DDIT, Dehradun V. M/s. Baker Hughes Asia Pacific Ltd., Dehradun

ITA 3881/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3748 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 01-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 04-07-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Business income; Double taxation relief; Permanent establishment
• Section: 234B

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3881/DEL/2014 (ASSESSMENT YEAR: 2010 - 11 ) DDIT, INTERNATIONAL TAXATON, DEHRADUN VS. BAKER HUGHES ASIA PACIFIC LTD, C/O. NANGIA & CO. 75/7, RAJPUR ROAD, DEHRADU PAN:AACCB3714F (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SS RANA, CIT DR ASSESSEE BY: SHR AMIT ARORA, CA SHRI VIHAL MISRA, CA DATE OF HEARING 15/11 /2017 DATE OF PRONOUNCEMENT 0 7 / 0 2 / 2018 OH O R D E R PER PRASHANT MAHARISHI , A. M. 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD CIT(A) - II, DEHRADUN DATED 23.04.2014 FOR THE ASSESSMENT YEAR 2010 - 11. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN HOLDING THAT THE REVENUE EARNED BY THE ASSESSEE DURING THE YEAR FROM VARIOUS ENTITIES ON ACCOUNT OF PROVISION OF EQUIPME NTS ON HIRE AND PROVISION OF SERVICES IS CHARGEABLE TO TAX U/S 44BB OF THE INCOME TAX ACT, 1961 (THE ACT) 1(A). THE LD. CIT(A) HAS ERRED IN REVERSING THE FINDINGS OF THE ASSESSING OFFICER (AO) THAT THE RECEIPTS ON ACCOUNT OF PROVISION OF EQUIPMENT ON HIRE ARE IN THE NATURE OF ROYALTY AS DEFINED U/S 9(1 )(VI) AND, THEREFORE, ARE LIABLE TO BE TAXED UNDER SECTION 44DA OF THE I.T. ACT, 1961 AS THEY DO NOT QUALIFY FOR TREATMENT UNDER SECTION 44BB OF THE ACT. 1(B). THE LD. CIT(A) HAS ERRED IN REVERSING THE F INDINGS OF THE ASSESSING OFFICER (AO) THAT THE RECEIPTS ON ACCOUNT OF PROVISION SERVICES ARE IN THE NATURE OF FEE FOR TECHNICAL SERVICES (FTS) AS DEFINED UNDER SECTION 9(1 )(VII) AND THEREFORE, LIABLE TO BE TAXED UNDER SECTION 44DA OF THE INCOME TAX AC T, 1961 AS THEY DO NOT QUALIFY FOR TREATMENT UNDER SECTION 44BB OF THE ACT. DDIT VS. BAKER HUGHES ASIA PACIFIC LTD, ITA NO. 3881/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 2 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT (A) HAS ERRED IN NOT APPRECIATING THE FACT THAT PROVISO TO SECTION 44DA BROUGHT ABOUT BY THE FINANCE ACT 2010 WAS ONLY CLARIFICATORY IN NATURE AND ITS APPLICATION HAS TO BE READ INTO THE MAIN PROVISIONS WITH EFFECT FROM THE TIME THE MAIN PROVISION CAME INTO EFFECT IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF SEDCO FOREX INTERNATIONAL DRILLING V S. CIT. 3. WHETHER THE LD. CIT(A) HAS ERRED IN IGNORING THE DISTINCT SCHEME OF TAXATION OF FTS/ROYALTY AND DISREGARDING THE INSERTION OF PROVISOS IN SECTION 44BB/44DA/115A AND THE RATIONALE BEHIND THE INTRODUCTION OF SAID CLARIFICATORY PROVISOS IN THE FINA NCE BILL 2010 IN HOLDING THAT THE INCOME OF THE ASSESSEE COMPANY WAS COVERED UNDER THE PROVISIONS OF SECTION 44BB. 4. WHETHER THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THAT PROVISO TO SECTION 44BB IS NOT INSERTED PER MAJOREM CAUTELAMBUT EXPLAINS AND C LARIFIES THE MAIN PROVISION AS THE TERM SERVICES OR FACILITIES USED THEREIN ARE NOT DEFINED AND THE TWO TERMS USED ARE TOO GENERAL IN NATURE AND THUS ONCE THE PAYMENTS ARE CHARACTERIZED AS FTS/ROYALTY U/S 9(1 )(VI)/9(1 )(VII), THEY GO OUTSIDE THE PURVIEW O F SECTION 44BB AND HAVE TO BE TAXED AS FTS/ROYALTY AT RATES APPLICABLE TO FTS/ROYALTY AS PRESCRIBED UNDER THE ACT AND/OR DTAA. 5. WHETHER THE LD. CIT(A) HAS ERRED IN REVERSING FINDING GIVEN BY THE AO WHO HAS HELD THAT THE ASSESSEE HAS NOT PRODUCED ANY DETA ILS OF EXPENSES REGARDING RENDERING OF PROVISION OF EQUIPMENT ON HIRE AND RENDERING OF VARIOUS SERVICES AND HENCE REVENUES ON ACCOUNT OF SERVICES AND EQUIPMENT HIRE ARE LIABLE TO BE TAXED BY APPLYING 25% RATE OF PROFIT ON SUCH RECEIPTS AS PER THE REQUIREME NTS OF RULE 10 OF THE INCOME TAX RULES, 1962, IN THE ABSENCE OF BOOKS OF ACCOUNTS AND TAXED ACCORDINGLY. 6. WHETHER THE LD CIT(A) HAS ERRED IN HOLDING THAT REVENUES RECEIVED BY THE ASSESSES ON ACCOUNT OF SO CALLED OFFSHORE SUPPLIES IS NOT CHARGEABLE TO T AX IN INDIA. 6.1 THE LD. CIT(A) HAS PURPORTEDLY FOLLOWED HIS OWN DECISION IN ASSESSEES CASE FOR ASSESSMENT YEAR 2009 - 10 IN ALLOWING IN TOTO THE GROUND OF APPEAL (GROUND NO. 6) ON THIS ISSUE, NOT APPRECIATING THE FACT THAT IN THE SAID YEAR THE ASSESSEES A PPEAL ON THIS ISSUE WAS ONLY PARTLY ALLOWED BY HOLDING THAT SUCH REVENUES WERE TAXABLE UNDER SECTION 44BB OF THE ACT AS AGAINST ASSESSEES CONTENTION THAT ONLY TWO PER CENT OF THE GROSS RECEIPTS ON ACCOUNT OF SUPPLIES WERE TAXABLE IN INDIA. 7. WHETHER PREJ UDICE TO THE GENERALITY OF THE ABOVE GROUNDS REGARDING THE TAXABILITY OF THE TOTAL RECEIPTS UNDER THE CONTRACTS AS FTS/ROYALTY, THE LEARNED CIT(APPEALS) ERRED IN HOLDING THAT THE AMOUNT RECEIVED BY THE ASSESSEE AS REIMBURSEMENT OF SERVICE TAX DDIT VS. BAKER HUGHES ASIA PACIFIC LTD, ITA NO. 3881/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 3 IS NOT LIABLE TO BE INCLUDED IN TOTAL TURNOVER FOR COMPUTING TAX LIABILITY EVEN UNDER SECTION 44BB. 7.1 HAVING ONCE HELD THAT THE RECEIPTS OF THE ASSESSEE WERE TAXABLE UNDER SECTION 44BB OF THE ACT, THE ID. CIT(A) HAS ERRED IN PROCEEDING TO HOLD THAT THE AMOUNT RECEIVE D ON ACCOUNT OF SERVICE TAX IS NOT INCLUDIBLE FOR THE PURPOSE OF COMPUTATION OF TAX LIABILITY OF THE ASSESSEE UNDER SECTION 44BB OF THE ACT, NOT APPRECIATING THE FACT THE PROVISIONS OF SECTION 44BB ARE A SELF - CONTAINED CODE PROVIDING FOR COMPUTATION OF PRO FITS AT A FIXED PERCENTAGE OF GROSS RECEIPTS OF THE ASSESSEE AND ALL THE DEDUCTIONS AND EXCLUSIONS FROM INCOME ARE DEEMED TO HAVE BEEN ALLOWED TO THE ASSESSEE. 7.2 WHETHER THE LD CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT ONCE THE RECEIPTS ARE OFFE RED TO TAX U/S 44BB OF THE ACT, THERE IS NO SCOPE FOR COMPUTING OR RE - COMPUTING THE PROFITS BY EXCLUDING ANY ELEMENT OF THE RECEIPTS FROM THE TOTAL TURNOVER AS THE SAME WOULD AMOUNT TO DEFEATING THE VERY PURPOSE OF PROVIDING FOR A SCHEME OF SIMPLER MODE OF COMPUTATION OF PROFITS U/S 44BB OF THE ACT AND OBVIATING THE NEED FOR ACCOUNTING FOR INDIVIDUAL RECEIPTS'AND PAYMENTS ETC. 7.3 WHETHER THE LD. CIT(APPEALS) HAS ERRED IN IGNORING THE RATION OF THE JUDGMENT IN THE CASE OF M/S CHOWRINGHEE SALES BUREAU (P) LT D (82 ITR 542, SC) WHEREIN THE HONBLE APEX COURT HAS HELD THAT THE SALES TAX COLLECTED BY AN ASSESSEE IN THE ORDINARY COURSE OF ITS BUSINESS FORMS PART OF ITS BUSINESS RECEIPTS. OWING TO THE INHERENT SIMILARITY IN THE NATURE OF THE SALES TAX AND SERVICE T AX, THE RATIO OF THE JUDGMENT IN THE SAID CASE IS DIRECTLY APPLICABLE IN THE FACTS OF THE INSTANT CASE. 8. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) HAS ERRED IN HOLDING THAT INTEREST U/S 234B OF THE INCOME TAX ACT , 1961 (THE ACT) WAS NOT CHARGEABLE N THIS CASE IS RELYING UPON THE CASE OF M/S MAERSK [334 ITR 79] 8.1 THE LEARNED CIT(APPEALS) HAS ERRED IN NOT APPRECIATING THE FACT IN THE CASE OF M/S MAERSK WAS DISTINGUISHABLE ON FACTS AS IT DEALT WITH A CASE WHERE T HE EMPLOYER FAILED TO DEDUCT TAX AT SOURCE DESPITE THE SPECIFIC PROVISIONS OF THE ACT IN TERMS OF WHICH THE EMPLOYER WAS MANDATORILY REQUIRED TO DEDUCT TAX FROM THE SALARY PAID TO THE EMPLOYEE. IN THE SAID CASE, THE HONBLE COURT HELD THAT AN EMPLOYEE IS N OT LIABLE TO PAY ADVANCE TAX ON SALARY BECAUSE U/S 192 THERE IS AN OBLIGATION ON THE EMPLOYER TO DEDUCT TAX AT SOURCE. THE CASE DOES NOT LAY DOWN A GENERAL PROPOSITION OF LAW THAT INTEREST U/S 234B IS NOT CHARGEABLE IN ALL CASE PARTICULARLY IN CASES WHERE THE NON RESIDENT ASSESSEE/ PAYEE/ DEDUCTEE HAS PLAYED A ROLE IN INDUCING NON DEDUCTION OR SHORT - DEDUCTION ON THE PART OF THE PAYER/DEDUCTOR. DDIT VS. BAKER HUGHES ASIA PACIFIC LTD, ITA NO. 3881/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 4 8.2 THE LEARNED CIT (APPEALS) HAS ERRED IN FAILING TO TAKE NOTE OF THE OBSERVATIONS OF THE HONBLE HIGH COURT IN TH E CASE OF M/S MITSUBISHI [330 ITR 578 DEL] THAT THE ROLE OF THE ASSESSEE/PAYEE/DEDUCTEE IN SHORT - DEDUCTION OR NON - DEDUCTION OF TAX NEEDS TO BE ASCERTAINED BEFORE CLAIM REGARDING NON - LIABILITY TO INTEREST U/S 234B OF THE ACT IS ACCEPTED, A PROPOSITION AFFIR MED SUBSEQUENTLY IN THE CASE OF M/S ALCATEL LUCENT (JUDGMENT OF DELHI HIGH COURT DATED 07.11.2013 IN ITA NO. 327 & ORS OF 2012). 3. ASSESSEE IS A NON - RESIDENT COMPANY INVOLVED IN EXECUTING CERTAIN CONTRACTS IN INDIA WITH RESPECT TO THE OIL COMPANIES. IT FIL ED ITS RETURN OF INCOME ON 15/10/2010 DECLARING TOTAL INCOME OF RS. 442962960/ THE ABOVE RETURN WAS FURTHER REVISED BECAUSE IN THE ORIGINAL RETURN THE ASSESSEE HAS WRONGLY SHOWN THE GROSS RECEIPTS AS INCOME WHEREAS 10% THEREOF UNDER SECTION 44BB SHOULD HA VE BEEN SHOWN AS AN INCOME. THE LD. ASSESSING OFFICER PICKED UP THE CASE OF THE ASSESSEE FOR EXAMINATION AND CONSEQUENTLY HELD THAT THAT SUCH CONTRACT RECEIPTS ARE RENTAL IN ITS NATURE AND AS ASSESSEE HAS A PERMANENT ESTABLISHMENT IN INDIA AND IS RENDERING SERVICES THROUGH ITS PERMANENT ESTABLISHMENT , PROVISIONS OF SECTION 44DA ARE APPLICABLE. FURTHER AS ASSESSEE HAS NOT PRODUCED ANY DETAILS OF EXPENSES THE LD. ASSESSING OFFICER TOOK 25% PROFIT OF THE TOTAL RECEIPT OF RS. 519587683/ AND DETERMINED THE TOTA L INCOME OF RS. 1 2989 6920/ . THE LD. ASSESSING OFFICER WAS FURTHER OF THE VIEW THAT IDENTICAL VIEW HAS BEEN TAKEN BY HIM IN CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 AND 2008 - 09. HENCE HE PASSED THE DRAFT ASSESSMENT ORDER AGAINST WHICH THE ASSESSEE DID NOT FILE ANY OBJECTION BEFORE THE LD. DISPUTE RESOLUTION PANEL AND THEREFORE HE PASSED THE FINAL ASSESSMENT ORDER DETERMINING THE ABOVE INCOME. 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT (A) WHO ALLOWED THE CLAIM OF THE ASSESSEE THAT INCOME OF THE ASSESSEE IS ASSESSABLE UNDER SECTION 44BB OF THE ACT AND NOT AS FEES FOR TECHNICAL SERVICES / ROYALTY. THEREFORE , REVENUE IS IN APPEAL BEFORE US RAISING SEVERAL GROUN DS OF APPEAL. 5. THE 1 ST ISSUE RAISED BY THE REVENUE IS WHETHER THE RECEIPT OF THE ASSESSEE ON ACCOUNT OF SERVICES AND EQUIPMENT RENTAL IS TAXABLE AS PER THE DDIT VS. BAKER HUGHES ASIA PACIFIC LTD, ITA NO. 3881/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 5 PROVISIONS OF SECTION 44BB OR SECTION 115A READ WITH SECTION 44DA OF THE ACT. THE LD. DEPARTMENTAL R EPRESENTATIVE HEAVILY RELIED ON THE DECISION OF THE LD. ASSESSING OFFICER. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THESE ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 IN ASSESSEES OWN CASE WHEREIN IT HAS BEEN H ELD THAT THE EQUIPMENT RENTAL AND SERVICES PROVIDED BY THE ASSESSEE FALLS WITHIN THE AMBIT OF PROVISIONS OF SECTION 44BB OF THE ACT. HE FURTHER STATED THAT THE ABO VE DECISION HAS BEEN FURTHER UPHELD BY THE HONBLE UTTARAKHAND HIGH COURT WHEREIN THE APPEAL OF THE REVENUE WAS DISMISSED. FURTHER WHILE DECIDING THE ISSUE OF THE TAXABILITY IN CASE OF THE ASSESSEE THE HONBLE HIGH COURT RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF ONGC LTD IN ITA NO. 731 OF 2007 DATED 1/7/2015. HE THEREFORE SU BMITTED THAT NOW THE ISSUE IS SQUARELY DECIDED IN FAVOUR OF THE ASSESSEE. HE FURTHER STATED THAT LD. ASSESSING OFFICER HAS ACCEPTED THE TAXABILITY OF REVENUE AS PER PROVISIONS OF SECTION 44BB IN THE RECENT ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2013 14 AND ASSESSMENT YEAR 2014 15 . 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND ALSO PRODUCED THE ORDERS OF THE LOWER AUTHORITIES. IN THE PRESENT CASE THE HONBLE SUPREME COURT HAS ALREADY DECIDED THIS ISSUE IN ONGC LTD IN 376 ITR 306 WHEREIN IT H AS BEEN HELD THAT THE VARIOUS INCOME RELATED TO SUCH CONTRACTS ARE CHARGEABLE TO TAX UNDER THE PROVISIONS OF SECTION 44BB OF THE INCOME TAX ACT. FURTHER MORE IN THE ASSESSEES OWN CASE THE REVENUE HAS ACCEPTED THAT GROSS RECEIPTS OF THE ASSESSEE IS CHARGEA BLE TO TAX ACCORDING TO THAT SECTION IN ASSESSMENT YEAR 2013 14 AND 2014 15 IN VIEW OF THIS GROUND NO. 1, 2, 3, 4 AND 5 OF THE APPEAL OF THE REVENUE ARE DISMISSED. 7. THE GROUND NO. 6 OF THE APPEAL OF THE REVENUE IS WITH RESPECT TO THE TAXABILITY OF OFFSHORE SUPPLY OF GOODS. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ABOVE ISSUE HAS ALREADY BEEN CONSIDERED IN THE ASSESSEES OWN CASE WHEREIN THE COORDINATE BENC H IS OF THE OPINION THAT SUCH OFFSHORE SUPPLY OF GOODS ARE CONNECTED WITH THE PERMANENT ESTABLISHMENT IN INDIA AND THEN THIS ISSUE HAS BEEN SET ASIDE BACK TO THE DDIT VS. BAKER HUGHES ASIA PACIFIC LTD, ITA NO. 3881/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 6 FILE OF THE LD. ASSESSING OFFICER FOR ATTRIBUTION OF INCOME IN VIEW OF THE DECISION IN ASSESSE ES OWN CASE. IN VIEW OF THIS WE ALSO SET ASIDE THIS GROUND OF APPEAL BACK TO THE FILE OF THE LD. ASSESSING OFFICER TO DECIDE THE ISSUE IN VIEW OF DIRECTION GIVEN IN ITA NO. 5283/DEL/2010 IN ASSESSEES OWN CASE. ACCORDINGLY THE ABOVE GROUNDS OF APPEAL ARE ALLOWED WITH SIMILAR DIRECTIONS. IN THE RESULT GROUND NO. 6 OF THE APPEAL OF THE REVENUE IS ALLOWED ACCORDINGLY. 8. GROUND NO. 7 OF THE APPEAL OF THE REVENUE WAS WITH RESPECT TO WHETHER SERVICE TAX FORMS PART OF THE RECEIPT AS PER THE PROVISIONS OF SECTION 44 BB OF THE INCOME TAX ACT OR NOT. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THIS ISSUE HAS NOW BEEN CONSIDERED BY THE HONBLE DELHI HIGH COURT IN CASE OF MITCHELL DRILLING INTERNATIONAL LTD IN ITA NO. 403/2013 DATED 28/09/2015 WHEREIN IT IS HELD THAT SERVICE TAX BEING STATUTORY LEVY SHOULD NOT FORM PART OF GROSS RECEIPT AS PER PROVISIONS OF SECTION 44BB OF THE ACT. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDERS OF THE LD. ASSESSING OFFICER. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND WE ARE OF THE VIEW THAT THE ABOVE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONBLE DELHI HIGH COURT 380 ITR 130 WHEREIN IT HAS BEEN HELD THAT SERVICE TAX BEING A STATUTORY LEVY CANNOT FORM PART OF THE GROSS RECEIPT FO R THE PURPOSE OF SECTION 44BB OF THE ACT. IN THE RESULT GROUND NO. 7 OF THE APPEAL OF THE REVENUE IS DISMISSED. 9. GROUND NO. 8 OF THE APPEAL OF THE REVENUE IS WITH RESPECT TO THE CHARGEABILITY OF INTEREST UNDER SECTION 234B OF THE INCOME TAX ACT. THE LD. DEP ARTMENTAL REPRESENTATIVE RELIED UPON THE ORDERS OF THE LOWER AUTHORITY AND SUBMITTED THAT THE INTEREST UNDER SECTION 234B OF THE INCOME TAX ACT IS MANDATORY. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE AS SESSEE BY THE DECISION OF THE HONBLE DELHI HIGH COURT IN CIT VERSUS GE PACKAGED POWER 373 ITR 65 WHEREIN IT HAS BEEN HELD THAT INTEREST UNDER SECTION 234B WAS NOT CHARGEABLE IN CASE OF A NON - RESIDENT WHOSE ENTIRE INCOME WAS SUBJECT TO TAX DEDUCTION AT SOU RCE UNDER SECTION 195 OF THE INCOME TAX ACT. DDIT VS. BAKER HUGHES ASIA PACIFIC LTD, ITA NO. 3881/DEL/2014 (ASSESSMENT YEAR: 2010 - 11) PAGE | 7 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND ALSO PRODUCED THE ORDERS OF THE LOWER AUTHORITIES. THE HONBLE DELHI HIGH COURT IN 373 ITR 65 HAS HELD THAT WHEN THE INCOME OF THE NON - RESIDENT ASSESSEE WHI CH IS SUBJECT TO TAX DEDUCTION AT SOURCE UNDER SECTION 195 OF THE INCOME TAX ACT, THE INTEREST UNDER SECTION 234B OF THE ACT CANNOT BE CHARGED FROM THE NON - RESIDENT. THEREFORE RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH COURT WE DISMISS G ROUND NO. 8 OF THE APPEAL OF THE REVENUE. 11. IN THE RESULT APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 0 7 / 0 2 / 2018 . - S D / - - S D / - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 7 / 02 / 2018 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI