SIEMENS AKTIENGESELLSCHAFT, MUMBAI V. DDIT (IT) 2(1), MUMBAI

ITA 2869/MUM/2013

• Counselvise Citation: 286919914 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 12-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Assessee Lawyers: AKHIL PAL
• Keywords: Revised return
• Section: 143(3); 234B

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI H.L. KARWA, HONBLE PRESIDENT AND P.M . JAGTAP, AM .. , .. , ./ I.T.A. NO.2869 /MUM/2013 ( / ASSESSMENT YEAR : 2010-2011 SIEMENS AKTIENGESELLSCHAFT, C/O BSR & CO., LODHA EXCELUS, IST FLOOR, APOLLO MILLS COMPOUND, N.M. JOSHI MARG, MAHALAKSHMI, MUMBAI 400 011. / VS. DY. DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) 2(1), MUMBAI. ./ PAN : AABCS8516K ( ! / APPELLANT ) .. ( '#! / RESPONDENT ) A PPELLANT BY SHRI AKHIL PAL R E SPONDENT BY : SHRI PITAMBAR DAS ' ( / DATE OF HEARING : 16-07-2014 ' ( / DATE OF PRONOUNCEMENT :30-7-2014 [ / O R D E R PER P.M. JAGTAP, A.M . : .. , THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. CIT(A) -11, MUMBAI DATED 22-01-2013 AND THE GROUNDS RAISED BY THE ASSESSEE THEREIN READ AS UNDER:- 1. GROUND NO.1 1.1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEAL S) [CIT(A)] HAS LEGALLY ERRED IN UPHOLDING THE VARIATION IN THE TAX PAYABLE IN AN INTIMATION UNDER SECTION 143(1) OF THE INCOME TAX A CT, 1961 (THE ACT). 1.2. THE LEARNED CIT(A) HAS LEGALLY ERRED IN NOT DE LETING THE ERRONEOUS DEMAND OF RS. 39,589,190 RAISED BY THE ASSESSING OF FICER (AO). ITA 2869/M/13 2 1.3. THE LEARNED CIT(A) HAS ERRED IN LAW AND FACTS IN NOT HOLDING THAT INTIMATION UNDER SECTION 143(1) OF THE ACT WHICH PE RTAINS TO THE ORIGINAL RETURN OF INCOME BECOMES INFRUCTUOUS UPON FILING OF REVISED RETURN OF INCOME BY THE APPELLANT. 2. GROUND NO. 2 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THAT SURCHARGE @2.5% AND EDUCATION CESS @ 3% IS LEVIABLE NOTWITHSTANDING THAT TAX @ 10% IS APPLICABLE ON THE INCOME COMPRISI NG OF ROYALTY AND FEES FOR TECHNICAL SERVICES, IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 12 OF THE TAX TREATY BETWEEN INDIA AND GERMANY. 3. GROUND NO.3 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT DELETING THE INTEREST U/S 234B AND 234C OF THE ACT LEVIED BY AQ. HE FAILED IN APPRECIATING THAT A NON-RESIDENT COMPANY IS NOT REQ UIRED TO PAY ADVANCE TAX UNDER THE PROVISIONS OF THE ACT, AS TAX WAS DEDUCTIBLE AT SOURCE ON THE ENTIRE INCOME OF THE APPELLANT UNDER SECTION 195 OF THE ACT. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS AGREED BY THE LD. REPRESENTATIVES OF BOTH THE SIDES, THE PRESENT APPEAL IS EMANATING FRO M THE INTIMATION ISSUED BY THE A.O. U/S 143(1) OF THE INCOME TAX ACT, 1961 WHE REAS THE A.O. HAS SUBSEQUENTLY PASSED AN ORDER U/S 143(3) COVERING AL SO THE ISSUES INVOLVED IN THE INTIMATION ISSUED U/S 143(1) OF THE ACT. THEY H AVE SUBMITTED THAT THE INTIMATION ISSUED BY THE A.O. U/S 143(1) OF THE ACT AS WELL AS THE PROCEEDINGS EMANATED THEREFROM INCLUDING THE PRESENT APPEAL HAV E BECOME INFRUCTUOUS. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO SUBMITTED THAT ONLY IN CASE THE FRESH PROCEEDINGS TAKEN BY THE A.O. U/S 143(3) OF T HE ACT DO NOT SURVIVE FOR ANY REASON, THE INTIMATION ISSUED U/S 143(1) OF THE ACT WOULD GET REVIVED AND THE ASSESSEE MAY THEREFORE BE ALLOWED A LIBERTY TO SEEK REVIVAL OF THIS APPEAL IN SUCH EVENTUALITY. THE LD. D.R. HAS NOT RAISED AN Y OBJECTION FOR GIVING SUCH LIBERTY TO THE ASSESSEE. ACCORDINGLY, KEEPING IN V IEW THE SUBMISSIONS MADE BY BOTH THE SIDES, WE TREAT THIS APPEAL EMANATING F ROM THE INTIMATION U/S 143(1) OF THE ACT AS INFRUCTUOUS AND DISMISS THE SA ME ACCORDINGLY WITH A ITA 2869/M/13 3 LIBERTY TO THE ASSESSEE TO SEEK REVIVAL OF THE SAME IN ACCORDANCE WITH LAW IN CASE THE INTIMATION U/S 143(1) OF THE ACT GETS REVI VED AS A RESULT OF ANY DEVELOPMENT IN FUTURE. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JULY, 2014. ' . / 0 30-7-2014 ' SD/- -SD/- (H.L. KARWA) (P.M. JAGTAP ) /PRESIDENT ACCOUNTANT MEMBER MUMBAI ; 0 DATED 30-7-2014 [ .;../ RK , SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT. 3. < () / THE DIT(E), MUMBAI 4. < / DDIT (E)-1(2), MUMBAI 5. ? ';;A , ( A , / DR, ITAT, MUMBAI E BENCH 6. / GUARD FILE. / BY ORDER, #? '; //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI