O3 Capital Global Advisory Private Limited, Bangalore V. ITO, Bangalore

ITA 546/BANG/2011

• Counselvise Citation: 54621114 RSA 2011
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-12-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 11-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE JT

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NOS.546 & 547/BANG/2011 ASSESSMENT YEARS : 2008-09 & 2009-10 03 CAPITAL GLOBAL ADVISORY PRIVATE LTD., NO.27, MAGRATH ROAD, BANGALORE 56 0001. PAN : AAACO 8819N VS. THE INCOME TAX OFFICER, INTERNATIONAL TAXATION, WARD 1(3), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SMT. SUSAN THOMAS JOSE, JT.CIT(DR) DATE OF HEARING : 18.06.2012 DATE OF PRONOUNCEMENT : 18.06.2012 O R D E R PER N.K. SAINI, ACCOUNTANT MEMBER THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST THE SEPARATE ORDERS EACH DATED 01.02.2011 OF THE CIT(AP PEALS)-IV, BANGALORE. 2. COMMON ISSUES ARE INVOLVED IN BOTH THESE APPEALS , WHICH RELATES TO LICENCE FEES PAID TO NON-RESIDENTS AND A DDITION MADE BY THE ASSESSING OFFICER. ITA NO.546 & 547/BANG/11 PAGE 2 OF 4 3. DURING THE COURSE OF HEARING, THE LD. DR AT THE VERY OUTSET STATED THAT THE PAYMENT WAS MADE BY THE ASSESSEE TO NON- RESIDENTS FOR LICENCE FEES FOR SHRINK WRAPPED SOFT WARE WHICH HAD BEEN CONSIDERED AS PAYMENT OF ROYALTY LIABLE FOR TA X DEDUCTION U/S. 195 OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERR ED TO AS THE ACT IN SHORT] AND NOW THIS ISSUE STANDS COVERED AGAIN ST THE ASSESSEE BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COUR T IN THE CASE OF SAMSUNG ELECTRONICS CO. LTD. V. DCIT IN ITA NO.280 8/2005 & ORS., ORDER DATED 15.10.2011 . 4. RPAD NOTICE FOR HEARING WAS SENT TO THE ASSESSEE , BUT NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHE R ANY ADJOURNMENT WAS SOUGHT. IT THEREFORE APPEARS THAT THE ASSESSEE IS NOT INTERESTED TO PROSECUTE THE MATTER. THE LAW AI DS THOSE WHO ARE VIGILANT, NOT THOSE WHO SLEEP UPON THEIR RIGHTS. TH IS PRINCIPLE IS EMBODIED IN WELL KNOWN DICTUM, VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT. CONSIDERING THE FA CTS AND KEEPING IN VIEW THE PROVISIONS OF RULE 19(2) OF THE INCOME-TAX APPELLATE TRIBUNAL RULES AS WERE CONSIDERED IN THE CASE OF CIT VS. MULTIPLAN INDIA LTD., (38 ITD 320)(DEL) WE TREAT THIS APPEAL AS UNADMITTED. 5. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MADHY A PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (223 ITR 480) WHEREIN IT HAS BEEN HELD AS UNDER: IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEAR ING OF ITA NO.546 & 547/BANG/11 PAGE 3 OF 4 THE REFERENCE, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. 6. SIMILARLY, HONBLE PUNJAB & HARYANA HIGH COURT I N THE CASE OF NEW DIWAN OIL MILLS VS. CIT (2008) 296 ITR 495) RETURNED THE REFERENCE UNANSWERED SINCE THE ASSESSEE REMAINED AB SENT AND THERE WAS NOT ANY ASSISTANCE FROM THE ASSESSEE. 7. THEIR LORDSHIPS OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. B. BHATTACHARGEE & ANOTHER (118 ITR 461 AT PAGE 477-78) HELD THAT THE APPEAL DOES NOT MEAN, MERE FILING OF THE MEMO OF APPEAL BUT EFFECTIVELY PURSUING THE SAME. 8. SO BY RESPECTFULLY FOLLOWING THE VIEW TAKEN IN T HE CASES CITED SUPRA, WE DISMISS THESE APPEALS FILED BY THE ASSESS EE FOR NON- PROSECUTION. 9. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 18 TH DAY OF JUNE, 2012. SD/- SD/- ( SMT. P. MADHAVI DEVI ) ( N.K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 18 TH JUNE , 2012. DS/- ITA NO.546 & 547/BANG/11 PAGE 4 OF 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.