RAYTHEON EBASCO OVERSEAS LTD, BANGALORE V. DDIT (IT) 2(1), MUMBAI

ITA 2609/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3959 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 02-05-2016
• Assessment Year: 1998-1999
• Appeal Filed On: 05-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAHIR CHAUHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI BEFORE SHRI SANJAY ARORA, A M AND SHRI RAMLAL NEGI , J M ./ I.T.A. NO. 2609/MUM/2013 ( / ASSESSMENT YEAR: 1998 - 99) RAYTHEON EBASCO OVERSEAS LTD. C/O. PRICEWATERHOUSE COOPERS PRIVATE LIMITED, 6 TH FLOOR, TOWER D, THE MILLENIA, 1 & 2 MURPHY ROAD, ULSOOR, BANGALORE - 560 008 / VS. DY. DIT (IT) - 2(1), 1 ST FLOOR, ROOM NO. 120, SCINDIA HOUSE, BALLARD ESTATE, NARIMAN POINT, MUMBAI - 40 0 038 ./ ./ PAN/GIR NO. AAFCR 0222 H ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI DHANESH BAFNA / RESPONDENT BY : SHRI JAHIR CHAUHAN / DA TE OF HEARING : 02.5.2016 DATE OF ORDER : 2 0 .5.2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE ASSESSEE CONTESTING THE CONFIRMATION OF PENALTY U/S. 271(1)(C) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE COMMISSION ER OF INCOME TAX (APPEALS) - 11 , MUMBAI (CIT(A) FOR SHORT) IN THE ASSESSEES CASE FOR THE ASSESSMENT YEAR (A.Y.) 1998 - 99 VIDE ORDER DATED 28.2.2013 . 2. AT THE VERY OUTSET, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL , SHRI D IN ESH BAFN A , THAT THE MATTER STANDS SINCE SETTLED IN THE ASSESSEES FAVOUR IN - AS - MUCH AS THE T RIBUNAL HAS , ACCEPTING THE ASSESSEES CASE THAT THE IMPUGNED RECEIPT, I.E., AGAINST THE SERVICES RENDERED , IS NOT A FEES FOR INCLUDED SERVICES (FIS) AS PE R THE PROVISIONS OF ARTICLE 12 OF DOUBLE TAXATION AV OIDANCE 2 ITA NO. 2609/MUM/2013 (A.Y. 1998 - 99) RAYTHEON EBASCO OVERSEAS LTD. VS. DY. DIT (IT) AGREEMENT (DTAA) BETWEEN INDIA AND USA , HELD THAT THE SAME WAS NOT FTS, BEING LINKED INEXTR I C ABLY TO THE SETTING UP OF THE (POWER) PROJECT , AND ESSENTIALLY IN THE NATURE OF STA RT - UP SERVICES AND S ALE OF EQUIPMENT. THE TWIN TEST REQUIRED TO SATISF Y THE CONDITION OF MAKE AVAILABLE SPECIFIED IN ARTICLE 12 AFORE - REFERRED, AS LAID DOWN IN THE DECISION IN CIT VS. DE BEERS INDIA MINERALS (P . ) LTD. [2012 ] 346 ITR 467 ( KAR ) , IS NOT MET. THE IMPUGNED RECEI PT IS ACCORDINGLY NOT TAXABLE. TOWARD THIS, HE WOULD TAKE US TO THE RELEVANT PART (PARA 6 ONWARDS) OF THE TRIBUNALS ORDER, PLACING A COPY OF THE SAME ON RECORD (IN ITA NO. 8567/MUM/2011 DATED 11.3.2016). THE APPEAL OF THE ASSESSEE HAVING BEEN ALLOWED BY T HE TRIBUNAL THUS, THE PENALTY WOULD NOT SURVIVE. THE LD. DR CONCEDED TO THIS BEING THE POSITION. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. WITHOUT DOUBT, THE ASSESSEES APPEAL AGITATING ITS ASSESSMENT HAVING BEEN SINCE ALLOWED B Y THE TRIBUNAL , NO QUESTION OF PENALTY U/S. 271(1)(C) OF THE ACT SURVIVES. THE IMPUGNED ORDER IS ACCORDINGLY SET ASIDE, DELETING THE PENALTY. WE MAY THOUGH CLARIFY THAT IF ANY SUBSEQUENT STAGE THE TRIBUNAL S ORDER , BEING APPEALABLE, IS REVERSED OR MODIFI ED TO ANY EXTENT, THE REVENUE SHALL; WE HAVING NOT DECIDED THE APPEAL ON MERITS, BE AT LIBERTY TO MOVE THE TRIBUNAL FOR THE RESTORATION OF THE INSTANT APPEAL FOR A DECISION ON MERITS. WE DECIDE ACCORDINGLY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 02 , 201 6 SD/ - SD/ - ( RAMLAL NEGI ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 20 . 0 5 .201 6 . . ./ ROSHANI , SR. PS 3 ITA NO. 2609/MUM/2013 (A.Y. 1998 - 99) RAYTHEON EBASCO OVERSEAS LTD. VS. DY. DIT (IT) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI