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

ITA 6909/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5201 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: L
• Next Hearing Date: 03-10-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 12-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KUMAR
• Keywords: Revised return
• Section: 143(3); 234B

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES L MUMBAI . . , / . . , ! ' BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI P.M.JAGTAP, ACCOUNTANT MEMBER . / ITA NO. 6909/MUM/2011 $ $ $ $ % % % % / ASSESSMENT YEAR 2009-10 SIEMENS AKTIENGESELLSCHAFT, C/O.B S R & CO., LODHA EXCELUS, 1 ST FLOOR, APOLLO MILLS COMPOUND, MM JOSHI MARG, MAHALAKSHMI, MUMBAI 400011 $ $ $ $ / VS. THE DY. DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION)-2(1), MUMBAI. & ./ ' ./ PAN/GIR NO. : AABCS 8516K ( &( / APPELLANT ) .. ( )*&( / RESPONDENT ) APPELLANT BY SHRI NIRAJ SHETH RESPONDENT BY : SHRI NARENDRA KUMAR $ + / DATE OF HEARING : 03/10//2013 ,-% + / DATE OF PRONOUNCEMENT : 03/10/2013 . / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-11, MUMBAI DATED 19/07/2011 FO R ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: THE FOLLOWING GROUNDS OF APPEAL ARE INDEPENDENT OF , AND WITHOUT PREJUDICE TO, ONE ANOTHER: 1. GROUND NO. 1 . / ITA NO. 6909/MUM/2011 $ $ $ $ % % % % / ASSESSMENT YEAR 2009-10 2 1.1 THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) [CIT(A)) HAS ERRED IN LAW AND ON FACTS IN NOT DELETING THE DEMAND OF RS.776,8 78,160 RAISED BY THE ASSESSING OFFICER (AO). 2 GROUND NO. 2 2.1 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S BY UPHOLDING THAT THE INCOME OF THE APPELLANT IS TAXABLE AT THE RATE OF 4 0% AS LEVIED BY AO IN THE INTIMATION UNDER SECTION (U/S.) 143(1) OF THE INC OME TAX ACT, 1961 (THE ACT) AS AGAINST 10% PRESCRIBED UNDER THE PROVISIONS OF ARTI CLE 12 OF THE INDIA-GERMANY DOUBLE TAXATION AVOIDANCE AGREEMENT (THE TREATY). 2.2 THE LEARNED CIT (A) HAS ERRED IN LAW AND FACTS IN NOT APPRECIATING THAT INTIMATION U/S. 143(1) OF THE ACT WHICH PERTAINS TO THE ORIGINAL RETURN OF INCOME BECOMES INFRUCTUOUS UPON FILING OF REVISED RETURN O F INCOME BY THE APPELLANT. 3 GROUND NO. 3 3.1 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN UPHOLDING THAT SURCHARGE @ 2.5% AND EDUCATION CESS @ 3% IS LEVIABLE NOTWITHS TANDING THAT TAX @ 10% HAS BEEN APPLIED ON THE TOTAL INCOME COMPRISING OF ROYA LTY AND FEES FOR TECHNICAL SERVICES, IN ACCORDANCE WITH THE PROVISIONS OF ARTI CLE 12 OF THE TREATY. 4 GROUND NO. 4 4.1 THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN NOT DELETING THE INTEREST U/S 234B AND 234C OF THE ACT LEVIED BY AO. HE FAIL ED IN APPRECIATING THAT A NON- RESIDENT COMPANY IS NOT REQUIRED TO PAY ADVANCE TAX UNDER THE PROVISIONS OF THE ACT, AS TAX WAS DEDUCTIBLE AT SOURCE ON THE ENTIRE INCOME OF THE APPELLANT U/S. 195 OF THE ACT. 2. WHEN THIS APPEAL WAS TAKEN FOR HEARING, IT WAS P OINTED OUT BY LD. DR THAT THE PRESENT APPEAL HAS BEEN FILED BY THE ASSE SSEE AGAINST ASSESSMENT ORDER PASSED UNDER SECTION 143(1) OF THE INCOME TAX ACT,1961 (THE ACT). HE FURTHER SUBMITTED THAT SUBSEQUENTLY PROCEEDINGS UN DER SECTION 143(3) WERE TAKEN IN THE CASE OF THE ASSESSEE FOR WHICH DRAFT O RDER HAS BEEN PASSED UNDER THE PROVISIONS OF SECTION 143(3) R,W,S, 144C(1) OF THE ACT. HE IN THIS REGARD REFERRED TO THE DRAFT ORDER PASSED BY A.O, COPY OF WHICH HAS BEEN PLACED AT PAGES 165 TO 222 OF THE PAPER BOOK. THUS, LD. DR S UBMITTED THAT THE PRESENT APPEAL FILED BY THE ASSESSEE SHOULD BE DISMISSED O F HAVING BECOME INFRUCTUOUS IN VIEW OF FRESH ASSESSMENT PROCEEDINGS TAKEN BY T HE DEPARTMENT. 3. ON THE OTHER HAND, LD. AR THOUGH DID NOT DISPUTE THAT SUCH PROCEEDINGS HAVE TAKEN PLACE, SUBMITTED THAT IN CASE THE FRESH PROCEEDINGS TAKEN BY THE . / ITA NO. 6909/MUM/2011 $ $ $ $ % % % % / ASSESSMENT YEAR 2009-10 3 DEPARTMENT DO NOT SURVIVE THEN ASSESSEE WOULD LIKE TO PROCEED AHEAD WITH THE IMPUGNED ASSESSMENT WHICH IS FRAMED UNDER SECTION 1 43(1) OF THE ACT. HE SUBMITTED THAT IN CASE PRESENT APPEAL IS CONSIDERE D AS INFRUCTUOUS THEN LIBERTY MAY BE GRANTED TO THE ASSESSEE TO SEEK REVI VAL OF THIS APPEAL IF THE SUBSEQUENT ASSESSMENT PROCEEDINGS TAKEN U/S. 143(3) DOES NOT SURVIVE. 4. ON THIS OBJECTION IT WAS SUBMITTED BY LD. DR THA T DEPARTMENT DOES NOT HAVE ANY OBJECTION IF THE ASSESSEE IS GIVEN LIBERTY TO SEEK REVIVAL OF THIS APPEAL IN CASE SUBSEQUENT PROCEEDINGS TAKEN BY THE DEPARTM ENT UNDER SECTION 143(3) R.W.S. 144C(1) DO NOT SURVIVE. 5. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. A FTER CAREFUL CONSIDERATION, WE FIND SUBSTANCE IN THE SUBMISSION S MADE BY LD. DR. IN VIEW OF SUBSEQUENT ASSESSMENT PROCEEDINGS TAKEN BY THE D EPARTMENT UNDER THE PROVISIONS OF SECTION 143(3) R.W.S. 144C(1), THE PR ESENT ASSESSMENT FRAMED UNDER SECTION 143(1) AGAINST WHICH THIS APPEAL HAS BEEN FILED, HAS BECOME INFRUCTUOUS. HOWEVER, ADDRESSING TO THE APPREHEN SION POINTED OUT BY LD. AR, WE CONSIDER IT JUST AND PROPER TO GIVE LIBERTY TO T HE ASSESSEE TO SEEK REVIVAL OF THIS APPEAL IN CASE SUBSEQUENT PROCEEDINGS TAKEN BY THE DEPARTMENT UNDER SECTION 143(3) R.W.S. 144C(1) CEASED TO SUBSIST FOR ANY REASON. WE DIRECT ACCORDINGLY. IN VIEW OF THE ABOVE OBSERVATIONS, WE DISMISS THE PRESENT APPEAL FILED BY THE ASSESSEE OF HAVING BECOME INFRUCTUOUS . 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/10//20 13 . + ,-% / 0$1 03/10/2013 - + ' SD/- SD/- ( . . / P.M.JAGTAP ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 0$ DATED 03/10/2013 . / ITA NO. 6909/MUM/2011 $ $ $ $ % % % % / ASSESSMENT YEAR 2009-10 4 . . . . + ++ + )23 )23 )23 )23 43% 43% 43% 43% / COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT. 3. 5 ( ) / THE CIT(A)- 4. 5 / CIT 5. 36 )$ , , / DR, ITAT, MUMBAI 6. 7 8 / GUARD FILE. .$ .$ .$ .$ / BY ORDER, *3 ) //TRUE COPY// 9 99 9 / : : : : (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . $ . ./ VM , SR. PS DETAILS DATE INITIALS DESIGNATION . / ITA NO. 6909/MUM/2011 $ $ $ $ % % % % / ASSESSMENT YEAR 2009-10 5 1 DRAFT DICTATED ON 03/10/2013 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 03/10/2013 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER