Larsen & Tourbo Ltd., Baroda V. The Income tax Officer,(Intn.Taxn.), Baroda

ITA 735/AHD/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76683 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 12-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL SRDR
• Keywords: Business income; Double taxation relief; Retrospective amendment; Additional evidence; Permanent establishment
• Section: 201(1)

Judgement Text

, , , , , , , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , . .. . . .. . , , , , '# ' $ '# ' $ '# ' $ '# ' $ BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER ./ I.T.A. NO.735/AHD/2013 ( & ' (' & ' (' & ' (' & ' (' / / / / ASSESSMENT YEAR : 2008-09) LARSEN & TOUBRO LIMITED L&T TECHNOLOGY CENTRE PANKAJ INDUSTRIAL ESTATE CHHANI ROAD, BARODA & & & & / VS. THE ITO (INTERNATIONAL TAX) BARODA ) '# ./*+ ./ PAN/GIR NO. : AAACL 0140 P ( ), / // / APPELLANT ) .. ( -.), / RESPONDENT ) ), / ' / APPELLANT BY : SHRI SANJAY R.SHAH -.), 0 / ' / RESPONDENT BY : SHRI P.L. KUREEL, SR.D.R. &1 0 # / / / / DATE OF HEARING : 20/03/2014 23( 0 # / DATE OF PRONOUNCEMENT : 13/05/2014 '4 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-GANDHINAGAR( CIT(A) FOR SHORT) DATED 31/12/2012 PERTAINING TO ASSESSMENT Y EAR (AY) 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF A PPEAL:- THE APPELLANT BEING DISSATISFIED WITH THE ORDER PAS SED BY THE COMMISSIONER OF INCOME TAX (APPEALS) GANDHINAGAR, (LEARNED COMMISSIONER), PREFERS A APPEAL AGAINST THE SAME ON THE FOLLOWING AMONGST OTHER GROUNDS, WHICH ARE WITHOUT PREJUDICE TO EACH OTHER. 1. THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INC OME TAX (APPEALS) IS ERRONEOUS AND CONTRARY TO THE PROVISIO NS OF LAW & ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 2 - FACTS AND THEREFORE REQUIRES TO BE SUITABLY MODIFIE D. IT IS SUBMITTED THAT IT BE SO DONE NOW. 1.1. THE ORDER PASSED BY THE LEARNED COMMISSIONER I S NOT A SPEAKING ORDER AS NONE OF THE CONTENTIONS OF THE APPELLANT H AVE BEEN DEALT WITH WHILE REJECTING THEM AND ADJUDICATION HAS BEEN MADE SOLELY BASED ON A CASE LAW IN WHICH FACTS WERE DIFFERENT A S ALSO APPELLANTS CONTENTIONS WERE NOT DEALT WITH. IT IS SUBMITTED IT BE SO HELD NOW. 2. LEARNED COMMISSIONER HAS ERRED IN UPHOLDING THE LEA RNED AOS DECISION TO CONSIDER THE APPELLANT TO BE ASSESSEE I N DEFAULT U/S.201(1) OF THE ACT AND SUBJECT TO INTEREST U/S.2 01(1A) OF THE ACT. IT IS SUBMITTED IT BE SO HELD NOW. 2.1 LEARNED COMMISSIONER HAS ERRED IN DISREGARDING THE CONTENTIONS THAT APPELLANT HAS NOT MADE PAYMENT OF ANY INCOME C HARGEABLE TO TAX IN INDIA AND THEREFORE THE QUESTION OF DEDUCTIN G TAX AT SOURCE U/S.195 OF THE ACT DOEST ARISE. IT IS SUBMITTED I T BE SO HELD NOW. 2.2 IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE PAYM ENT MADE BY THE APPELLANT ARE OF NATURE OF BUSINESS INCOME IN THE H ANDS OF THE RECIPIENTS AND IN ABSENCE OF EXISTENCE OF BUSINESS CONNECTION/PERMANENT ESTABLISHMENT OF THE RECIPIENT S IN INDIA THE INCOME IS NOT CHARGEABLE TO TAX IN INDIA. IT IS SU BMITTED TO BE HELD SO NOW. 3. THE LEARNED COMMISSIONER HAS ERRED IN UPHOLDING THE ORDER OF LEARNED ASSESSING OFFICER CONSIDERING THE REMITTANC E MADE BY THE APPELLANT TOWARDS PURCHASE OF COMPUTER SOFTWARE AS ROYALTY PAYMENT FALLING WITHIN THE DEFINITION OF ROYALTY U/S.9(1)(VI) OF THE ACT. IT IS SUBMITTED THAT IT BE SO HELD NOW. 3.1. LEARNED COMMISSIONER HAS ERRED IN NOT FOLLOWIN G THE HONBLE SUPREME COURT DECISION IN CASE OF TATA CONSULTANCY SERVICES V. STATE OF ANDHRA PRADESH [2004] 271 ITR 401 WHEREIN HONBLE COURT HAS CLEARLY HELD THAT TRANSACTION OF SALE OF COMPUTER SOFTWARE PACKAGES IS CLEARLY A SALE OF GOODS. IT IS SUBMITT ED IT BE SO HELD NOW. 4. WITHOUT PREJUDICE TO ANY OTHER GROUND, APPELL ANT CANNOT BE HELD TO BE AN ASSESSEE IN DEFAULT U/S.201&201(1A) OF THE AC T IN VIEW OF THE RETROSPECTIVE AMENDMENT OF THE ACT U/S.9(1)(VI) OF THE ACT VIDE FINANCE ACT, 2012. IT IS SUBMITTED IT BE SO HELD N OW. 4.1. WITHOUT PREJUDICE TO ANY OTHER GROUND, LEARNED COMMISSIONER HAS ERRED IN NOT CONSIDERING THAT EVEN AFTER THE AMENDM ENT, THE DEFINITION OF ROYALTY UNDER THE RELEVANT DTAA IS NA RROWER IN SCOPE COMPARED TO THE SAME UNDER THE ACT AND THE DTAA DEF INITION DOES NOT COVER PAYMENT MADE BY THE APPELLANT WITHIN ITS AMBIT. LEARNED ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 3 - COMMISSIONER HAS FAILED TO APPRECIATE THAT THE HON BLE KARNATAKA HC DECISION IN CASE OF SAMSUNG ELECTRONICS, SOLELY RELIED UPON BY HIM, DOES NOT DEAL WITH THE SAID ISSUE. 4.2. LEARNED COMMISSIONER HAS FAILED TO DEAL WITH A PPELLANTS CONTENTION THAT I CERTAIN DTAAS SIGNED BY INDIA (MA LAYSIA, MORROCO, NAMBIA, RUSSIA, TRINADAD, ETC.), THE DEFIN ITION OF ROYALTY CATEGORICALLY INCLUDES CONSIDERATION PAID FOR USE OF COMPUTER SOFTWARE. IN ABSENCE THEREOF IN THE DTAAS IN THE FACTS OF APPELLANTS CASE, THE PAYMENTS TOWARDS PURCHASE OF COMPUTER SOFTWARE CANNOT BE CLASSIFIED AS ROYALTY EVEN UNDER DTAAS. 5. LEARNED COMMISSIONER HAS ERRED IN HOLDING THA T THE PAYMENTS MADE TOWARDS SOFTWARE MAINTENANCE, TROUBLE SHOOTING ON SOFTWARE PROBLEMS, COMPREHENSIVE TECHNICAL SUPPORT, UPGRADAT ION, FIXING OF BUGS, ETC. ARE PAYMENTS TOWARDS ROYALTY. 5.1.WITHOUT PREJUDICE TO ANY OTHER GROUND, EVEN IF THE PAYMENTS MADE IN THIS REGARD ARE CONSTRUED TO BE FEES FOR TECHNICAL SERVICES U/S.9(1)(VII) OF THE ACT, IT WOULD NOT BE SUBJECTED TO TDS U/S.195 OF THE ACT AS THESE SERVICES DO NOT FALL WITHIN THE AM BIT OF FEES FOR TECHNICAL/INCLUDED SERVICES AS PER THE RELEVANT AR TICLE OF THE DTAA. YOUR APPELLANT PRAYS FOR LEAVE TO ADD, ALTER AND/OR AMEND ALL OR ANY OF THE GROUNDS BEFORE THE FINAL HEARING OF APPEAL. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A O FRAMED AN ORDER U/S.201(1) & 201(1A) R.W.S. 195 OF THE INCOME TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) DATED 28/03/ 2011. WHILE FRAMING THE ORDER, THE ASSESSING OFFICER OBSERVED THAT BEFO RE MAKING THE PAYMENTS AS RECORDED IN HIS ORDER AT PAGE NOS.1, 2 & 3, THE ASSESSEE WAS REQUIRED TO DEDUCT THE TAX U/S.195 OF THE ACT AND D EPOSIT THE SAME IN THE GOVERNMENT ACCOUNT AS THE SAID PAYMENT FOR PURCHASE OF SOFTWARE LICENCE IS ROYALTY U/S.9(1)(VI) AND PAYMENT FOR ANN UAL MAINTENANCE CONTRACT, TECHNICAL SUPPORT, UPGRADES, BUG FIXES, E NHANCEMENT, DATA TRANSFER & UPDATE SERVICES, ETC., IS FEE FOR TECHNI CAL SERVICES U/S.9(1)(VII) OF THE ACT. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEES REPLY FILED ON 18/06/2008, WHICH ARE SUMMARIZED AS UNDER: - ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 4 - (I) THE TRANSACTIONS RELATE TO MAINLY PURCHASE OF STANDARD SOFTWARE LICENSE ON PAYMENT OF SPECIFIED PRICE AND NONE OF THE SOFTWARE IS DEVELOPED AT ASSESSEES INSTANCE/REQUES T AND THEREFORE IT IS MERE PURCHASE OF GOODS AND THE AMC IS ALSO RE LATED TO PURCHASE OF SOFTWARE AND THESE PAYMENTS ARE NOT COV ERED AS ROYALTY. (II) THE AMOUNT PAID TO THE PAYEE IS COVERED AS B USINESS PROFITS UNDER RELEVANT DTAA IN ABSENCE OF PE OF THE PAYEE IN INDIA. (III) BY PURCHASING ANY STANDARD SOFTWARE, THE ASS ESSEE HAS NOT GOT ANY RIGHT TO REPRODUCE, STORE, TRANSLATE OR COP Y THE SOFTWARE. (IV) MAINTENANCE SERVICES FEES IS MAINLY FOR ACQUI RING UPGRADES OF SOFTWARE I.E. PATCH WHICH IS A SMALL SOFTWARE. THE SE SERVICES FOR SUPPORT AND DEBUGGING ASSISTANCE ARE OF VERY LOW VA LUE AND THEY ARE INEXTRICABLY LINKED WITH THE PURCHASE OF SOFTWA RE. THESE PAYMENTS FOR MAINTENANCE FEES HAVE TO BE TREATED AS PAYMENT FOR ACQUIRING SOFTWARE LICENSE OR FOR BASIC ASSISTANCE TO ENABLE USE OF SUCH SOFTWARE LICENSE. AS PURCHASE OF SOFTWARE LIC ENSE IS PURCHASE OF GOODS AND THEREFORE NOT LIABLE TO TAX IN INDIA. (V) SINCE THE PAYMENT IS NOT TAXABLE, THE ASSESSEE IS NOT LIABLE TO DEDUCT TAX AT SOURCE THEREON U/S.195. 2.1. THE ASSESSEE FEELING AGGRIEVED BY THE ORDER, P REFERRED AN APPEAL BEFORE THE LD.CIT(A), WHO PARTLY ALLOWED THE APPEAL . WHILE PASSING THE ORDER, THE LD.CIT(A) FOLLOWED THE DECISION OF HONB LE KARNATAKA HIGH COURT RENDERED IN THE CASE OF CIT VS. SAMSUNG ELECT RONICS CO.LTD. (203 TAXMAN 477) AND HELD THAT THE PAYMENTS FOR GETTING LICENCE OF SOFTWARE ARE THEREFORE HELD TO BE IN THE NATURE OF ROYALTY B OTH UNDER SECTION 9(1)(VI) OF THE ACT AS WELL AS UNDER THE PROVISIONS OF DTAAS. FURTHER, LD.CIT(A) HELD THAT THE PAYMENTS, I.E. ACQUIRING SO FTWARE UPGRADES, ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 5 - CUSTOMER SUPPORT AND DEBUGGING ARE PART AND PARCEL OF THE LICENCE. THEY CANNOT BE TAKEN TO BE SEPARATE FROM THE ACQUISITION OF LICENCE ITSELF AND, THEREFORE, THE ENTIRE PAYMENTS ARE HELD TO BE COVER ED AND TAXABLE AS ROYALTIES UNDER THE PROVISIONS OF SECTION 9(1)(V) A S WELL AS RESPECTIVE DTAAS IN INDIA AND THE AO IS DIRECTED TO TREAT THES E PAYMENTS AS ABOVE INSTEAD OF FEES FOR TECHNICAL SERVICES. THE LD .CIT(A) ALSO DISMISSED THE GROUND OF THE ASSESSEE THAT SECTION 195A IS NOT APPLICABLE IN THE CASE AS THE TAX IS NOT BORNE BY THE APPELLANT UNDER THE AGREEMENT ENTERED INTO BY IT WITH THE CONCERNED PAYEE AND, THEREFORE, IN V IEW THEREOF GROSSING UP IS NOT APPLICABLE IN THE FACTS OF THE APPELLANTS C ASE. THE LD.CIT(A) OBSERVED THAT THE APPELLANT HAS NOT PROVED THAT THE WITHHOLDING TAX WHICH IT IS HELD LIABLE TO AFTER TREATING IT AS THE ASSES SEE IN DEFAULT, WOULD BE RECOVERABLE FROM THE NON-RESIDENT PAYEES, BY WAY O F ANY EXPLICIT OR IMPLICIT AGREEMENT OR UNDERSTANDING. 2.2. AGAINST THE ORDER OF THE LD.CIT(A), THE ASSESS EE IS IN FURTHER APPEAL BEFORE US. 3. APROPOS TO GROUND NOS.1 & 1.1, THE LD.COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) HAS DECIDED AGAINST TH E APPELLANT SOLELY O THE BASIS OF KARATAKA HIGH COURT DECISION IN THE CA SE OF CIT VS. SAMSUG ELECTRONICS CO.LTD. 203 TAXMAN 477 THAT EVEN PURCHA SE OF SOFTWARE AMOUNTS TO PAYMENT OF ROYALTY AND HENCE LIABLE TO T DS UNDER THE PROVISIONS OF IT ACT. THE APPELLANT RESPECTFULLY S UBMITS THAT THEREAFTER RECENTLY DELHI HIGH COURT ON 22/11/2013 IN THE CASE OF DIRECTOR OF INCOME TAX VS. INFRASOFT LTD. REPORTED AT 39 TAXMAN .COM 88, (COPY OF ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 6 - WHICH WAS FILED DURING THE COURSE OF HEARING BEFORE THE HONBLE TRIBUNAL) HAS SPECIFICALLY DEALT WITH THE DECISION OF SAMSUNG ELECTRONICS CO.LTD. AND DISSENTED FROM THE VIEW TAKEN THEREIN. ULTIMATELY, IT IS HELD BY THE DELHI HIGH COURT THAT WHEN THE ASSESSEE PURC HASES A COMPUTER SOFTWARE, THERE IS NO TRANSFER OF COPY RIGHT OR RIG HT TO USE COPY RIGHT BUT A LIMITED RIGHT TO USE THE COPY RIGHTED MATERIALS DOE S NOT GIVE RISE TO ANY ROYALTY INCOME. THE RELEVANT PARAS IN THE DECISION S ARE 86 TO 99. THE DELHI HIGH COURT ALSO ANALYZED THE DIFFERENT AGREEM ENTS FOR PURCHASE OF SOFTWARE (IN PARA 84 TO 86 OF THE JUDGMENT) AND HEL D THAT THE LICENCE GRANTED BY THE SUPPLIER OF THE SOFTWARE IS NON-INCL USIVE, NON-TRANSFERABLE AND THERE IS NO RIGHT GIVEN TO THE LICENSEE TO COPY THEM OR RE-SALE THEM, ETC. WHICH ARE ALSO PARIMATERIA WITH THE TERMS OF L ICENCE GRANTED BY THE SUPPLIERS IN THE APPELLANTS CASE, COPIES OF WHICH ARE ATTACHED IN THE PAPER BOOK NO.1 DATED 15/7/2013, RELEVANT PAGES BEI NG 217, 224, 233, 253 & 255. THUS, THE SUBSEQUENT DECISION OF THE D ELHI HIGH COURT IS ALSO SQUARELY APPLICABLE TO THE FACTS OF THE APPELL ANT AND IT HAS TO BE HELD THAT THE PURCHASE OF SOFTWARE IS NOT ROYALTY AND HE NCE NOT LIABLE TO TDS AS DECIDED BY THE LEARNED AO. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN PARA 95 OF THIS DECISION, THE DELHI HIGH CO URT ALSO HELD THAT IT IS NOT NECESSARY TO GO THROUGH THE SUBSEQUENT AMENDMEN T TO SECTION 9(1)(VI) OF THE ACT FOR THE REASON THAT ASSESSEE IS COVERED BY THE DTAA THE PROVISIONS OF WHICH ARE MORE BENEFICIAL. THE T REATY WHICH WAS EXAMINED IN THAT DECISION AND APPLICABLE TO PRESENT ASSESSEE ARE PARI MATERIA AND HENCE THESE OBSERVATION ARE ALSO APPLIC ABLE TO PRESENT ASSESSEE. COPIES OF TREATIES ARE ATTACHED AT PAGE OS.124 TO 200 OF PAPER- BOOK-II. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE FACT THAT ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 7 - PAYEES DO NOT HAVE PERMANENT ESTABLISHMENT IN INDIA IS ALREADY BROUGHT TO THE NOTICE OF AO AND CIT(A). (REFER PARA 16.14 ON PAGE 30 OF THE PAPER-BOOK-I AND PAGE 63, PARA C 1.5 OF PAPER BOOK- I). THE APPELLANT ALSO RELIES ON SUBMISSIONS MADE BEFORE LEARNED AO A ND CIT(A) WHICH ARE ATTACHED AT PAGE NOS.44 TO 99 AND 1 TO 31 AND 2 56 TO 257 OF PAPER- BOOK NO.1, RESPECTIVELY. THE LD.COUNSEL FOR THE AS SESSEE SUBMITTED THAT THERE IS ONE MORE LEGAL ANGLE TO THIS CONTROVERSY T HAT WHEN THERE ARE TWO DECISIONS FROM DIFFERENT COURTS AGAINST EACH OTHER AND NONE OF THEM IS JURISDICTIONAL HIGH COURT, THE DECISION IN FAVOUR O F THE ASSESSEE HAS TO BE ACCEPTED AS HELD BY HONBLE SUPREME COURT IN CASE O F CIT VS. VEGETABLE PRODUCTS LTD. (88 ITR 192). FOLLOWING THIS ALSO TH E APPEAL OF THE ASSESSEE SHOULD BE ALLOWED FOLLOWING DELHI HIGH COU RT DECISION IN THE CASE OF INFRASOFT LIMITED. 4. APROPOS TO GROUND NOS.2, 2.1 & 2.2, THE LD.COUN SEL FOR THE ASSESSEE SUBMITTED THAT AS PER THE DECIDED CASES, T HE PAYER OF INCOME HAS TO LOOK AT THE LEGAL POSITION PREVALENT ON THE DATE WHEN HE MAKES THE PAYMENT TO DECIDE WHETHER SUCH PAYMENT IS LIABLE TO TDS. IF HE BELIEVES THAT SUCH PAYMENT IS NOT LIABLE TO TAX, HE IS JUSTIFIED IN NOT DEDUCTING TAX AND HE CANNOT BE TREATED AS ASSESSEE IN DEFAULT U/S.201(1) OF THE ACT AND CANNOT BE LIABLE TO ALSO INTEREST U/S.2 01(1A) OF THE ACT. RELIANCE IS PLACED ON FOLLOWING DECISIONS, COPIES O F WHICH ARE ATTACHED WITH THIS COMPILATION. (I) AIR CANADA (DELHI ITAT 88 ITD 545) (II) HCL INFOSYSTEM LTD. (DELHI ITAT 76 TTJ 505) (III)CHENNAI SPECIAL BENCH - PRASAD PRODUCTS PVT.LT D. (125 ITD 263)(SB) ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 8 - 4.1. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PAYMENTS ARE MADE BY THE APPELLANT DURING THE YEAR UNDER CONSIDE RATION FOR PURCHASE OF SOFTWARE TO VARIOUS OVERSEAS PARTIES AND FOR THE IR UPGRADATION, DEBUGGING, MAINTENANCE, ETC. DETAILS OF WHICH ARE G IVEN BY THE LEARNED AO IN THE ASSESSMENT ORDER ON PAGE NO.10, TDS ON WH ICH AS PER THE AO AGGREGATES TO RS.26,26,105/- AND INTEREST U/S.201(1 A) COMES TO RS.11,35,774/-, THUS AGGREGATING TO RS.37,67,879/-. ALL THESE PAYMENTS ARE MADE DURING F.Y. 2007-08 WHEN FOLLOWING DECISIO NS RULED THE ROOST IN FAVOUR OF THE ASSESSEE. COPIES PLACED ON RECORD . (I) DELHI SPECIAL BENCH IN THE CASE OF MOTOROLA 95 ITD 269 DECIDED ON 22/6/2005 (SINCE THE DECISION IS VERY LO NGISH, ONLY HEADNOTES ARE ATTACHED) (II) BANGALORE ITAT IN THE CASE OF SONATA SOFTWAR E 6 SOT 700 DECIDED ON 28/4/2005. (III) BANGALORE ITAT IN THE CASE OF SAMSUNG ELECT RONICS CO.LTD. VS. ITO, 93 TTJ 658 DECIDED ON 18/2/2005. THUS, ON THE BASIS OF THESE DECIDED CASE, INCLUDIN G THAT OF SPECIAL BENCH IN MOTOROLAS CASE, WHICH WERE AVAILABLE AT T HE TIME APPELLANT MADE PAYMENT, THE APPELLANT WAS UNDER A BONA FIDE B ELIEF THAT NO TDS IS REQUIRED TO BE DEDUCTED FROM THE PAYMENTS MADE TO O VERSEAS PAYERS AS IT CONSTITUTED BUSINESS INCOME IN THEIR HANDS AND SINC E SUCH INCOME IS NOT CHARGEABLE TO TAX IN INDIA BECAUSE THEY DO NOT HAVE A PERMANENT ESTABLISHMENT IN INDIA. THE APPELLANT, THEREFORE, CONTENDS THAT ON THIS POINT ALONE ITS APPEAL SHOULD BE ALLOWED AS APPELLA NT CANNOT BE SAID TO BE ASSESSEE IN DEFAULT U/S.201(1) AND CANNOT BE LIABLE TO INTEREST U/S.201(1A). ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 9 - 5. APROPOS TO GROUND NOS.3 & 3.1, THE LD.COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE APPELLANT IN THIS REGARD RELIES ON ITS CONTENTIONS MENTIONED AGAINST GROUND NO.1 AND 1.1 ABOVE. OVER AND ABOVE, THESE CONTENTIONS, THE APPELLANT ALSO RELIES ON THE DECIS ION OF HONBLE SUPREME COURT IN THE CASE OF TATA CONSULTANCY SERVICES VS. STATE OF ANDHRA PRADESH, 271 ITR 401, WHERE PURCHASE OF COMPUTER S OFTWARE IS CONSIDERED AS THAT OF GOODS OR ARTICLES. THE APPEL LANT ALSO RELIES ON THE FOLLOWINGS: (I) DIFFERENCE BETWEEN COPYRIGHT AND COPYRIGHTED ARTICLE AS SUPPORTED BY FOLLOWINGS. (A) OECD COMMENTARY ON MODEL CONVENTION PARA 6.1 TO 6.4 & PARA 7.3 TO 7.7 OF C IT(A) SUBMISSION (RELEVANT PAGES 10 -11 & 13-16 OF PAPER- BOOK-I) (B) MUMBAI ITATS DECISION IN CASE OF ADIT VS. TII TEAM TELECOM INTERNATIONAL PVT.LTD. (2011) 12 TAXMANN.CO M 502) (RELEVANT PAGES 1-14 OF PAPER BOOK-II AT PAGE NO.11, PARA-16). (C) DELHI HIGH COURT DECISION IN CASE OF ERICSSON A.B., NEW DELHI (2011) 16 TAXMAN.COM 371 (RELEVANT PAGE 15-41 OF PAPER-BOOK II AT PAGE NO.15. AT PAGE NO.19 OF THE SAID DECISION IS ALSO DISCUSSED RETROSPECTIVE AMENDMENT MADE BY FINANCE ACT 2007 AND FINANCE ACT 2010 AND STILL HEL D THAT SUCH PAYMENTS ARE NOT LIABLE TO BE TAXED AS ROYALTY ). (D) HONBLE MUMBAI ITATS DECISION IN CASE OF SOLID WOR KS CORPORATION (2012) 18 TAXMANN.COM 189 (RELEVANT PAG E 42- 57 OF PAPER-BOOK-II AT PAGE NO.42 AND PAGE NO.56, R ELEVANT PARA NO.14). (E) DEFINITION OF ROYALTY UNDER DTAA IS ARROW AS COMPAR ED TO DEFINITION UNDER IT ACT AND HENCE ALSO DOES NOT COV ER SALE OF COPYRIGHTED ARTICLE. CIT VS. DAVY ASHMORE INDIA LTD. 190 ITR 626. (RELEVANT PAGES FOR DTAA BETWEEN INDI A & USA AT 124 TO 158 PAPER-BOOK II). ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 10 - 6. APROPOS TO GROUND NOS.4, 4.1 & 4.2, THE LD.COUNS EL FOR THE ASSESSEE SUBMITTED THAT THE RETROSPECTIVE AMENDMENT IN THE ACT CANNOT COMPEL A PERSON TO DO SOMETHING AT AN EARLIER DATE. THIS IS ABSOLUTELY IMPOSSIBLE OF PERFORMANCE. THE DEFIONITION OF ROYA LTY WAS AMENDED BY FINANCE ACT 2010 AND 2012 TO INCLUDE IN ITS SWEEP P ERHAPS THE PURCHASE OF SOFTWARE RETROSPECTIVELY W.E.F. 1/4/1976 BUT THA T DOES NOT MEAN THAT ASSESSEE WHO ACTED BONA FIDE ON THE BASIS OF LAW AS UNDERSTOOD IN F.Y 2007-08 AND DID NOT DEDUCT TDS FROM SUCH PAYMENT SH OULD BE MADE TO SUFFER BY CONSIDERING HIM AS ASSESSEE IN DEFAULT. THE APPELLANT RELIES ON MUMBAI ITAT DECISION IN THE CASE OF CHANNEL GUIDE I NDIA LTD. 25 TAXMAN.COM 25, COPY OF WHICH IS ATTACHED AT PAGE NO .74 TO 86 OF THE PAPER BOOK NO.II AND ALSO AHMEDABAD ITAT DECISION I N THE CASE OF STERLING ABBRESSIVE LTD., A COPY OF WHICH IS ATTACH ED WITH THIS COMPILATION AT PAGE NOS.324 TO 333 AS WELL AS MUMBA I ITAT DECISION IN THE CASE OF NEW BOMBAY PARK HOTEL PVT.LTD., A COPY OF WHICH IS ATTACHED AT PAGE NO.243 TO 249 OF THE PAPER BOOK NO.III FILE D ON 24/10/2013. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN A NY CASE EVEN AFTER CONSIDERING AMENDED PROVISIONS, DELHI HIGH COURT I N THE CASE OF ERICSSON A.B. (SUPRA) HELD THAT STILL PURCHASE OF S OFTWARE IS PURCHASE OF COPYRIGHTED ARTICLE AND NOT ROYALTY AND HENCE NOT L IABLE TO TDS U/S.195. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT DIFF ERENCE IN THE LANGUAGES OF DTAAS INDICATED DIFFERENT INTENTIONS OF PARTIES TO THE AGREEMENT AND THEREBY DIFFERENCE IN THE LANGUAGES OF THE DTAAS T O BE ACCORDINGLY GIVE EFFECT TO (PAGES 108 TO 123 OF PAPER-BOOK II). ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 11 - 7. APROPOS TO GROUND NOS.5 & 5.1, THE LD.COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) HAS CONSIDERED THE PAY MENT FOR MAINTENANCE FEES, CUSTOMER SUPPORT AD UPGRADATION AND DE-BUGGIN G OF SOFTWARE, ETC. AS A PART FO PURCHASE OF SOFTWARE LICENCE AND NOT AS F EES FOR TECHNICAL SERVICES. GOING BY THESE REASONING OF CIT(A) AGAIN ST WHICH DEPARTMENT IS NOT IN APPEAL, THE APPELLANT WOULD LIKE TO RELY ON ITS SUBMISSIONS IN EARLIER FOUR GROUNDS WHEREIN THE CONTENTIONS RAISED FOR CONSIDERING SOFTWARE PURCHASE AS NOT LIABLE TO TDS WILL ALSO IP SO FACTO APPLY TO THE PAYMENT FOR THE ABOVE SERVICES ON THE GROUND THAT T HEY ARE CONSIDERED AS PART OF SOFTWARE LICENCE PURCHASE AND THEREFORE IF THE APPELLANT SUCCEEDS ON EARLIER FOUR GROUNDS ON THE GROUND THAT THE PAYM ENT MADE FOR SOFTWARE PURCHASE IS NOT LIABLE TO TDS, IT SHOULD ALSO SUCCE ED FOR THESE PAYMENTS ON THE SAME REASONING. THE LD.COUNSEL FOR THE ASSE SSEE SUBMITTED THAT WITHOUT PREJUDICE TO ABOVE, HOWEVER, IF THE HONBLE BENCH TAKES A VIEW THAT SOFTWARE PURCHASE IS LIABLE TO TDS ON THE GROU ND THAT IT IS A PAYMENTS TOWARDS ROYALTY, THE APPELLANT WOULD LIKE TO SUBMIT IN SUPPORT OF ITS GROUND NO.5.1 THAT THE MAINTENANCE FEES, TEC HNICAL SUPPORT, DE- BUGGING OF THE SOFTWARE, ETC. ARE NOT ROYALTIES BUT FEES FOR TECHNICAL SERVICES, BUT SINCE THEY ARE NOT MADE AVAILABLE B Y THE OVERSEAS SUPPLIER IN TERMS OF DTAA BETWEEN INDIA AND COUNTRIES OF THE SUPPLIERS, COPIES OF WHICH ARE ATTACHED AT PAGE NOS.124 TO 200 OF PAP ER-BOOK NO.II, THEY ARE NOT LIABLE TO TAX IN INDIA AND HENCE NOT LIABLE TO TDS. RELIANCE IS PLACED ON FOLLOWING DECISIONS: (I) KARNATAKA HIGH COURT IN DE BEERS INDIA MINERAL S (P) LTD. (PAGE 87 TO 100 OF PAPER-BOOK-II AT PAGES 99 TO 100 , PARA 30 & 31). ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 12 - (II) DELHI HIGH COURT IN GUY CARPENTER & CO. (PAGES 101 TO 107 OF PAPER-BOOK-II AT PAGE NO.105 TO 107, PARA 9 TO 1 3) 8. THE ASSESSEE HAS PLACED ON RECORD AN APPLICATION PRAYING THEREIN REQUEST FOR ADMISSION OF THE ADDITIONAL EVIDENCES. 8.1. FOR ADDITIONAL EVIDENCES, THE LD.COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THE APPELLANT HAS IN ITS PAPER-BOOK NO.III FIL ED ON 24/10/2013 WITH THE REGISTRY IN WHICH AT PAGE NO.201 TO 206, ARE TH E CERTIFICATES FROM THE OVERSEAS SUPPLIERS TO THE EFFECT THAT THEY DID NOT HAVE PERMANENT ESTABLISHMENT IN INDIA WITH A REQUEST LETTER THAT T HE SAME BEING ADDITIONAL EVIDENCES BE ADMITTED AS THEY GO TO THE ROOT OF THE ISSUE. IF THE GROUND NO.2 AND SUB-GROUNDS 2.1 & 2.2 OF THE APPELLANT THA T IT WAS NOT LIABLE TO TDS U/S.201(1) AND CONSEQUENTLY NOT LIABLE TO INTER EST U/S.201(1A) FOLLOWING THE CONTENTIONS MENTIONED AGAINST THOSE G ROUNDS IS ALLOWED ON THE GROUND THAT THE APPELLANT WAS NOT LIABLE TO DED UCT TDS DUE TO ITS BONA FIDE BELIEF THAT PAYMENT FOR PURCHASE OF SOFTWARE I S NOT ROYALTY, THEN POSSIBLE THESE ADDITIONAL EVIDENCES MAY NOT BE REQU IRED. HOWEVER, IF THE HONBLE BENCH FEELS THAT THE QUESTION WHETHER SOFTW ARE SALE HAS TO BE CONSIDERED AS BUSINESS INCOME IN THE HANDS OF PAYEE S IS TO BE GONE INTO FOR DETERMINING WHETHER SUCH INCOME ACCRUED IN INDI A, EVEN THEN ON THE BASIS OF THESE ADDITIONAL EVIDENCES IT COULD BE SEE N THAT THE PAYEES DID NOT HAVE PERMANENT ESTABLISHMENT IN INDIA AND HENCE SUCH BUSINESS INCOME IS NOT TAXABLE IN INDIA AND HENCE THE ASSESS EE IS NOT LIABLE TO DEDUCT TDS U/S.201(1) AND CONSEQUENTLY NOT LIABLE T O INTEREST U/S.201(1A). THOUGH THE FACT THAT PAYEES DO NOT HA VE PERMANENT ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 13 - ESTABLISHMENT IN INDIA WAS BROUGHT TO THE NOTICE OF BOTH LEARNED AO AND CIT(A) DURING HEARING BEFORE THEM AS EXPLAINED IN P ARA 16.14 ON PAGE 30 OF PAPER BOOK-I AND PAGE 63, PARA C 1.5 OF PAPER-BO OK I, SINCE THEY NEVER CALLED UPON THE ASSESSEE TO SUBMIT EVIDENCES FOR TH E SAME AS THEY NEVER DEALT WITH THE ISSUE FROM THE PERSPECTIVE OF BUSINE SS INCOME, THESE CERTIFICATES WERE NOT FILED WITH LOWER AUTHORITIES AND HENCE THE NEED FOR ADDITIONAL EVIDENCES WITH A REQUEST TO ADMIT THEM F OR DOING SUBSTANTIAL JUSTICE IN THE MATTER. 9. ON THE CONTRARY, LD.SR.DR SUPPORTED THE ORDERS O F THE AUTHORITIES BELOW AND ALSO OPPOSED THE ADMISSION OF THE ADDITIO NAL EVIDENCES. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT GROUND NO.1.1 OF THE ASSESSEE IS THAT THE ORDER PASSED BY THE LD.COMMISSIONER IS NOT A SPEAKING ORDER AS NONE OF THE CONTENTIONS OF THE APPELLANT HAVE BEEN DEALT WITH WHILE REJECTING THEM AND ADJUDICATION HAS BEEN MADE SOLELY BASED ON A CASE LAW IN WHICH FACTS WERE DIFFERENT AS ALSO APPELLANTS CONTENTIONS WERE NOT DEALT WITH. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT A DIFFERENT VIEW HAS BEEN T AKEN BY THE HONBLE HIGH COURT OF DELHI IN THE CASE OF DIRECTOR OF INCO ME TAX VS. INFRASOFT LTD. REPORTED AT (2013) 39 TAXMANN.COM 88 (DELHI). HE SUBMITTED THAT THE DECISION IS BASED SOLELY ON THE JUDGEMENT OF HO NBLE KARNATAKA HIGH COURT IN THE CASE OF SAMSUNG ELECTRONICS CO.LTD. H E ALSO DREW OUR ATTENTION TO THE DECISION OF ITAT DELHI A SPECIA L BENCH RENDERED IN THE CASE OF MOTOROLA INC. VS. DY.CIT REPORTED AT (2 005) 95 ITD 269 ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 14 - (DEL)(SB) AND ALSO TO THE DECISION OF ITAT BANGALOR E B BENCH RENDERED IN THE CASE OF SONATA SOFTWARE LTD. VS. IT O REPORTED AT (2006) 6 SOT 700 (BANG). IN THE CASE OF SONATA SOFTWARE LTD . VS. ITO, THE TRIBUNAL HAS HELD AS UNDER:- 4. WE HAVE CONSIDERED THE RELEVANT FACTS AND ARGUM ENTS ADVANCED. THIS TRIBUNAL IN THE CASE OF SAMSUNG ELE CTRONICS CO.LTD. VS. ITO (2005) 93 TTJ (BANG) 658 (ITA NOS.2 64 TO 266/BANG/2002, DATED 18 TH FEB., 2005) HAS RECENTLY HELD THAT WHERE THE SOFTWARE IMPORTED WHICH IS A SHRINK WRAPP ED SOFTWARE OR OFF THE SHELF SOFTWARE, SAME AMOUNTS TO PURCHASE OF GOODS AND NOT PAYMENT OF ROYALTIES. THE PAYMENT IS FOR USE O F COPY RIGHTS ARTICLE AND NOT FOR ACQUIRING ANY COPY RIGHT. THIS VIEW HAS BEEN ARRIVED AT AFTER CONSIDERING VARIOUS DECISIONS ON T HE SUBJECT AS WELL AS THE DECISION OF HONBLE SUPREME COURT IN TA TA CONSULTANCY SERVICES CASE (SUPRA). WE, ACCORDINGL Y, HOLD THAT THE PAYMENTS FOR IMPORT OF SOFTWARE DO NOT AMOUNT T O PAYMENT OF ROYALTY CHARGEABLE UNDER S.9(1)(VI) OF THE ACT. TH E PAYMENTS PARTAKES THE CHARACTER OF PURCHASE AND SALE OF GOOD S. ACTUALLY, THE PAYEE HAS NO PERMANENT ESTABLISHMENT IN INDIA. HENCE, IT CAN BE CONCLUDED THAT NO INCOME IS DEEMED TO ACCRUE OR ARISE IN INDIA. ACCORDINGLY, THE PROVISION OF S.195 IS NOT APPLICAB LE TO SUCH PAYMENT. THE ASSESSEE THEREFORE CANNOT BE FASTENED WITH LIABILITY BY TREATING IT AS IN DEFAULT UNDER S.101 OF THE AC T. WE, ACCORDINGLY, SET ASIDE THE ORDER UNDER S. 201(1) AS WELL AS CHARGING OF INTEREST UNDER S.201(1A) OF THE ACT. 10.1. THE LD.COUNSEL FOR THE ASSESSEE HAS ALSO RELI ED ON THE JUDGEMENT OF THE HONBLE HIGH COURT OF DELHI RENDERED IN THE CAS E OF DIRECTOR OF INCOME-TAX VS. INFRASOFT LTD.(SUPRA). THE HONBLE H IGH COURT IN THE SAID CASE VIDE PARAS 98 & 99 HAS HELD AS UNDER:- 98. WE ARE NOT IN AGREEMENT WITH THE DECISION OF THE ANDHRA PRADESH HIGH COURT IN THE CASE OF SAMSUNG ELECTRONI CS ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 15 - CO.LTD. (SUPRA) THAT RIGHT TO MAKE A COPY OF THE SO FTWARE AND STORING THE SAME IN THE HARD DISK OF THE DESIGNATED COMPUTER AND TAKING BACKUP COPY WOULD AMOUNT TO COPYRIGHT WORK U NDER SECTION 14(1) OF THE COPYRIGHT ACT AND THE PAYMENT MADE FOR THE GRANT OF THE LICENCE FOR THE SAID PURPOSE WOULD CONSTITUTE R OYALTY. THE LICENSE GRANTED TO THE LICENSEE PERMITTING HIM TO D OWNLOAD THE COMPUTER PROGRAMME AND STORING IT IN THE COMPUTER F OR HIS OWN USE WAS ONLY INCIDENTAL TO THE FACILITY EXTENDED TO THE LICENSEE TO MAKE USE OF THE COPYRIGHTED PRODUCT FOR HIS INTERNA L BUSINESS PURPOSE. THE SAID PROCESS WAS NECESSARY TO MAKE TH E PROGRAMME FUNCTIONAL AND TO HAVE ACCESS TO IT AND IS QUALITAT IVELY DIFFERENT FROM THE RIGHT CONTEMPLATED BY THE SAID PROVISION B ECAUSE IT IS ONLY INTEGRAL TO THE USE OF COPYRIGHTED PRODUCT. T HE RIGHT TO MAKE A BACKUP COPY PURELY AS A TEMPORARY PROTECTION AGAI NST LOSS, DESTRUCTION OR DAMAGE HAS BEEN HELD BY THE DELHI HI GH COURT IN DIT VS. M/S.NOKIA NETWORKS OY (SUPRA) AS NOT AMOUNT ING TO ACQUIRING A COPYRIGHT IN THE SOFTWARE. 99. IN VIEW OF THE ABOVE WE ACCORDINGLY HOLD THAT W HAT HAS BEEN TRANSFERRED IS NOT COPYRIGHT OR THE RIGHT TO USE CO PYRIGHT BUT A LIMITED RIGHT TO USE THE COPYRIGHTED MATERIAL AND D OES NOT GIVE RISE TO ANY ROYALTY INCOME. 11. AFTER CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND COUPLED WITH THE FACTS THAT THE ASSESSEE H AS FILED AN APPLICATION FOR ADMITTING THE ADDITIONAL EVIDENCES, WE ARE OF T HE CONSIDERED VIEW THAT THE ENTIRE ISSUES REQUIRE A FRESH ADJUDICATION AT T HE LEVEL OF LD.CIT(A). THEREFORE, THE IMPUGNED ORDER OF THE LD.CIT(A) IS H EREBY SET ASIDE AND THE APPEAL IS RESTORED BACK TO THE FILE OF LD.CIT(A ) TO DECIDE IT AFRESH BY A SPEAKING ORDER AFTER CONSIDERING ALL THE CASE-LAWS AS RELIED UPON BY THE LD.COUNSEL FOR THE ASSESSEE AND ALSO THE ADDITIONAL EVIDENCES AS PLACED ON ITA NO.735/AHD/ 2013 LARSEN & TOUBRO LTD. VS. ITO (INTERNATIONAL) TAX ASST.YEAR 2008-09 - 16 - RECORD BY THE ASSESSEE. NEEDLESS TO SAY THAT THE L D.CIT(A) WILL SEEK A REMAND REPORT FROM THE AO BEFORE PASSING THE ORDER AFRESH. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED BUT FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HER EINABOVE AT CAPTION PAGE SD/- SD/- ( .. ) ( ) '# ( T.R. MEENA ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13/ 05 /2014 ..&, .&../ T.C. NAIR, SR. PS '4 0 -7 8'7( '4 0 -7 8'7( '4 0 -7 8'7( '4 0 -7 8'7(/ COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. 9 / CONCERNED CIT 4. 9() / THE CIT(A)-GANDHINAGAR 5. 7: -& , , / DR, ITAT, AHMEDABAD 6. :;' <1 / GUARD FILE. '4& '4& '4& '4& / BY ORDER, .7 - //TRUE COPY// = == =/ // / * * * * ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 7.5.14 (DICTATION-PAD 12-PAG ES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 8.5.14 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.13.5.14 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13.5.14 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER .. 10. DATE OF DESPATCH OF THE ORDER