M/s. Bramhacorp Hotels & Resorts Ltd., Pune V. Dy. Director of IT, (Int. Taxation)-I, Pune

ITA 2111/PUN/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93822 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 29-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Business income; Double taxation relief; Permanent establishment; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE: SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO S . 2110 & 2111 /PN/20 12 ASSESSMENT YEAR : 20 0 9 - 10 M/S. BRAMHACORP HOTELS & RESORTS LTD., C/O HOTEL LE-MERIDIEN, RAJA BAHADUR MILL ROAD, PUNE-411001 VS. DEPUTY DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION-I, PUNE (APPELLANT) (RESPONDENT) PAN NO. AAACB7054L ITA NOS. 2377 & 2378/PN/2012 ASSESSMENT YEAR S : 200 9 - 10 & 2010 - 11 DEPUTY DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION-I, PUNE VS. M/S. BRAMHACORP HOTELS & RESORTS LTD., (EARLIER KNOWN AS BRAHMA LUXURY HOTELS LIMITED) LE-MERIDIEN HOTEL, 100/01, RAJA BAHADUR MILL ROAD, PUNE-411001 (APPELLANT) (RESPONDE NT) PAN NO. AAACB7054L ASSESSEE BY: SHRI KISHOR PHADKE REVENUE BY: SHRI A.K. MODI DATE OF HEARING : 15-06-2015 DATE OF PRONOUNCEMENT : 19-06-2015 ORDER PER VIKAS AWASTHY, JM:- THESE FOUR APPEALS HAVE BEEN FILED BY THE ASSESSEE AND T HE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)- IT/TP, PUNE DATED 31-08-2012 COMMON FOR ASSESSMENT YE ARS 2009-10 2 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 AND 2010-11. ITA NO. 2110 AND 2111 HAVE BEEN FILED BY T HE ASSESSEE ASSAILING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN HOLDING THAT THE ARCHITECTURAL SERVICES RENDERED BY M/ S. ANDY FISHER WORKSHOP PTE. LTD., SINGAPORE AND INTERIOR DESIGNING AND ARCHITECTURAL SERVICES RENDERED BY M/S. FBEYE INTERNATIONAL PTE. LTD., SINGAPORE ARE TAXABLE U/S. 9(1)(VII)(B) OF INCOME TAX ACT, 1961 AND ALSO UNDE R ARTICLE 12(IV)(C) OF INDIA SINGAPORE DTAA. IN ITA NO. 2377/PN/2012 FOR ASSESSMENT YEAR 2009-10 A ND ITA NO. 2378/PN/2012 FOR ASSESSMENT YEAR 2010-11, THE REVE NUE HAS ASSAILED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) ON FOLLOWING GROUNDS: 1) THE LEARNED CIT(A) ERRED IN CONDONING THE DELAY IN F ILING APPEAL U/S. 248 EXTENDING UPTO 619 DAYS AND ERRED IN CONCLUD ING THAT THERE IS SUFFICIENT CAUSE FOR NOT FILING THE APPEAL IN TIME. 2) THE LEARNED CIT(A) ERRED IN NOT GRANTING OPPORTUNITY TO ASSESSING OFFICER DURING THE APPELLATE PROCEEDINGS AND NOT NOT ING THAT NO EVIDENCE WAS FILED THAT ANY APPLICATION U/S. 195 OR 1 97 OF THE IT ACT WAS FILED BY THE ASSESSEE EVEN SUBSEQUENTLY WHILE MAK ING THE PAYMENTS TO THESE COMPANIES, VIZ. KTGY INTER ASSOCIAT ES LTD. AND P 49 DEESIGN AND ASSOCIATES CO LTD OF THAILAND AT THE SUBSEQUENT STAGES OF THE CONTRACT. 3) THE LEARNED CIT(A) ERRED IN CONCLUDING THAT THE APPELL ANT WAS NOT REQUIRED TO DEDUCT TAX ON PAYMENT MADE TO THAILAND PARTIES AS THESE ARE NOT TAXABLE IN INDIA AS PER DTAA BETWEEN IN DIA AND THAILAND BY ONLY CONSIDERING THAT THERE IS NO SEPAR ATE ARTICLE DEALING WITH FEES FOR TECHNICAL SERVICES AND THEREBY NOT CONSIDERING ARTICLE 22 OF THE DTAA. 4) THE LEARNED CIT(A) ERRED IN CONCLUDING THAT THE APPELL ANT WAS NOT REQUIRED TO DEDUCT TAX ON PAYMENT MADE TO THAILAND PARTIES BY HOLDING THAT THESE ARE NOT TAXABLE IN INDIA AS PER DT AA BETWEEN INDIA AND THAILAND BY ONLY CONSIDERING THAT AS PER A RTICLE 14 OF DTAA, THE RECIPIENT WAS NOT PRESENT IN INDIA FOR MORE THAN 183 3 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 DAYS, WITHOUT APPRECIATING THAT THE RECIPIENT IS A CO MPANY AND NOT INDIVIDUAL AND THAT ARTICLE 14 DEALING WITH INDEPENDE NT PERSONAL SERVICES IS NOT APPLICABLE TO THE CASE HERE. 5) THE LEARNED CIT(A) DID NOT EXAMINE THE FACTS AS TO W HETHER PROVISION OF CONSULTANCY SERVICES BY THE RECIPIENT CONSTITUTED PERMANENT ESTABLISHMENT UNDER ARTICLE 5(2)(J) AND ALSO DID NOT CONSIDER THE DURATION OF SERVICES AS PER THE AGREEM ENTS COVERING VARIOUS STAGES STARTING FROM PRELIMINARY STUDY, TO CO NCEPTUAL DESIGN STAGE, SCHEMATIC DESIGN STAGE, DESIGN IMPLEMENTA TION STAGE, CONSTRUCTION DOCUMENTS REVIEW STAGE WHICH SHO WED THAT THE INVOLVEMENT OF THE TWO COMPANIES IS EXTENSIVE AND INVO LVES MEETINGS, VISITS BY PERSONNEL OF THE VENDOR TO THE ASS ESSEE'S SITE AND OFFICE IN INDIA OVER THE VARIOUS STAGES AND DURA TION IS MORE THAN 183 DAYS IN AGGREGATE. 6) THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE TAXA BILITY OF INCOME FROM CONSULTANCY SERVICES AS BUSINESS INCOME AS PER ARTICLE 7 OR AS TECHNICAL SERVICES AS OTHER INCOME AS PER ARTICLE 22 OF THE DTAA BETWEEN INDIA AND THAILAND. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE: THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF HOSPITALIT Y AND HOTEL INDUSTRY. DURING THE IMPUGNED ASSESSMENT YEARS THE ASS ESSEE AVAILED THE SERVICES OF ARCHITECTS AND INTERIOR DESIGNERS AND DE CORATORS FROM SINGAPORE AND THAILAND. FOR AVAILING THE SERVICES OF THESE OVERSEAS CONSULTANTS, THE ASSESSEE ENTERED INTO SEPARATE AGREEM ENTS WITH EACH CONSULTANT. AN AGREEMENT WAS EXECUTED BETWEEN THE AS SESSEE AND ANDY FISHER WORKSHOP PTE. LTD., SINGAPORE ON 14-07-2008 FOR DE SIGN CONSULTANCY SERVICES FOR THE HOTEL LE-MERIDIEN, PIMPRI, PUNE . ANOTHER AGREEMENT DATED 07-07-2008 WAS EXECUTED BETWEEN THE ASSESSEE AND FBEYE INTERNATIONAL PTE. LTD., SINGAPORE FOR THE INTERIOR D ESIGNING OF HOTEL LE-MERIDIEN, PIMPRI, PUNE. SIMILARLY, THE ASSESSEE EXECU TED AGREEMENTS WITH P49 DEESIGN AND ASSOCIATE CO. LTD. THAILAND FOR INT ERIOR DESIGN CONSULTANCY AND KTGY INTER-ASSOCIATES LIMITED, THA ILAND FOR 4 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 ARCHITECTURAL AND LANDSCAPE DESIGN SERVICES FOR LE-MERID IEN, MAHABALESHWAR HOTEL PROJECT. DURING THE IMPUGNED ASSESS MENT YEARS THE ASSESSEE MADE PAYMENTS TO THE ABOVE FOUR MENTION ED FOREIGN CONSULTANTS FOR THE SERVICES RENDERED BY THEM AT THE H OTEL PROJECT SITES OF THE ASSESSEE. THE CONTENTION OF THE ASSESSEE IS THAT THE PAYMENTS FOR THE SERVICES RENDERED BY THE AFORESAID FOREIGN CONSULTAN TS DOES NOT FALL WITHIN THE AMBIT OF TERM FEES FOR TECHNICAL SERVICES. THER EFORE, THE SAME ARE NOT LIABLE TO BE TAXED U/S. 9(1)(VII)(B) OF THE ACT. SINCE, THE ASSESSEE DEDUCTED TAX AT SOURCE ON THE AFORESAID PAYMENTS, THE ASSESSEE FILED APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) U/ S. 248. THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE IMPUGNED ORDER C OMMON FOR ASSESSMENT YEARS 2009-10 AND 2010-11 HELD THAT THE S ERVICES RENDERED BY SINGAPORE PARTIES I.E. ANDY FISHER WORKSHOP PTE. LTD. A ND FBEYE INTERNATIONAL PTE. LTD., SINGAPORE FALL WITHIN THE AMBIT OF TH E PROVISIONS OF SECTION 9(1)(VII)(B), THEREFORE, THE ASSESSEE WAS LIABLE TO DEDU CT TAX AT SOURCE ON PAYMENTS MADE TO THEM. HOWEVER, IN RESPECT OF PAYMENTS MADE TO THAILAND PARTIES I.E. KTGY INTER-ASSOCIATES LTD., T HAILAND AND P49 DEESIGN AND ASSOCIATE CO. LTD., THAILAND, THE PAYMENTS ARE NOT TAXABLE IN VIEW OF INDIA-THAILAND DTAA. AGAINST THESE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) BOTH, THE ASSESSEE AND THE REVENUE ARE IN APPE AL BEFORE THE TRIBUNAL. 3. SHRI KISHOR PHADKE APPEARING ON BEHALF OF THE ASSESSE E SUBMITTED THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN COMING TO THE CONCLUSION THAT THE SERVICES RENDERED BY ANDY FISHE R WORKSHOP PTE. LTD. AND FBEYE INTERNATIONAL PTE. LTD., SINGAPORE ARE TAXA BLE IN INDIA UNDER THE HEAD FEES FOR TECHNICAL SERVICES. THE LD. AR C ONTENDED THAT THE SINGAPORE PARTIES HAVE NOT TRANSFERRED ANY TECHNIC AL KNOW-HOW OR 5 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 TECHNICAL DESIGNS TO THE ASSESSEE. THE ARCHITECTURAL DES IGNS PROVIDED BY THE FOREIGN COMPANIES ARE PROJECT SPECIFIC. THERE HAS B EEN NO TRANSFER OF MAKE AVAILABLE TECHNICAL KNOW-HOW. THEREFORE, THE PAYMEN TS MADE DO NOT FALL UNDER THE CATEGORY OF PAYMENT OF ROYALTIES OR FEES FOR TECHNICAL SERVICES. THE LD. AR FURTHER PLACED RELIANCE ON ARTICLE 12 OF THE INDIA- SINGAPORE DTAA. THE LD. AR IN SUPPORT OF HIS CONTENTION PL ACED RELIANCE ON THE FOLLOWING CASE LAWS: I. BANGKOK GLASS INDUSTRY CO. LTD. VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED AS 257 CTR (MAD) 326. II. ROMER LABS SINGAPORE PTE. LTD. VS. ASSISTANT DIRECTOR OF I NCOME TAX (INTERNATIONAL TAXATION) REPORTED AS 22 ITR (TRIB) 224 (DELHI). III. BHARAT PETROLEUM CORPN. LTD. VS. JOINT DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) REPORTED AS (2007) 14 SOT 0307. IV. ASSISTANT COMMISSIONER OF INCOME TAX VS. VICEROY HOTELS LT D. REPORTED AS 18 ITR (TRIB) 282 (HYDERABAD). 4. IN RESPECT OF APPEALS FILED BY THE REVENUE, THE LD. AR SUBMITTED THAT THE CONSULTANTS/REPRESENTATIVES OF KTGY INTER-ASS OCIATES LTD., THAILAND AND P49 DEESIGN AND ASSOCIATE CO. LTD., THAILAND WE RE IN INDIA FOR LESS THAN 183 DAYS. THE LD. AR REFERRED TO CERTIFICATE DATED 10-01-2012 ISSUED BY P49 DEESIGN AND ASSOCIATE CO. LTD., THAILAND AT PAGE 28 OF THE PAPER BOOK TO SHOW THAT THE EMPLOYEES OF THE FOREIGN FIRM WERE IN INDIA FOR A PERIOD OF ONE WEEK ONLY. SIMILARLY, CERT IFICATE ISSUED BY KTGY INTER-ASSOCIATES LTD., THAILAND AT PAGE 86 OF TH E PAPER BOOK WAS REFERRED TO SHOW THAT THE EMPLOYEES OF THE SAID FIRM WERE IN INDIA FOR A TOTAL PERIOD OF 18 DAYS DURING THE PERIOD STARTING FROM 12-07-2008 TO 31-03-2011. THE LD. AR CONTENDED THAT THE ISSUES RAISED BY THE RE VENUE IN APPEALS ARE SQUARELY COVERED BY THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF DY. DIRECTOR OF INCOME TAX (I.T.)-II , PUNE VS. 6 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 SPARSH INFRATECH IN ITA NO. 2509/PN/2012 AND 1047 TO 1 056/PN/2014 FOR THE ASSESSMENT YEAR 2009-10 DECIDED ON 28-08-2014. 5. ON THE OTHER HAND SHRI A.K. MODI REPRESENTING THE DEP ARTMENT VEHEMENTLY DEFENDED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) WITH RESPECT TO SINGAPORE FIRMS. IN RESPECT OF T HE APPEALS OF THE DEPARTMENT THE LD. DR SUBMITTED THAT ALTHOUGH THE IS SUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN ITA NO. 2509/PN/2012 AND 1047 TO 1056/PN/2014 (SUPRA), NECESSARY VERIFICATION HAVE NOT BEE N CARRIED OUT BY THE COMMISSIONER OF INCOME TAX (APPEALS) TO ASCERTAIN THE FACTS. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE IMPUGNED ORDER. WE HAV E ALSO EXAMINED THE DECISIONS ON WHICH THE LD. AR HAS RELIED. WE WILL FIRST TAKE UP THE APPEALS OF THE ASSESSEE. THE COMMISSIONER OF INCO ME TAX (APPEALS) HAS HELD THAT THE PAYMENTS MADE TO SINGAPORE P ARTIES FALL WITHIN THE AMBIT OF FEES FOR TECHNICAL SERVICES. THE SINGA PORE PARTIES HAVE TRANSFERRED ARCHITECTURAL DESIGNS TO THE ASSESSEE. THE SINGAPORE PARTIES ALSO PERMITED THE ASSESSEE TO APPLY TECHNOLOGY OF WHATEVER NATURE CONTAINED IN DESIGNS AND PLANS. THE PAYMENTS AR E COVERED AND TAXABLE UNDER SECOND LIMB OF CLAUSE (C) OF ARTICLE 12(4). THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO DRAWN SUPPO RT FROM INDIA-USA DTAA WHICH IS SIMILAR TO INDIA-SINGAPORE DTAA. BE FORE WE PROCEED WITH THE ISSUE IT WOULD BE ESSENTIAL TO EXAMINE ARTICLE 12(4) & (5) OF INDIA-SINGAPORE DTAA. THE SAME IS REPRODUCED HERE-IN-UNDER: 4. THE TERM 'FEES FOR TECHNICAL SERVICES' AS USED IN THIS ARTICLE MEANS PAYMENTS OF ANY KIND TO ANY PERSON IN CONSIDE RATION FOR SERVICES OF A MANAGERIAL, TECHNICAL OR CONSULTANCY NA TURE (INCLUDING THE PROVISION OF SUCH SERVICES THROUGH TECHNICAL OR O THER PERSONNEL) IF SUCH SERVICES : 7 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 (A) ARE ANCILLARY AND SUBSIDIARY TO THE APPLICATION O R ENJOYMENT OF THE RIGHT, PROPERTY OR INFORMATION FOR WHICH A PAYM ENT DESCRIBED IN PARAGRAPH 3 IS RECEIVED ; OR (B) MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW OR PROCESSES, WHICH ENABLES THE PERSON ACQUIRING THE SERVICES TO APPLY THE TECHNOLOGY CONTAINED THEREIN ; OR (C) CONSIST OF THE DEVELOPMENT AND TRANSFER OF A TECH NICAL PLAN OR TECHNICAL DESIGN, BUT EXCLUDES ANY SERVICE THAT DOES N OT ENABLE THE PERSON ACQUIRING THE SERVICE TO APPLY THE TECHNOLOGY CONTAINED THEREIN. FOR THE PURPOSES OF (B) AND (C) ABOVE, THE PERSON ACQ UIRING THE SERVICE SHALL BE DEEMED TO INCLUDE AN AGENT, NOMINEE, OR TRANSFEREE OF SUCH PERSON. 5. NOTWITHSTANDING PARAGRAPH 4, 'FEES FOR TECHNICAL SER VICES' DOES NOT INCLUDE PAYMENTS : (A) FOR SERVICES THAT ARE ANCILLARY AND SUBSIDIARY, A S WELL AS INEXTRICABLY AND ESSENTIALLY LINKED, TO THE SALE OF PRO PERTY OTHER THAN A SALE DESCRIBED IN PARAGRAPH 3 (A) ; (B) FOR SERVICES THAT ARE ANCILLARY AND SUBSIDIARY TO THE RENTAL OF SHIPS, AIRCRAFT, CONTAINERS OR OTHER EQUIPMENT USED IN CONNECTION WITH THE OPERATION OF SHIPS OR AIRCRAFT IN INTERNATION AL TRAFFIC ; (C) FOR TEACHING IN OR BY EDUCATIONAL INSTITUTIONS ; (D) FOR SERVICES FOR THE PERSONAL ME OF THE INDIVIDUA L OR INDIVIDUALS MAKING THE PAYMENT; (E) TO AN EMPLOYEE OF THE PERSON MAKING THE PAYMENTS OR TO ANY INDIVIDUAL OR FIRM OF INDIVIDUALS (OTHER THAN A COMPAN Y) FOR PROFESSIONAL SERVICES AS DEFINED IN ARTICLE 14 ; (F) FOR SERVICES RENDERED IN CONNECTION WITH AN INST ALLATION OR STRUCTURE USED FOR THE EXPLORATION OR EXPLORATION OF NATURAL RESOURCES REFERRED IN PARAGRAPH 2(J) OF ARTICLE 5; (G) FOR SERVICES REFERRED TO IN PARAGRAPHS 4 AND 5 OF ARTIC LE 5. 8 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 7. THE MAIN EMPHASIS OF THE REVENUE IS THAT THE TRANSFE R OF ARCHITECTURAL DESIGNS AND PLANS BY THE SINGAPORE PARTIES AMOUNTS TO TRANSFER OF TECHNICAL KNOW-HOW TECHNOLOGY TO THE ASSESSE E. THE ASSESSEE HAS PLACED ON RECORD THE AGREEMENT ENTERED BETWEEN T HE ASSESSEE AND ANDY FISHER WORKSHOP PTE. LTD., SINGAPORE. THE SAID AGREE MENT GIVES THE DETAIL OF SCOPE OF WORK, SCHEDULE OF PAYMENT OF FEES, R ESPONSIBILITIES OF THE PARTIES, PRE-CONDITIONS FOR TERMINATION OF AGREEMENT , GENERAL CONDITIONS, COPYRIGHTS ETC. ACCORDING TO THE AGREEMENT, THE SINGAPORE FIRM HAS TO MAKE CONCEPT DESIGN. ON APPROVAL OF THE CONC EPT DESIGN THE CONSULTANT HAS TO COMMENCE WITH SCHEMATIC DESIGN. THE N EXT STAGE IS DETAILED DESIGNING OF THE PROJECT. AT THE TIME OF EXECUTIO N, THE CONSULTANT WOULD REVIEW THE CONSTRUCTION FOR MATERIAL SELEC TION AND ENSURE DESIGN INTENT IS MAINTAINED. THE FEES IS TO BE PAID TO THE CONSULTANT BASED ON COMPLETION OF WORK STAGE. THE CONS ULTANT WOULD VISIT THE SITE FOR MEETINGS, PRESENTATIONS AND REVIEW OF THE PROJECTS. THE CLAUSE 15 OF THE AGREEMENT SPEAKS ABOUT COPYRIGHT. THE SAME READS AS UNDER: THE COPYRIGHT IN ALL DOCUMENTS AND DRAWINGS PREPARED BY THE DESIGN CONSULTANT AND IN ANY WORK EXECUTED THERE FR OM REMAIN THE PROPERTY OF THE DESIGN CONSULTANT. IN ANY OCCASION THIS APPOINTMENT IS TERMINATED AND FEES OF THE DESIGN CONSULTANT GET S RESOLVED FULLY, THE CLIENT MAY CONTINUE TO UTILIZE DRAWINGS/INFORMAT ION OF THE DESIGN CONSULTANT FOR THE PURPOSE OF CONTINUING AND COMPLETING THE PROJECT ON THE SITE. 8. A PERUSAL OF CLAUSE 15 CLEARLY SHOWS THAT THE COPYRIG HT OF ALL DOCUMENTS AND DRAWINGS PREPARED BY THE OVERSEAS CONS ULTANT WILL REMAIN WITH THE CONSULTANT. IN THE CASE OF TERMINATION OF AGREEMENT, UPON PAYMENT AND SETTLEMENT OF FEES THE ASSESSEE IS AT LIBERTY TO UTILIZE DRAWINGS/INFORMATION WITH RESPECT TO THE PROJECT ON THE SITE. THUS, THE DESIGNS AND PLANS MADE BY THE CONSULTANT ARE PROJECTS SPECIFIC. 9 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 THEREFORE, IN OUR CONSIDERED VIEW THERE IS NO TRANSFER OF ANY TECHNOLOGY, TECHNICAL KNOW-HOW OR TECHNICAL DESIGNS WHICH THE ASSESSE E CAN UTILIZE SUBSEQUENTLY IN OTHER PROJECTS. THE ARCHITECTURAL DES IGN/DRAWINGS ARE PROJECT SPECIFIC. THE ASSESSEE CANNOT TAKE ADVANTAGE O F SAME IN OTHER PROJECTS. 9. THE ASSESSEE HAS SEPARATELY ENTERED INTO A DESIGN AGREEMENT WITH M/S. FBEYE INTERNATIONAL PTE. LTD., SINGAPORE. THE SAID AGR EEMENT ALSO LISTS THE COVENANTS WITH RESPECT TO SCOPE OF SERVICE AND WORK, PAYMENT OF FEES, LIABILITIES, ETC. A PERUSAL OF THE AGREEMENT SHOWS THAT THE FIRM SHALL MAKE DESIGNS ACCORDING TO THE ASSESSEES REQUIREMENT IN RESPECT OF A PARTICULAR PROJECT. THERE HAS BEEN NO TRANSFER OF ANY T ECHNOLOGY OR TECHNICAL DESIGN WHICH WOULD RESULT IN ENDURING BENEFIT TO THE ASSESSEE OR THE PAYMENT OF WHICH WOULD TAKE THE COLOUR OF PAYMENT OF FEES FOR TECHNICAL SERVICES. RELEVANT EXTRACT OF THE AGREEMENT WHICH DEALS WITH DEVELOPMENT OF DESIGN AND DOCUMENTS READS AS UNDER: DESIGN DEVELOPMENT PHASE : 1. BASED ON THE APPROVED CONCEPTUAL DESIGN AND ADJUSTME NTS AUTHORIZED BY THE CLIENT, THE DESIGNER SHALL PREPARE DESIGN DEVELOPMENT DRAWINGS SUITABLE FOR PRELIMINARY PRICING BY T HE CLIENTS QUANTITY SURVEYOR. 2. DESIGNER SHALL PROVIDE, ON CLIENTS CONFIRMATION, EIGHT (8 ) COLOURED RENDERINGS OF THE INTERIOR SPACES. ANY ADDITIONAL RE NDERINGS REQUESTED BY THE CLIENT ARE US$2,000 EACH AND A REIMB URSABLE EXPENSE PAID 50% DEPOSIT IS REQUIRED IN ADVANCE. 3. DESIGNER SHALL COORDINATE WITH THE CLIENTS APPOINTED LIGHTING DESIGNER TO REFINE THE REFLECTED CEILING PLANS AND FIXT URE LAYOUTS. 4. DESIGNER SHALL PROVIDE DESIGN DEVELOPMENT DOCUMENTATION FOR THE PROJECT KING MOCK-UP ROOM. THE DESIGNER SHALL COORDINAT E WITH THE CLIENT, ARCHITECT AND OPERATOR TO INSURE THAT THE DES IGNED AREA REPRESENTS THE FINISHED PRODUCT 10 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 CONTRACT DOCUMENTS PHASE CONSTRUCTION DOCUMENTS 1) BASED ON THE APPROVED INITIAL DESIGN DEVELOPMENT SUBMISSIONS, DESIGNER SHALL PREPARE DOCUMENTATION CONS ISTING OF DRAWINGS DETAILS AND SPECIFICATIONS TO SET FORTH IN SUFFICIENT DETAIL THE REQUIREMENTS FOR THE SPECIAL FINISHES OF THE PROJECT AR EAS. 2) DESIGNER SHALL PREPARE A COLOUR FINISH SCHEDULE AND PREPARE A CORRESPONDING FINISH NOTEBOOK INCLUDING SAMPLES OF ALL APPLIES FINISHES AND MATERIALS. 3) DESIGNER SHALL PREPARE MATERIAL SPECIFICATIONS OF IN TERIOR SPECIALTY ITEMS AND FINISHES FOR INCLUSION INTO ARCHITE CT'S PROJECT MANUAL. 4) THESE DRAWINGS, DETAILS AND SPECIFICATIONS WILL BE SUFFICIENT TO CONVEY THE ENTIRE DESIGN INTENT, BUT IT IS INTENDED AN D IT WILL BE REQUIRED THAT THEY BE SUPPLEMENTED BY THE ARCHITECT AND QUANTITY SURVEYOR AND INCORPORATED INTO THEIR DOCUMENTS FOR TENDERING AND CONSTRUCTION PURPOSES. 5) DESIGNER SHALL BE RESPONSIBLE FOR EXPLAINING DESIGN I NTENT AND CONSTRUCTION DRAWINGS TO CONTRACTOR SELECTED BY CLIE NT AND TECHNICAL PRESENTATION. 6) THE PHASE OF WORK WILL BE DEEMED AS BEING COMPLETED UPON SUBMISSION OF THE AFOREMENTIONED DRAWING AND INFORMA TION BY DESIGNER AND CLIENT'S REVIEW AND WRITTEN APPROVAL. 10. ACCORDING TO THE AGREEMENT THE DESIGNER SHALL REVIEW AND TAKE APPROPRIATE STEPS TO ENSURE THAT THE CONSTRUCTION IS C ARRIED OUT ACCORDING TO THE DESIGN AND PLAN. THUS, IT IS UNAMBIGUOUSL Y CLEAR FROM THE AGREEMENT THAT THE DESIGNS AND PLANS SUPPLIED BY TH E OVERSEA CONSULTANT ARE FOR THE PARTICULAR PROJECT, FOR WHICH THEIR SERVICES HAVE BEEN ENGAGED. 11 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 11. THE ASSESSEE IN SUPPORT OF HIS CONTENTION PLACED RE LIANCE ON THE JUDGMENT OF HON'BLE MADRAS HIGH COURT AND VARIOUS DECISIO NS OF THE TRIBUNAL. THE ISSUE WHETHER THE PAYMENT MADE TO THE CO NSULTANT PAR TAKE THE CHARACTER OF FEES FOR TECHNICAL SERVICES DEPEN DS ON FACTS AND CIRCUMSTANCES OF EACH CASE. WHERE IN RENDERING OF ANY SE RVICE THERE IS NO TRANSFER OF TECHNOLOGY, TECHNICAL KNOW-HOW OR ANY TECH NICAL KNOWLEDGE OR SKILL THAT ASSESSEE CANNOT APPLY IN FURTHER ANCE OF HIS BUSINESS OBJECTS, THE PAYMENTS FOR SAME IN OUR OPINION D OES NOT FALL WITHIN THE SCOPE OF FEES FOR TECHNICAL SERVICES. ONCE, THE PAYMENTS ARE HELD NOT TO BE IN THE NATURE OF FEES FOR TECHNICAL SER VICES THERE IS NO POINT IN TRAVELLING TO THE NEXT STEP TO ASCERTAIN WHETHER THEY ARE EXEMPT IN VIEW OF DTAA BETWEEN THE TWO COUNTRIES OR NOT. SINCE, WE HAVE HELD THAT THE PAYMENTS MADE TO SINGAPORE PARTIES ARE NOT IN THE NATURE OF ROYALTIES OR FEES FOR TECHNICAL SERVICES, WE ARE OF THE O PINION THAT NO PURPOSE WOULD BE SERVED BY REFERRING TO ARTICLE 12 OF IND IA-SINGAPORE DTAA TO SEE WHETHER SUCH PAYMENTS ARE TAXABLE OR EXE MPT. IN VIEW OF THE ABOVE, BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. 12. NOW, WE PROCEED WITH THE APPEALS OF THE REVENUE. TH E REVENUE IN ITS APPEAL HAS TAKEN SIX GROUNDS. THE FIRST GROUND RELA TES TO CONDONING OF DELAY BY COMMISSIONER OF INCOME TAX (APPEALS) IN FILING OF APP EAL U/S. 248 OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) A FTER CONSIDERING THE EXPLANATION FURNISHED BY THE ASSESSEE HA S CONDONED THE DELAY RANGING FROM 274 DAYS TO 619 DAYS IN FILING OF THE APP EALS. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THERE IS NO NEGLIGENCE OR LAXITY ON PART OF THE ASSESSEE IN PREFERRING APPEAL, THE DELAY WAS CAUSED BECAUSE OF WRONG ADVICE GIVEN BY THE PROFESSIONA LS. IT IS A WELL SETTLED LAW THAT CONDONATION OF DELAY SHOULD BE A RULE AND 12 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 DENIAL AN EXCEPTION. IT IS NOT THE LENGTH OF DELAY WHICH M ATTERS BUT THE REASON FOR DELAY IN FILING OF THE APPEAL WHICH IS OF PRIME IMPORT ANCE. THE COURTS HAVE BEEN TAKING LIBERAL VIEW IN CONDONING SUBSTANT IAL DELAY WHERE THE DELAY HAS BEEN EXPLAINED. ON THE OTHER HAND, MINOR DELAY IN FILING OF THE APPEAL IS NOT PARDONED WHERE IT HAS NOT BEEN SUFFICIENTLY EXPLAINED OR DELAY IS ATTRIBUTABLE TO UTTER NEGLIGENCE OR LA CKADAISICAL ATTITUDE OF APPELLANT. THERE ARE CATENA OF JUDGMENTS WHE REIN THE HON'BLE SUPREME COURT OF INDIA AND VARIOUS HON'BLE HIGH COURTS H AVE REITERATED THE PRINCIPLE FOR CONDONING DELAY BY FOLLOWING LIBERAL APPROACH . THE HON'BLE APEX COURT IN THE CASE OF RAM NATH SAO VS. GOB ARDHAN SAO REPORTED AS 2002 (3) SCC 195 HAS HELD: THERE CANNOT BE A STRAIGHTJACKET FORMULA FOR ACCEP TING OR REJECTING EXPLANATION FURNISHED FOR THE DELAY CAUSED IN TAKIN G STEPS. BUT ONE THING IS CLEAR THAT THE COURTS SHOULD NOT PROCEED WITH THE TENDENCY OF FINDING FAULT WITH THE CAUSE SHOWN AND REJECT THE PETITION BY A SLIPSHOD ORDER IN OVER JUBILATION OF DISPOSAL DRIVE. ACCEPTANCE OF EXPLANATION FURNISHED SHOULD BE THE RULE AND REFUSAL A N EXCEPTION MORE SO WHEN NO NEGLIGENCE OR INACTION OR WANT OF B ONA FIDE CAN BE IMPUTED TO THE DEFAULTING PARTY. ON THE OTHER HAND, WH ILE CONSIDERING THE MATTER THE COURTS SHOULD NOT LOSE SIG HT OF THE FACT THAT BY NOT TAKING STEPS WITHIN THE TIME PRESCRIBED A VALUABLE RIGHT HAS ACCRUED TO THE OTHER PARTY WHICH SHOULD NOT BE L IGHTLY DEFEATED BY CONDONING DELAY IN A ROUTINE LIKE MANNER. HOWEVER, BY TAKING A PEDANTIC AND HYPER TECHNICAL VIEW OF THE MATTER THE EXPLANATION FURNISHED SHOULD NOT BE REJECTED WHEN STAKES ARE HIG H AND/OR ARGUABLE POINTS OF FACTS AND LAW ARE INVOLVED IN THE CASE, CAUSING ENORMOUS LOSS AND IRREPARABLE INJURY TO THE PARTY AGA INST WHOM THE LIS TERMINATES EITHER BY DEFAULT OR INACTION AND DEF EATING VALUABLE RIGHT OF SUCH A PARTY TO HAVE THE DECISION ON MERIT. WHILE CONSIDERING 13 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 THE MATTER, COURTS HAVE TO STRIKE A BALANCE BETWEEN RESULTANT EFFECT OF THE ORDER IT IS GOING TO PASS UPON THE PARTIES EITHER W AY. THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER TAKING INTO CONSIDERATION THE REASONS AND CIRCUMSTANCES CAUSING DELA Y HAS CONDONED THE DELAY. WE DO NOT DEEM APPROPRIATE TO INTE RFERE WITH THE SAME. ACCORDINGLY, THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 13. IN GROUND NOS. 2 TO 6 OF THE APPEAL, THE REVENUE HA S ASSAILED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IS HOLDING THAT THE PAYMENTS MADE TO KTGY INTER ASSOCIATES LTD. AND P49 D EESIGN AND ASSOCIATE CO. LTD., THAILAND ARE NOT TAXABLE IN INDIA. THE L D. AR OF THE ASSESSEE HAS PLACED ON RECORD A COPY OF ORDER OF CO-OR DINATE BENCH OF THE TRIBUNAL IN THE CASE OF DY. DIRECTOR OF INCOME TAX (I. T.) VS. SPARSH INFRATECH (SUPRA), WHERE IDENTICAL GROUNDS WERE RAISED BY THE REVENUE. WE OBSERVE THAT ONE OF THE PARTY I.E. KTGY INTER ASSOCIA TES LTD. WAS ONE OF THE PAYEE COMPANY IN THE CASE RELIED UPON BY THE LD. AR. THE CO-ORDINATE BENCH OF THE TRIBUNAL DECIDED THE ISSUE AS UNDER: 11. NOW, WE MAY ADDRESS THE MERITS OF THE CONTROVER SY BEFORE US. IN THIS CONTEXT, WE FIND THAT THE CIT(A) IN PARA 2.1 O F HIS ORDER HAS TABULATED THE SERVICES PROVIDED BY THE THREE PAYEES TO THE ASSESSEE. IN THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSE SSEE HAS FURNISHED COPIES OF AGREEMENTS WITH THE RESPECTIVE F OREIGN CONCERNS AS ALSO THE INVOICES RAISED BY THE SAID CONCERNS ON ACCOUNT OF THE SERVICES RENDERED TO THE ASSESSEE. THE INFERENCE DR AWN BY THE CIT(A) IS THAT THE SERVICES RENDERED BY THE RECIPIEN T FOREIGN CONCERNS ARE TAXABLE AS FEES FOR TECHNICAL SERVICES U/S 9(1)(V II)(B) OF THE ACT. IN THE CONTEXT OF THE ABOVE FINDING OF THE CIT(A), WE HAVE PERUSED THE SCOPE OF WORK UNDERTAKEN BY THE THREE RECIPIENT CONCERNS AS PER THE RESPECTIVE AGREEMENTS, WHOSE COPIES HAVE BEEN PL ACED IN THE PAPER BOOK. IT IS QUITE EVIDENT FROM THE PERUSAL OF T HE AGREEMENTS AS ALSO THE SCOPE OF WORK ENUMERATED BY THE CIT(A) IN PARA 2.1 OF HIS ORDER THAT IT INVOLVED PROVISION OF ARCHITECTURAL, D ESIGNS AND 14 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 DRAWINGS SERVICES. FACTUALLY SPEAKING, THE AFORESAID FINDING OF THE CIT(A) THAT THE SERVICES RENDERED BY THE RECIPIENT CO NCERNS TO THE ASSESSEE COMPANY IN INDIA FALL FOR CONSIDERATION AS F EE FOR TECHNICAL SERVICES U/S 9(1)(VII)(B) OF THE ACT IS NOT IN DISPUTE, AND THEREFORE, WE DO NOT DWELL AT LENGTH ON THIS ASPECT OF THE MATTER. IN ANY CASE, WE ARE IN AGREEMENT WITH THE ABOVE FINDINGS OF THE CIT(A), HAVING REGARD TO THE SCOPE OF WORK ENVISAGED IN THE RESPECTIVE AGREEMENTS WITH THE RECIPIENT CONCERNS. 12. ON THE BASIS OF THE AFORESAID, THE CIT(A) TOOK NO TE OF ASSESSEES PLEA THAT HAVING REGARD TO THE PROVISIONS OF INDO- THAILAND DTAA, THE TAXABILITY OF SUCH INCOMES IS TO BE GOVERNED BY THE TERMS OF DTAA BETWEEN INDIA AND THAILAND BECAUSE THE SAME WAS FAVOURABLE AND ENVISAGED NO TAX LIABILITY IN COMPA RISON TO THE NORMAL PROVISIONS OF THE ACT. THE CIT(A) FOUND THAT T HE IMPUGNED PAYMENTS WERE NOT TAXABLE IN TERMS OF INDO-THAILAND DTAA AS THE SAID DTAA DID NOT HAVE ANY PROVISION FOR TAXING FE E FOR TECHNICAL SERVICES. THE AFORESAID CONCLUSION OF THE CIT(A), IN OUR CONSIDERED OPINION, IS IN ACCORD WITH THE PROVISIONS OF SECTION 90(2) OF THE ACT. SECTION 90(2) PROVIDES THAT WHERE CENTRAL GOVERNMENT HAS ENTERED INTO AN AGREEMENT WITH THE GOVERNMENT OF ANY COUNTR Y OUTSIDE INDIA FOR GRANTING RELIEF OF TAX, OR AS THE CASE MAY BE AV OIDANCE OF DOUBLE TAXATION, THEN, IN RELATION TO THE ASSESSEE TO WHOM S UCH AGREEMENT APPLIES, THE PROVISIONS OF THE ACT SHALL APPLY TO THE E XTENT THEY ARE MORE BENEFICIAL TO THAT ASSESSEE. SINCE THE INDO-THAIL AND DTAA DOES NOT PROVIDE FOR TAXABILITY OF FEE FOR TECHNICA L SERVICES IN THE CASE OF THE THREE RECIPIENTS, WHO ARE RESIDENTS OF T HAILAND, THE BENEFICIAL PROVISIONS OF THE DTAA SHALL PREVAIL. IN-FA CT, BEFORE US THIS ASPECT OF THE MATTER IS ALSO NOT IN DISPUTE. 13. HOWEVER, REVENUE HAS CONTENDED THAT THE CIT(A) E RRED IN CONSIDERING THAT THERE IS NO SEPARATE ARTICLE IN THE DTA A TO DEAL WITH FEE FOR TECHNICAL SERVICES. AS PER THE REVENUE, CIT (A) OUGHT TO HAVE CONSIDERED ARTICLE 22 OF THE DTAA WHICH WAS A RE SIDUAL CLAUSE AND THAT SUCH CLAUSE COVERED THE TAXABILITY OF THE IM PUGNED SUMS. IN OUR CONSIDERED OPINION, THE AFORESAID PLEA OF THE REVENUE IS NOT JUSTIFIED. IN SITUATIONS LIKE THE PRESENT, IT CANNOT B E SAID THAT THE IMPUGNED INCOME IS A MISCELLANEOUS INCOME SO AS TO JU STIFY INVOKING OF ARTICLE 22 OF THE DTAA. THE JUDGEMENT OF THE HONB LE MADRAS HIGH COURT IN THE CASE OF BANGKOK GLASS INDUSTRY CO . LTD. VS. ACIT, 15 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 (2013) 34 TAXMANN.COM 77 (MADRAS), WHICH HAS BEEN REND ERED IN THE CONTEXT OF INDO-THAILAND DTAA, SUPPORTS THE ABOV E PROPOSITION. ACCORDING TO THE HONBLE HIGH COURT, FEE FOR TECHNICA L SERVICES CANNOT BE TAXED UNDER RESIDUAL ARTICLE 22 OF INDO-THAILAND DTA A. 14. FURTHER, AS PER THE REVENUE, CIT(A) ERRED IN NOT A PPRECIATING ARTICLE 14 OF THE DTAA WHICH PROVIDES FOR TAXATION O F INCOME ON ACCOUNT OF PROFESSIONAL SERVICES. IN THIS CONTEXT, IT IS TO BE APPRECIATED THAT THE ARTICLE PRESCRIBES FOR TAXATION OF PROFESSIONAL SERVICES ONLY IN A CASE WHERE THE RECIPIENT IS PRESE NT IN INDIA FOR MORE THAN 183 DAYS OR IT MAINTAINS A FIXED BASE/PERM ANENT ESTABLISHMENT IN INDIA. IN THE PRESENT CASE, THERE IS NO MATERIAL TO SUGGEST THAT THE RECIPIENT CONCERNS HAVE A PERMANEN T ESTABLISHMENT IN INDIA OR THAT THEY WERE PRESENT IN INDIA FOR A PE RIOD EXCEEDING 183 DAYS DURING THE PREVIOUS YEAR RELEVANT TO THE AS SESSMENT YEAR UNDER CONSIDERATION. IN THIS CONTEXT, LEARNED COUNSE L FOR THE ASSESSEE FURNISHED APPROPRIATE CERTIFICATES FROM THE THREE RECIPIENT CONCERNS TABULATING THE PERIOD FOR WHICH THEIR REPR ESENTATIVES WERE PRESENT IN INDIA DURING THE RELEVANT PERIOD WHICH SHO W THAT THE PRESENCE IN INDIA WAS FOR LESS THAN 183 DAYS. THEREFO RE, ON THIS ASPECT ALSO, WE FIND NO MERIT IN THE PLEA OF THE REVEN UE AND THE DISCUSSION MADE BY THE CIT(A) IN PARA 3.8 OF HIS ORDER IN TH IS CONTEXT IS HEREBY AFFIRMED. 15. SIMILARLY, REVENUE HAS RAISED A PLEA THAT THE CIT (A) HAS NOT CONSIDERED THE TAXABILITY OF THE IMPUGNED INCOME AS B USINESS INCOME UNDER ARTICLE 7 OF THE DTAA. ARTICLE 7 OF THE DTAA DEALS WITH BUSINESS PROFITS TO BE CONSIDERED FOR TAXATION . THE SAID ARTICLE STATES THAT THE INCOME OR PROFITS OF THE ENTERPRISE OF A CONTRACTING STATE SHALL BE TAXABLE ONLY IN THAT STATE UNLESS THE ENTERP RISE CARRIES ON BUSINESS IN THE OTHER CONTRACTING STATE THROUGH A PERMANENT ESTABLISHMENT (PE) SITUATED THEREIN. THE TAXABILITY IS ONLY OF SO MUCH INCOME AS IS ATTRIBUTABLE TO THAT PE FOR THE SA LES IN THAT OTHER STATE OF THE GOODS OR MERCHANDISE. IN THIS CONTEXT, HAVING REGARD TO THE DEFINITION OF PE PROVIDED IN ARTICLE 5(2)(J) OF TH E INDO-THAILAND DTAA, WE FIND THAT THE THREE RECIPIENT CONCERNS CANN OT BE SAID TO HAVE ANY PE IN INDIA SO AS TO BRING THE IMPUGNED INCO ME TO TAX AS BUSINESS PROFITS IN INDIA AS PER ARTICLE 7 OF THE DT AA. THEREFORE, ON THIS COUNT ALSO WE FIND NO REASON TO INTERFERE WITH T HE CONCLUSION OF 16 ITA NOS. 2110, 2111, 2377 & 2378/PN/2012, A.YS. 200 9-10 & 2010-11 THE CIT(A) TO THE EFFECT THAT ASSESSEE WAS NOT REQUI RED TO DEDUCT TAX ON THE IMPUGNED PAYMENTS TO THE THREE RECIPIENT CONCER NS. 16. IN THE RESULT, THE ORDER OF THE CIT(A) IS HEREBY AFFIRMED AND ACCORDINGLY, REVENUE FAILS IN THE CAPTIONED APPEALS. 14. SINCE, THE ISSUES RAISED IN THE PRESENT SET OF APPEALS OF THE REVENUE AND THE APPEAL DECIDED BY THE CO-ORDINATE BENC H OF THE TRIBUNAL ARE IDENTICAL, WE DO NOT FIND ANY REASON TO TAKE CONTRARY VIEW, MORE SO, WHEN THE LD. DR HAS NOT BEEN ABLE TO DISTINGUISH THE SAME. ACCORDINGLY, BOTH THE APPEALS OF THE REVENUE ARE DISMISSE D BEING DEVOID OF MERIT. 15. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED AND THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 19 TH DAY OF JUNE, 2015 AT PUNE SD/- SD/- (R.K. PANDA) (VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 19 TH JUNE, 2015 RK/PS COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - I T/TP, PUNE 4 THE D IT ( IT), PUNE 5 6 THE DR, ITAT, B BENCH, PUNE. GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE