERE DELETED BY THE LD. CIT(A). 6. AT THE TIME OF HEARING BEFORE US, THE LD. REPRES ENTATIVES OF BOTH THE SIDES HAVE AGREED THAT THE SIMILAR ADDITIO NS WERE MADE BY THE A.O. IN THE ASSESSMENTS ORIGINALLY COMPLETED IN THE CASE OF THE ASSESSEE U/S 143(3) OF THE ACT FOR THREE YEARS INCLUDING THE YEAR UNDER CONSIDERATION I.E 2003-04 AND THE SAME H AVE ALREADY BEEN DELETED BY THE TRIBUNAL VIDE ITS COMMON ORDER DATED 31-8- 2012 IN ITA NO. 2080 TO 2082/MUM/09 FOLLOWING THE D ECISION OF THE CO-ORDINATE BENCH IN THE CASE OF DAMPSKIBSSELSK ABET AF 1912 ITA 1809/M/12 3 AKTIESSELSKAB RENDERED VIDE ITS COMMON ORDER DATED 11-6-2010 (SUPRA). THE COPIES OF THE RELEVANT ORDERS OF THE T RIBUNAL ARE ALSO PLACED ON RECORD WHICH CLEARLY SHOW THAT THE SIMILA R ADDITION MADE IN THE CASE OF DAMPSKIBSSELSKABET AF 1912 AKTI ESSELSKAB ON ACCOUNT OF AMOUNT RECEIVED TOWARDS IT GLOBAL PORTFO LIO TRACKING SYSTEM WAS DELETED BY THE TRIBUNAL VIDE ITS ORDER D ATED 11-6-2010 (SUPRA) FOR THE FOLLOWING REASONS GIVEN IN PARA 14 TO 17 AND 23 OF ITS ORDER:- 14. WE WILL FIRST DEAL WITH THE QUESTION AS TO WHE THER THE RECEIPT IN QUESTION CAN BE SAID TO BE FTS. THE DEFI NITION OF FTS BOTH UNDER THE DTAA AS WELL AS UNDER EXPLN.-2 T O SEC.9(L)(VII) OF THE ACT HAS ALREADY BEEN REFERRED TO EARLIER. THE SUBSTANCE OF THE DEFINITION IS THAT IT REFERS T O A PAYMENT IN CONSIDERATION FOR THE SERVICES OF MANAGERIAL, TE CHNICAL OR CONSULTANCY NATURE. BUT IT SHOULD NOT BE A PAYMENT TO AN EMPLOYEE OF THE PERSON MAKING PAYMENT. IN THAT CASE IT WOULD BECOME SALARY. TWO THINGS ARE THUS CLEAR, VIZ , (I) THAT THERE SHOULD BE AN AGREEMENT TO ENGAGE/UTILISE TECH NICAL SERVICE AND A PERSON UNDERTAKING TO RENDER THEM; (I I) IF THERE IS A CONTRACT OF EMPLOYMENT AND THE EMPLOYEE RENDERS TECHNICAL SERVICE UNDER A CONTRACT OF EMPLOYMENT TH EN THE PAYMENT OF REMUNERATION FOR SUCH SERVICES ARE OUTSI DE THE PURVIEW OF FEES FOR TECHNICAL SERVICES. 15. THE ASSESSEE MAINTAINED A GLOBAL TELECOMMUNICAT ION FACILITY, CAPABLE OF SUPPORTING COMMUNICATION FACIL ITY BETWEEN ITSELF AND ITS AGENTS IN VARIOUS COUNTRIES. THE ABOVE FACILITY RUN ON A COMBINATION OF MAINFRAME AND NON- MAINFRAME SERVERS LOCATED AT DENMARK. THESE SYSTEMS ARE AN INTEGRAL PART OF INTERNATIONAL SHIPPING BUSINESS . THE SYSTEMS COMPRISE OF BOOKING AND COMMUNICATION SOFTW ARE, HARDWARE AND DATA COMMUNICATION NETWORK. IT ENABLES CO- ORDINATION OF CARGOES AND PORTS OF CALL FOR THE ASS ESSEE FLEET. THE EXPENSES INCURRED BY THE ASSESSEE ARE IN RESPEC T OF SYSTEMS MAINLY INCLUDE NETWORK COSTS, DATA COMMUNIC ATION, DATA PRODUCTION, DATA PROCESSING COSTS ETC. WITHOUT THESE SYSTEMS THE INTERNATIONAL SHIPPING BUSINESS CANNOT BE CONDUCTED NOR WOULD THE AGENTS OF THE ASSESSEE ACRO SS THE WORK BE ABLE TO DISCHARGE THEIR ROLE AS AGENTS OF T HE ASSESSEE. THIS FACILITY ENABLES ITS AGENTS ACROSS T HE WORLD TO ACCESS SEVERAL INFORMATION LIKE TRACKING OF CARGO O F A CUSTOMER, TRANSPORTATION SCHEDULE, CUSTOMER INFORMA TION, DOCUMENTATION SYSTEM AND SEVERAL OTHER INFORMATION WHICH ITA 1809/M/12 4 WE HAVE ALREADY SET OUT IN THE EARLIER PART OF THIS ORDER. THE COST FOR SETTING UP THIS GLOBAL TELECOMMUNICATION F ACILITY IS SHARED BETWEEN THE ASSESSEE AND ITS AGENTS ACROSS T HE WORLD. WE HAVE ALREADY SEEN THE RELEVANT CLAUSE IN THE AGREEMENT BETWEEN THE ASSESSEE AND THE AGENT AND A REFERENCE TO THE RATE SHEET ATTACHED TO THE AGENCY AGREEMENT. IN RESPECT OF SUCH COST SHARING THE ASSE SSEE HAS RAISED INVOICE ON ITS AGENTS MTL, MLIL, SIPL. THE ASSESSEES CHARTERED ACCOUNTANTS AT DENMARK, M/S. K PMG HAVE DULY CERTIFIED THE BASIS OF COST SHARING BETWE EN THE ASSESSEE AND HAVE OPINED THAT IT WAS ONLY REIMBURSE MENT OF COST AND NO PROFIT ELEMENT IS INVOLVED IN THE USE O F THE FACILITY BY THE AGENTS FOR FACILITY PROVIDED BY THE ASSESSEE. THE ASSESSEE HAS ALSO GIVEN A DECLARATION THAT THER E IS NO MARK UP TO THE COSTS AND ONLY ACTUAL COSTS ARE RECO VERED. ALL THE ABOVE DOCUMENTS HAVE BEEN TOTALLY DISREGARDED B Y THE CIT(A). THERE IS NO FINDING BY THE AO OR CIT(A) THA T THERE WAS A PROFIT ELEMENT EMBEDDED IN THE PAYMENTS RECEI VED FROM THE ASSESSEE FROM ITS AGENTS IN INDIA. 16. THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION OF THE HONBLE MADRAS HIGH COURT I N THE CASE OF SKYCELL COMMUNICATIONS LTD. 251 ITR 53 (MAD ). IN THE AFORESAID CASE THE HONBLE COURT HAD AN OCCASIO N TO EXAMINE THE DEFINITION OF FEE FOR TECHNICAL SERVIC ES IN THE CONTEXT OF PAYMENT OF FEES BY A CELLULAR/MOBILE PHO NE SUBSCRIBER TO THE OPERATOR OF THE CELLULAR/MOBILE P HONE FACILITY. THE FOLLOWING WERE ITS OBSERVATIONS: THUS WHILE STATING THAT TECHNICAL SERVICE WOULD INCLUDE MANAGERIAL AND CONSULTANCY SERVICE, THE LEGISLATURE HAS NOT SET OUT WITH PRECISION AS TO WH AT WOULD CONSTITUTE TECHNICAL SERVICE TO RENDER IT TECHNICAL SERVICE. THE MEANING OF THE WORD TECHNICAL AS GIVEN IN THE NEW OXFORD DICTIONARY I S ADJECTIVE 1. OF OR RELATING TO A PARTICULAR SUBJECT , ART OR CRAFT OR ITS TECHNIQUES : TECHNICAL TERMS (ESPEC IALLY OF A BOOK OR ARTICLE) REQUIRING SPECIAL KNOWLEDGE T O BE UNDERSTOOD A TECHNICAL REPORT. 2. OF INVOLVING, OR CONCERNED WITH APPLIED AND INDUSTRIAL SCIENCES : AN IMPORTANT TECHNICAL ACHIEVEMENT. 3. RESULTING FROM MECHANICAL FAILURE A TECHNICAL FAULT. 4. ACCORDING TO A STRICT APPLICATION OR INTERPRETATION OF THE LAW OR THE RULES THE ARREST WAS A TECHNICAL VIOLATION OF THE T REATY. HAVING REGARD TO THE FACT THAT THE TERM IS REQUIRED TO BE UNDERSTOOD IN THE CONTEXT IN WHICH I T IS USED, FEE FOR TECHNICAL SERVICES COULD ONLY BE ME ANT TO COVER SUCH THINGS TECHNICAL AS ARE CAPABLE OF BE ING ITA 1809/M/12 5 PROVIDED BY WAY OF SERVICE FOR A FEE. THE POPULAR MEANING ASSOCIATED WITH TECHNICAL IS INVOLVING O R CONCERNING APPLIED AND INDUSTRIAL SCIENCE. IN THE MODEM DAY WORLD, ALMOST EVERY FACET OF ONES LIFE IS LINKED TO SCIENCE AND TECHNOLOGY INAS MUCH AS NUMEROUS THINGS USED OR RELIED UPON IN EVERYDAY LIFE IS THE RESULT OF SCIENTIFIC AND TECHNOLOGICAL DEVELOPMENT. EVERY INSTRUMENT OR GADGET THAT IS USE D TO MAKE LIFE EASIER IS THE RESULT OF SCIENTIFIC INV ENTION OR DEVELOPMENT AND INVOLVES THE USE OF TECHNOLOGY. ON THAT SCORE, EVERY PROVIDER OF EVERY INSTRUMENT OR FACILITY USED BY A PERSON CANNOT BE REGARDED AS PROVIDING TECHNICAL SERVICE. WHEN A PERSON HIRES A TAXI TO MOVE FROM ONE PLACE TO ANOTHER, HE USES A PRODUCT OF SCIENCE AND TECHNOLOGY, VIZ., AN AUTOMOBILE. IT CANNOT ON THAT GROUND BE SAID THAT THE TAXI DRIVER WHO CONTROLS TH E VEHICLE, AND MONITORS ITS MOVEMENT IS RENDERING A TECHNICAL SERVICE TO THE PERSON WHO USES THE AUTOMOBILE. SIMILARLY, WHEN A PERSON TRAVELS BY TRA IN OR IN AN AEROPLANE, IT CANNOT BE SAID THAT THE RAIL WAYS OR AIRLINES IS RENDERING A TECHNICAL SERVICE TO THE PASSENGER AND, THEREFORE, THE PASSENGER IS UNDER AN OBLIGATION TO DEDUCT TAX AT SOURCE ON THE PAYMENTS MADE TO THE RAILWAY OR THE AIRLINE FOR HAVING USED IT FOR TRAVELLING FROM ONE DESTINATION TO ANOTHER. WHEN A PERSON TRAVELS BY BUS, IT CANNOT BE SAID THAT THE UNDERTAKING WHICH OWNS THE BUS SERVICE IS RENDERING TECHNICAL SERVICE TO THE PASSENGER AND, THEREFORE, THE PASSENGER MUST DEDUCT TAX AT SOURCE ON THE PAYMENT MADE TO THE BUS SERVICE PROVIDER, FOR HAVING USED T HE BUS. THE ELECTRICITY SUPPLIED TO A CONSUMER CANNOT, ON THE GROUND THAT GENERATORS ARE USED TO GENERATE ELECTRICITY, TRANSMISSION LINES TO CARRY THE POWER, TRANSFORMERS TO REGULATE THE FLOW OF CURRENT, METER S TO MEASURE THE CONSUMPTION, BE REGARDED AS AMOUNTING TO PROVISION OF TECHNICAL SERVICES TO THE CONSUMER RESULTING IN THE CONSUMER HAVING TO DEDUCT TAX AT SOURCE ON THE PAYMENT MADE FOR THE POWER CONSUMED AND REMIT THE SAME TO THE REVENUE. THE COURT FINALLY CONCLUDED AS FOLLOWS: INSTALLATION AND OPERATION OF SOPHISTICATED EQUIPMENTS WITH A VIEW TO EARN INCOME BY ALLOWING CUSTOMERS TO AVAIL OF THE BENEFIT OF THE USER OF SU CH ITA 1809/M/12 6 EQUIPMENT DOES NOT RESULT IN THE PROVISION OF TECHN ICAL SERVICE TO THE CUSTOMER FOR A FEE. WHEN A PERSON DECIDES TO SUBSCRIBE TO A CELLULAR TELEPHONE SERVICE IN ORDER TO HAVE THE FACILITY OF BEING ABLE TO COMMUNICATE WITH OTHERS, HE DOES NOT CONTRA CT TO RECEIVE A TECHNICAL SERVICE. WHAT HE DOES AGREE TO IS TO PAY FOR THE USE OF THE AIRTIME FOR WHICH HE PAYS A CHARGE. THE FACT THAT THE TELEPHONE SERVICE PROVIDE R HAS INSTALLED SOPHISTICATED TECHNICAL EQUIPMENT IN THE EXCHANGE TO ENSURE CONNECTIVITY TO ITS SUBSCRIBER, DOES NOT ON THAT SCORE, MAKE IT PROVISION OF A TECHNICAL SERVICE TO THE SUBSCRIBER. THE SUBSCRIBER IS NOT CONCERNED WITH THE COMPLEXITY OF THE EQUIPMENT INSTALLED IN THE EXCHANGE, OR THE LOCATION OF THE B ASE STATION. ALL THAT HE WANTS IS THE FACILITY OF USING THE TELEPHONE WHEN HE WISHES TO, AND BEING ABLE TO GET CONNECTED TO THE PERSON AT THE NUMBER TO WHICH HE DESIRES TO BE CONNECTED. WHAT APPLIES TO CELLULAR MOBILE TELEPHONE IS ALSO APPLICABLE IN FIXED TELEPH ONE SERVICE. NEITHER SERVICE CAN BE REGARDED AS TECHNI CAL SERVICE FOR THE PURPOSE OF SECTION 194J OF THE ACT.. ..AT THE TIME THE INCOME-TAX ACT WAS ENACTED IN THE YEAR 1961, AS ALSO AT THE TIME WHEN EXPLANATION 2 TO SECTION 9(L)(VII) WAS INTRODUCED BY THE FINANCE (NO. 2) ACT, WITH EFFECT FROM APRIL 1, 1977, THE PRODUCT S OF TECHNOLOGY HAD NOT BEEN IN SUCH WIDE USE AS THEY AR E TODAY. ANY CONSTRUCTION OF THE PROVISIONS OF THE AC T MUST BE IN THE BACKGROUND OF THE REALITIES OF DAY-T O- DAY LIFE IN WHICH THE PRODUCTS OF TECHNOLOGY PLAY A N IMPORTANT ROLE IN MAKING LIFE SMOOTHER AND MORE CONVENIENT. SECTION 1 94J, AS ALSO EXPLANATION 2 IN SECTION 9(L)(VII) OF THE ACT WERE NOT INTENDED TO C OVER THE CHARGES PAID BY THE AVERAGE HOUSE-HOLDER OR CONSUMER FOR UTILISING THE PRODUCTS OF MODEM TECHNOLOGY, SUCH AS, USE OF THE TELEPHONE FIXED OR MOBILE, THE CABLE F,V., THE INTERNET, THE AUTOMOBI LE, THE RAILWAY, THE AEROPLANE, CONSUMPTION OF ELECTRIC AL ENERGY, ETC. SUCH FACILITIES WHICH WHEN USED BY INDIVIDUALS ARE NOT CAPABLE OF BEING REGARDED AS TECHNICAL SERVICE CANNOT BECOME SO WHEN USED BY FINNS AND COMPANIES. THE FACILITY REMAINS THE SAME WHOEVER THE SUBSCRIBER MAY BE - INDIVIDUAL, FIRM OR COMPANY. TECHNICAL SERVICE REFERRED IN SECTION 9(L)(VII) CONTEMPLATES RENDERING OF A SERVICE TO THE PAYER OF ITA 1809/M/12 7 THE FEE. MERE COLLECTION OF A FEE FOR USE OF A ST ANDARD FACILITY PROVIDED TO ALL THOSE WILLING TO PAY FOR I T DOES NOT AMOUNT TO THE FEE HAVING BEEN RECEIVED FOR TECHNICAL SERVICES. 17. THE PAYMENTS RECEIVED BY THE ASSESSEE ARE FOR P ROVIDING A FACILITY TO ITS AGENTS. THE PAYMENT RECEIVED IS N OTHING BUT A PAYMENT BY WAY OF REIMBURSEMENT OF THE COST FOR P ROVIDING A PARTICULAR FACILITY. THE ASSESSEE IS IN THE BUSIN ESS OF SHIPPING AND NOT IN THE BUSINESS OF PROVIDING ANY T ECHNICAL SERVICE. WE ARE OF THE VIEW THAT THIS RATIO OF HON BLE MADRAS HIGH COURT WILL APPLY TO THE FACTS OF THE PRESENT C ASE. THE ASSESSING OFFICER IN COMING TO THE CONCLUSION THAT THE PAYMENT WAS FOR FEE FOR TECHNICAL SERVICES HAS RELI ED ON THE FACT THAT THERE HAS BEEN USE OF SOPHISTICATED EQUIP MENTS. THIS BY ITSELF WILL NOT BE SUFFICIENT TO HOLDING TE CHNICAL SERVICES BEING RENDERED. ALL THE ABOVE FEATURES ENA BLES BETTER AND EFFICIENT CONDUCT OF BUSINESS. IT IS DUE TO IMPROVED TECHNOLOGY. THAT DOES NOT MEAN THAT THE AS SESSEE IS PROVIDING TECHNICAL SERVICES. THE ASSESSEE AS WE LL AS ITS AGENTS ARE THE BENEFICIARIES OF SUCH IMPROVED TECHN OLOGY. THE ASSESSEE IS NOT THE OWNER OF ANY TECHNOLOGY TO PROVIDE THEM FOR A FEE TO PROSPECTIVE USER. THEY ARE THEMSE LVES CONSUMERS OF THE TECHNOLOGY. 23. THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED ON THE DECISION IN THE CASE OF CIT VS. BHARATI CELLULAR LT D., 319 ITR 139(DEL) WHEREIN THE HONBLE DELHI HIGH COURT H AD TAKEN THE VIEW THAT TO CALL A PAYMENT AS FEE FOR TE CHNICAL SERVICE, THE PAYMENT SHOULD BE FOR USE OF HUMAN SKI LLS AND WHERE ONLY MACHINES PERFORM OR GIVE SOME SERVICES T HAT WOULD NOT BE ENOUGH TO CALL A PAYMENT A PAYMENT FOR FTS. THE LEARNED DR. SUBMITTED THAT THE BASIC DATA IS EN TERED BY HUMAN EFFORT AND THEREFORE THE PAYMENT SHOULD BE TR EATED AS FTS. WE ARE OF THE VIEW THAT THE ARGUMENT OF THE LEARNED D.R. CANNOT BE ACCEPTED BECAUSE ULTIMATELY THE MACH INE ONLY PERFORMS AND NO HUMAN ELEMENT IS INVOLVED. THE LEARNED D.R. ALSO SUBMITTED THAT THE HUGE COST FOR INSTALLATION OF THE SYSTEM AND THE HUGE PAYMENT MAD E BY THE ASSESSEE BY ITSELF IS AN INDICATION THAT THE PA YMENT IS FTS. IN THIS REGARD WE NOTICE THAT THE PERCENTAGE O F PAYMENT RECEIVED BY THE ASSESSEE TOWARDS REIMBURSEMENT COMP ARED TO THE TOTAL RECEIPTS IN THE FORM OF FREIGHT ETC., FROM SHIPPING BUSINESS IN INDIA IS LESS THAN 1%. THUS THE PLEA OF THE LEARNED D.R. IN THIS REGARD IS WITHOUT ANY MERIT. W E THEREFORE HOLD THAT THE RECEIPT IN QUESTION CANNOT BE CONSIDERED AS FEES FOR TECHNICAL SERVICES RENDERED. ITA 1809/M/12 8 7. FOLLOWING THE ORDER DATED 11-6-2010 (SUPRA) PASS ED IN THE CASE OF DAMPSKIBSSELSKABET AF 1912 AKTIESSELSKAB, T HE TRIBUNAL HAS ALSO DELETED A SIMILAR ADDITION MADE BY THE A.O . ON ACCOUNT OF AMOUNT RECEIVED TOWARDS SHARED IT GLOBAL PORTFOLIO TRACKING SYSTEM IN THE ASSESSMENT ORIGINALLY COMPLETED U/S 1 43(3) OF THE ACT IN THE CASE OF THE ASSESSEE FOR A.Y. 2002-03 AS WELL AS 2003- 04. RESPECTFULLY FOLLOWING THESE ORDERS OF THE TRI BUNAL ON A SIMILAR ISSUE, WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A) DELETING THE ADDITION MADE BY THE A.O. ON ACCOUNT O F AMOUNT RECEIVED BY THE ASSESSEE TOWARDS SHARED IT GLOBAL P ORTFOLIO TRACKING SYSTEM BY TREATING THE SAME AS FEES FOR TE CHNICAL SERVICES AND DISMISS GROUND NO. 2 OF THE REVENUES APPEAL. 8. KEEPING IN VIEW OUR DECISION RENDERED ON THE ISS UE RAISED IN GROUND NO. 2 UPHOLDING THE ORDER OF THE LD. CIT(A) DELETING THE ADDITION OF RS. 7,49,84,869/- MADE BY THE A.O. ON A CCOUNT OF AMOUNT RECEIVED BY THE ASSESSEE TOWARDS SHARED IT G LOBAL PORTFOLIO TRACKING SYSTEM, THE ISSUE RAISED IN GROU ND NO. 1 RELATING TO THE VALIDITY OF ASSESSMENT MADE BY THE A.O. U/S 143(3) R.W.S. 147 OF THE ACT HAS BECOME INFRUCTUOUS OR ACA DEMIC. WE THEREFORE DO NOT CONSIDER IT NECESSARY OR EXPEDIENT TO ADJUDICATE UPON THE SAME. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JUNE, 2014 . ' 5 6 18/6/2014 ' SD/- SD/- (VIJAY PAL RAO) (P.M. JAGTAP ) JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 6 DATED 18/6/2014 [ ITA 1809/M/12 9 \ .../ RK , SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT. 3. : () / THE CIT(A)10 MUMBAI. 4. : / DIT 1, MUMBAI 5. '> , ( > , / DR, ITAT, MUMBAI L BENCH 6. A / GUARD FILE. / BY ORDER, # ' //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI