JC Bamford Investments Ltd., England V. DCIT (International Taxation), New Delhi

ITA 738/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8269 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I1
• Next Hearing Date: 03-03-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 11-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SH ANURAG SHARMA
• Assessee Lawyers: VINEET JAIN CA SH SANJAY ARORA
• Keywords: Double taxation relief; Application of stay; Permanent establishment
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I-1, NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. BE ENA A. PILLAI, JM ITA NO. 738/DEL/2016 ASSESSMENT YEAR : 2011-12 & STAY APPLICATION NO. 79/DEL/2016 (IN ITA NO. 7 38/DEL/2016) ASSESSMENT YEA R : 2011-12 JC BAMFORD INVESTMENTS LTD. ROCESTER, UTTOXETER, ST 14 5JP, STAFFORDSHIRE ENGLAND VS DCIT (INTERNATIONAL TAXATION) CIRCLE-(2)(1)(2), NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AACCJ0726B APPELLANT BY : SH. VINEET JAIN, CA, SH. SANJAY ARORA, CA RESPONDENT BY : SH. SH. ANURAG SHARMA, SR. DR DATE OF HEARING :03.03.2016 DATE OF PRONOUNCEMENT: . 08. 04.2015 ORDER PER N.K. SAINI, A.M. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 4.12.2015 OF THE AO PASSED U/S 144C(13) READ WITH SECTION 143(3) OF THE IT ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AND VIDE STAY APPLICATION NO. 79/DEL/2016 THE ASSESSEE SOUGHT THE STAY OF OUTSTANDING DEMAND OF R S. 21,26,15,744/-. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN T HIS APPEAL BY THE ASSESSEE :- S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 2 1. THE LEARNED DISPUTE RESOLUTION PANEL ('LD. DRP') AND LEARNED ASSESSING OFFICER ('LD. AO') ERRED IN FOLLOWING THE ORDER OF AY 2010-11 WITHOUT GIVING DUE CONSIDERATION TO THE SUBMISSIONS OF THE ASSESSEE. 2. THE LD. DRP AND LD. AO ERRED IN HOLDING THAT ASS ESSEE HAS A SERVICE PERMANENT ESTABLISHMENT ('PE') IN INDIA WIT HIN THE MEANING OF ARTICLE 5 OF INDIA UK DOUBLE TAXATION AVOIDANCE AGR EEMENT ('DTAA'). 3.THE LD. DRP AND LD. AO ERRED IN HOLDING THAT THE ASSESSEE HAS A SERVICE PE IN INDIA UNDER ARTICLE 5(2)(K) OF THE DT AA WITHOUT APPRECIATING THAT: - -TECHNOLOGY TRANSFER AGREEMENT ('TT A') DATED MARCH 5, 2004 READ WITH INTELLECTUAL PROPERTY AGREEMENT ('IP A') DATED DECEMBER 17, 2007 AND INTERNATIONAL PERSONNEL ASSIG NMENT AGREEMENT ('IP AA') DATED DECEMBER 5, 2005 ARE INDEPENDENT CO NTRACTS FOR MATERIALLY DIFFERENT PURPOSES. -IP AA BETWEEN JC BAMFORD EXCAVATORS LIMITED ('JCBE ') AND JCB INDIA LIMITED ('JCB INDIA') PROVIDES FOR EMPLOYEES SENT BY JCBE TO JCB INDIA ON DEPUTATION (SECONDMENT) WHICH IS ADMIT TEDLY AS PER SPECIFIC REQUIREMENTS OF JCB INDIA AND NOT FOR SERV ICES IN RELATION TO TTA OR IPA. -SECONDED EMPLOYEES SENT AS PER ARRANGEMENT UNDER I PAA ARE EMPLOYEES OF JCB INDIA. 4. WITHOUT PREJUDICE TO GROUND NO. 3, UNDER THE FAC TS AND CIRCUMSTANCES OF THE CASE AND UNDER LAW, THE LD. DR P AND LD. AO HAS GROSSLY ERRED IN HOLDING THAT ROYALTY EARNED BY THE ASSESSEE IS EFFECTIVELY CONNECTED TO ALLEGED SERVICE PE OF THE ASSESSEE IN INDIA AND HAS FAILED TO APPRECIATE THAT: -INTANGIBLE PROPERTY IN RESPECT OF WHICH ROYALTY H AS BEEN PAID WAS WHOLLY DEVELOPED OUTSIDE INDIA; -NO FUNCTIONS, ASSETS OR RISKS ASSOCIATED WITH SUCH INTANGIBLE PROPERTY IS UNDERTAKEN OR PRESENT IN INDIA; 5. WITHOUT PREJUDICE TO ABOVE GROUNDS, UNDER THE FA CTS AND CIRCUMSTANCES OF THE CASE, THE LD. DRP AND LD. AO H AS ERRED IN NOT APPLYING THE DESIRED COMPUTATION MECHANISM FOR CHAR GEABILITY OF ROYALTY INCOME ALLEGED TO BE COVERED UNDER PROVISIO NS OF ARTICLE 7 OF THE DTAA BETWEEN INDIA AND UK. THE LD DRP AND LD. AO H AS FAILED TO APPRECIATE THAT: -UNDER ARTICLE 7(1) READ WITH ARTICLE 7(2) & 7(3) O F THE DTAA BETWEEN INDIA AND UK, THE ENTIRE ROYALTY RECEIVED FROM INDI A CANNOT BE S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 3 SUBJECTED TO TAX IN INDIA SINCE NO FUNCTIONS, ASSET S AND RISKS ARE ASSOCIATED WITH THE ALLEGED PE IN INDIA; -ROYALTY INCOME ALLEGED TO BE CONSIDERED AS BUSINES S INCOME UNDER ARTICLE 7 OF THE DTAA BETWEEN INDIA AND UK CAN BE T AXED ONLY TO THE EXTENT OF PROFITS ATTRIBUTABLE TO INDIAN OPERATIONS . THE LD. DRP AND LD. AO THUS GROSSLY ERRED IN DETERMINING THE TAXABILITY APPLYING ARBITRARY MECHANISM UNDER RULE 10(III) OF THE INCOME TAX RULE S, 1962 AND IGNORING THE PRINCIPLE OF APPORTIONMENT AS LAID DOW N UNDER RULE 10(II) OF THE INCOME TAX RULES, 1962 WHICH IS CONSISTENT W ITH THE PROVISIONS OF ARTICLE 7(3) OF THE DT AA BETWEEN INDIA AND UK. 6. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE LD. DRP AND LD. AO HAS FAILED TO APPRECIATE THAT THE INDIAN COMPANY I.E. J CB INDIA IS A PROFITABLE COMPANY AND AS LONG AS THE SAME IS EARNI NG PROFIT AT ARM'S LENGTH, NO FURTHER ATTRIBUTION IS POSSIBLE EVEN IN CASE OF AN ALLEGED PE. 7. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. DRP AND LD. AO ERRED IN NOT FOLLOWING THE HON'BLE INCOME TAX APPELLATE TRIBUNAL ORDER IN ASSESSEE'S CASE FOR AY 2008-09 WHERE IT HAS BEEN HELD THAT ROYALTY EARNED BY THE ASSESSEE IS NO T EFFECTIVELY CONNECTED TO ALLEGED SERVICE PE OF THE ASSESSEE IN INDIA. 8. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. AA WHILE FRAMING THE ASSESSMENT ORDER HAS ERRONEOUSLY ERRED IN NOT FOLLOWING THE DIRECTION OF LD. DRP BY ALLOWING EXPE NSES AT A LOWER AMOUNT OF INR 329,238,504/- INSTEAD OF INR 411,548, 129/- (1/3RD OFTHE AMOUNT ATTRIBUTED TO ALLEGED SERVICE PE IN INDIA, A S DIRECTED BY LD. DRP). 9. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. DRP AND LD. AO ERRED IN LEVYING INTEREST UNDER SECT ION 234A, 234B, 234C AND 234D OF THE ACT. 10. THE LD. AO ERRED IN INITIATING PENALTY PROCEEDI NGS UNDER SECTION 271(1)(C) OF THE ACT FOR FURNISHING INACCURATE PART ICULARS OF INCOME. THAT THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUD ICE TO EACH OTHER. THAT THE APPELLANT RESERVES ITS RIGHT TO ADD, ALTER , AMEND OR WITHDRAW ANY GROUND OF APPEAL EITHER BEFORE OR AT THE TIME O F HEARING OF THIS APPEAL. 3. GRIEVANCE OF THE ASSESSEE VIDE GROUND NOS. 1 TO 3 IS THAT AS TO WHETHER THE ASSESSEE HAS PERMANENT ESTABLISHMENT (PE IN INDIA O R NOT ). AS REGARDS TO THIS S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 4 ISSUE THE LD COUNSEL FOR THE ASSESSEE AT THE VERY O UTSET STATED THAT THIS ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE VIDE EARLIER ORDE R DATED 4.7.2014 IN ITA NO. 80/DEL/2013 FOR THE ASSESSMENT YEAR 2008-09 AND ORD ER DATED 8.4.2015 IN ITA NO. 6573/DEL/2014 FOR THE ASSESSMENT YEAR 2010-11. THE LD. DR IN HIS RIVAL SUBMISSIONS SUBMITTED THAT THIS ISSUE HAS ALREADY B EEN DECIDED AGAINST THE ASSESSEE IN ASSESSEES OWN CASE IN THE PRECEDING ASSESSMENT YEARS. 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES, IT IS NOTICED THAT THIS ISSUE HAS BEEN DECIDED AGAINST TH E ASSESSEE IN THE PRECEDING YEAR VIDE AFORESAID REFERRED TO ORDER DAT ED 04.07.2014 WHEREIN RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 4 WHICH READ AS UNDER: 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT I N THE EARLIER YEARS, JCBE LICENSED INTELLECTUAL PROPERTY RIGHTS F OR MANUFACTURE OF EXCAVATORS UNDER THE BRAND NAME 3DX TO JCBI. HO WEVER, BY VIRTUE OF NEW AGREEMENT ENTERED ON 17.12.07 W.E.F. 01.04.07 AMONGST THE ASSESSEE, JCBE AND JCBI, THE INTELLECTU AL PROPERTY RIGHTS CAME TO BE SUB-LICENSED TO THE ASSESSEE WITH OUT INTERFERING IN ANY MANNER ITS ACTUAL EXPLOITATION BY JCBI. ALL THE TERMS AND CONDITIONS FOR THE USE OF SUCH RIGHTS BY JCBI UNDER TTA AND IPAA ARE SAME. THE ONLY DIFFERENCE THAT CAME INTO T HE HITHERTO ARRANGEMENT WAS THAT WHEREAS EARLIER JCBI WAS PAYIN G ROYALTY DIRECTLY TO JCBE, NOW IT IS BEING ROUTED THROUGH TH E ASSESSEE WITH THE DEDUCTION OF 0.05%. THE QUESTION OF A SERV ICE PE OF JCBE IN INDIA CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL FOR ASSESSMENT YEARS 2006-07 AND 2007-08. VIDE ITS ORDE R FOR THE AY 2006-07, THE TRIBUNAL CATEGORIZED EMPLOYEES OF JCBE ON DEPUTATION TO INDIA ON ASSIGNMENT BASIS IN THE FIRS T CATEGORY AND THOSE DOING STEWARDSHIP ACTIVITIES AND INSPECTION A ND TESTING IN THE SECOND CATEGORY. JCBI HAS BEEN HELD TO BE CONST ITUTING A SERVICE PE OF JCBE IN INDIA BECAUSE OF THE EMPLOYEE S OF THE FIRST CATEGORY. THE MATTER OF THE ESTABLISHMENT OF PE FOR THE CURRENT YEAR WOULD HAVE BECOME A COVERED MATTER FOR THE CUR RENT YEAR IF S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 5 THERE HAD NOT BEEN THE NEW FACTOR OF THE TRIPARTITE AGREEMENT DATED 17.12.2007, UNDER WHICH JCBE SUB-LICENSED THE INTELLECTUAL PROPERTY RIGHT TO THE ASSESSEE TO MAN AGE THE LICENSING OF JCB UKS INTELLECTUAL PROPERTY TO JCB INDIA GOING FORWARD.. TO BUTTRESS THE VIEW THAT THE EMPLOYEES OF JCBE CONSTITUTED SERVICE PE OF THE ASSESSEE IN INDIA, TH E AO HAS OBSERVED THAT THE EMPLOYEES OF JCBE, EARLIER SECOND ED TO JCBI, CONTINUED TO RENDER SERVICES TO JCBI DURING THE YEA R IN QUESTION IN THE SAME WAY AS THEY WERE DOING IN THE PAST. TH IS POSITION WAS NOTICED BY VIRTUE OF CLAUSE (D) OF THE NEW AGRE EMENT AND CLAUSE 4.2 OF THIS AGREEMENT WHICH CLARIFIES THAT T HE DELIVERY OF TECHNICAL DOCUMENTATION AND MAKING AVAILABLE OF TEC HNICAL PERSONNEL AS SET OUT IN EARLIER CLAUSES III AND IV OF THE TECHNOLOGY AGREEMENT SHALL REMAIN UNAFFECTED BY THI S AGREEMENT AND SHALL CONTINUE AS RIGHTS AND OBLIGATIONS BETWEE N JCBE AND JCBI UNDER THE TECHNOLOGY AGREEMENT. THE AO HELD T HAT THE ABOVE DETAILS COUPLED WITH THE FACT THAT JCBE RECEI VED 99.5% OF ROYALTY FROM THE ASSESSEE LEFT NOTHING TO DOUBT THA T THERE WAS SERVICE PE OF THE ASSESSEE AS PER ARTICLE 5(2)(K) O F THE DTAA COVERED WITHIN THE AMBIT OF OTHER PERSONNEL. SIN CE THIS POSITION HAS BEEN CANDIDLY ACCEPTED BY THE LD. AR AS WELL, W E, THEREFORE, REFRAIN FROM ANY INDEPENDENT EVALUATION OF THIS ASP ECT. THE LD. AR ACCENTUATED THAT HIS OBJECTIONS AGAINST THE HOLD ING OF THE SERVICE PE OF THE ASSESSEE IN INDIA WERE PRACTICALL Y THE SAME WHICH WERE TAKEN FOR THE EARLIER YEARS. THE TRIBUNA L HAS DISCUSSED AND JETTISONED SUCH OBJECTIONS IN ITS ORD ER FOR THE A.Y. 2006-07. UNDER SUCH CIRCUMSTANCES AND FOLLOWING TH E PRECEDENT, WE HOLD THAT ALL THE REQUISITE CONDITION S FOR ATTRACTING THE MANDATE OF ARTICLE 5(2)(K) ARE SATISFIED INASMU CH AS (I) THERE IS FURNISHING OF SERVICES INCLUDING MANAGERIAL SERV ICES; (II) SUCH SERVICES ARE OTHER THAN THOSE TAXABLE UNDER ARTICLE 13 (ROYALTIES AND FEES FOR TECHNICAL SERVICES); (III) SUCH SERVIC ES ARE RENDERED OUT OF INDIA; (IV) SUCH SERVICES ARE RENDERED BY O THER PERSONNEL; AND (V) SUCH ACTIVITIES CONTINUED FOR A PERIOD OF MORE THAN 90 DAYS WITHIN 12 MONTHS PERIOD. IT IS THUS HELD THAT THE SERVICE PE OF THE ASSESSEE IS ESTABLISHED IN INDIA. THESE GROUNDS ARE, THEREFORE, NOT ALLOWED. S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 6 5. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFE RRED TO ORDER IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2008-09, THE ISSUE AGI TATED VIDE GROUND NOS. 1 TO 3 IS DECIDED AGAINST THE ASSESSEE BY HOLDING THAT THE SE RVICES PE OF THE ASSESSEE IS ESTABLISHED IN INDIA. 6. VIDE GROUND NO. 4 AND 5 THE ISSUE AGITATED RELATES TO THE ROYALTY EARNED BY THE ASSESSEE AND GROUND NO. 6 RELATES TO THE EARNIN G OF PROFIT BY ASSESSEE AT ARMS LENGTH. AS REGARDS TO THESE ISSUES, THE LD. COUNS EL FOR THE ASSESSEE SUBMITTED THAT THESE ISSUES ARE SIMILAR TO THE ISSUES INVOLVED IN THE EARLIER YEARS WHICH HAD BEEN ADJUDICATED BY THE ITAT DELHI BENCH D, NEW DELHI VIDE ORDER DATED 04.07.2014 IN ITA NO. 80/DEL/2013 FOR THE ASSESSMENT YEAR 2008 -09 AND ORDER DATED 08/04/2015 IN ITA NO. 6573/DEL/2014 FOR THE ASSESSM ENT YEAR 2010-11. COPY OF THE SAID ORDER WAS FURNISHED WHICH HAS PLACED ON RE CORD. 7. IN HER RIVAL SUBMISSIONS THE LD. CIT DR ALTHOUGH SUPPORTED THE ORDER OF THE AO BUT COULD NOT CONTROVERT THE AFORES AID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 8. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES AND MATERIAL AVAILABLE ON THE RECORD. IT IS NOTICED THA T IDENTICAL ISSUES HAVING SIMILAR FACTS HAVE BEEN DECIDED BY THE ITAT DELHI BENCH D, NEW DELHI VIDE ORDER DATED 04.07.2014 IN ITA NO. 80 /DEL/2013 WHEREIN RELEVANT FINDINGS HAVE BEEN GIVEN IN PARA 5 WHICH READ AS UNDER: 5. THE NEXT MAJOR ISSUE RAISED THROUGH VARIOUS GRO UNDS IS AGAINST THE HOLDING BY THE AO THAT THE ROYALTY EARN ED BY THE ASSESSEE WAS EFFECTIVELY CONNECTED WITH THE SERVICE PE OF TH E ASSESSEE IN INDIA. WE FIND THAT SIMILAR ISSUE WAS THERE AND HAS BEEN E LABORATELY S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 7 DISCUSSED IN THE AFORE STATED ORDER OF THE TRIBUNAL FOR THE EARLIER YEARS. THE TRIBUNAL HAS HELD THAT THE TOTAL AMOUNT CONSIST ING LUMPSUM LICENCE/KNOW-HOW FEES AND ALSO ROYALTY AS MENTIONED IN PARA 2.2 OF TTA WAS CONSIDERATION FOR THE TRANSFER OF IP RIGHTS SIMPLICITOR AND ALSO THE SERVICE RENDERED BY THE EMPLOYEES OF THE S ECOND CATEGORY. THE TRIBUNAL FURTHER HELD THAT IN SO FAR AS THE QUE STION OF ROYALTY REPRESENTING CONSIDERATION FOR THE TRANSFER OF IP R IGHTS SIMPLICITOR WAS CONCERNED, THE SERVICE PE REPRESENTING THE DEPUTATI ONISTS HAD NO ROLE TO PLAY EITHER IN CREATING OR MAKING IT AVAILABLE T O JCB INDIA. THAT IS HOW THE TRIBUNAL CAME TO HOLD THAT THE SAME WAS NOT EFFECTIVELY CONNECTED WITH THE SERVICE PE OF THE ASSESSEE IN IN DIA. THE AMOUNT OF ROYALTY AND CONSIDERATION FOR RENDERING OF SERVICES BY THE EMPLOYEES OF SECOND CATEGORY HAS BEEN HELD TO BE NOT FALLING IN PARA 6 OF ARTICLE 13 AND HENCE CHARGEABLE TO TAX AS PER PARA 2 OF ART ICLE 13 OF THE DTAA. HOWEVER, AS REGARDS THE FEES FOR TECHNICAL S ERVICES RESULTING FROM THE RENDERING OF SERVICES BY THE EMPLOYEES OF THE SECOND CATEGORY, THE TRIBUNAL HAS HELD THAT THE SAME DID N OT FALL IN PARA 6 OF ARTICLE 13 AND WAS, HENCE, CHARGEABLE TO TAX AS PER PARA 2 OF THE ARTICLE 13 OF THE DTAA. AS REGARDS THE CONSIDERATI ON FOR THE EMPLOYEES OF THE FIRST CATEGORY, THE TRIBUNAL HAS H ELD THAT THE FEES FOR TECHNICAL SERVICES IN RELATION TO SUCH EMPLOYEES WA S COVERED WITHIN PARA 6 OF ARTICLE 13 OF THE DTAA. THAT IS HOW, THE TRIBUNAL CONCLUDED THAT THE CONSIDERATION FOR RENDERING OF SERVICES BY THE EMPLOYEES OF FIRST CATEGORY WAS CHARGEABLE TO TAX UNDER ARTICLE 7 OF THE DTAA. THE AO WAS DIRECTED TO DETERMINE THE AMOUNT OF INCOME I N TERMS OF ARTICLE 7. AS THE FACTS FOR THE INSTANT YEAR ARE ADMITTEDL Y SIMILAR TO THOSE OF THE PRECEDING YEARS ON THIS ISSUE, RESPECTFULLY FOL LOWING THE PRECEDENT FOR A.Y. 2006-07, WE SET ASIDE THE IMPUGNED ORDER A ND SEND THE MATTER BACK TO THE FILE OF AO FOR DETERMINING INCOME IN CO NSONANCE WITH THE DIRECTIONS GIVEN FOR THE EARLIER YEAR. 9. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERRE D TO ORDER THESE ISSUES ARE SET ASIDE AND REMITTED BACK TO THE FILE OF THE AO FOR DETERMINING THE INCOME INCONSONANCE WITH THE DIRECT ION GIVEN FOR THE EARLIER YEARS IN THE SAID ORDER DATED 04.07.2014. S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 8 10. GROUND NO. 7 IS CORRELATED WITH GROUND NO. 1,2 AND 3, SO, IT DOES NOT REQUIRE ANY SEPARATE ADJUDICATION SINCE THE ISSUE H AS ALREADY BEEN ADJUDICATED IN THE FORMER PART OF THIS ORDER WHILE DECIDING THE GR OUND NO. 1,2 AND 3. 11. GROUND NO. 8 WAS NOT PRESSED SO IT IS DIS MISSED AS NOT PRESSED. 12. GROUND NO. 9 RELATES TO THE CHARGING OF INTEREST U/S 234A, 234B, 234C AND 234D. AS REGARDS TO THIS ISSUE, THE LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT A SIMILAR ISSUE WAS INVOLVED IN THE EARLIER YEAR VIDE GROUND NO. 8 IN ITA NO. 6573/DEL/2014 FOR THE ASSESSMENT YEAR 2010-11 WHICH HAS BEEN DECIDED VIDE ORDER DATED 08.04.2015. THEREFORE, THE SAME COURSE MAY BE ADOPTED FOR THIS YEAR ALSO. THE LD. DR COULD NOT CONTROVERT THE AFORESAID CONTE NTION OF THE LD. COUNSEL FOR THE ASSESSEE. 13. AFTER CONSIDERING THE SUBMISSIONS OF BOTH T HE PARTIES AND THE MATERIAL ON RECORD, IT IS NOTICED THAT AN IDENTICAL ISSUE WAS SUBJECT MATTER OF THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2010-11 IN ITA NO. 6 573/DEL/2014 WHEREIN RELEVANT FINDINGS HAS BEEN GIVEN VIDE PARA 10 TO 13 OF THE O RDER DATED 08/04/2015 IN ITA NO. 6573/DEL/2014 WHICH READ AS UNDER : 10. THE LAST ISSUE VIDE GROUND NO. 8 RELATES TO TH E CHARGING OF INTEREST U/S 234A, 234B, 234C & 234D. THE LD. COUNS EL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE RELATING TO C HARGING OF INTEREST U/S 234B IS DECIDED IN FAVOUR OF THE ASSES SEE VIDE ORDER DATED 04.07.2014 IN ITA NO. 80/DEL/2013 FOR T HE ASSESSMENT YEAR 2008-09. 11. IN HER RIVAL SUBMISSIONS THE LD. CIT DR SUPPORT ED THE ORDER OF THE AO AND SUBMITTED THAT THE CHARGING OF INTERE ST U/S 234A, 234B, 234C AND 234D OF THE ACT IS MANDATORY. S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 9 12. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE P ARTIES, IT IS NOTICED THAT THE ISSUE RELATING TO CHARGING OF INTE REST U/S 234B OF THE ACT HAS ALREADY BEEN DECIDED IN ASSESSE ES FAVOUR IN THE EARLIER YEARS AND THE RELEVANT FINDIN GS HAVE BEEN GIVEN IN PARA 6 OF THE ORDER DATED 04.07.2014 IN ITA NO. 80/DEL/2013 (SUPRA) WHICH READ AS UNDER:- 6. THE LAST GROUND OF THE ASSESSEES APPEAL AGAINS T THE CHARGING OF INTEREST U/S 234B IS ALSO DECIDED IN ASSESSEES FAV OUR BY FOLLOWING THE VIEW TAKEN IN THE ORDER FOR AY 2006-07. RELEVANT D ISCUSSION HAS BEEN MADE IN PARA 20.2 OF THE ORDER BY WHICH IT WAS HELD THAT THE LIABILITY OF INTEREST U/S 234B DID NOT ARISE AS THE ASSESSEE HAD INCLUDED THE AMOUNT OF ROYALTY AND FEES FOR TECHNICAL SERVICES I N ITS TOTAL INCOME. 13. SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERR ED TO ORDER THE ISSUE RELATING TO CHARGING OF INTEREST U/S 234B IS DECIDED IN FAVOUR OF THE ASSESSEE, FOR THE REMAININ G ISSUES RELATING TO THE CHARGING OF INTEREST U/S 234A, 234C & 234D OF THE ACT, WE HOLD THAT IT IS CONSEQUENTIAL IN NAT URE. 14. SO RESPECTFULLY FOLLOWING THE AFORESAID REFE RRED TO ORDER, THE ISSUE RELATED TO CHARGING OF INTEREST U/S 234B IS DECIDED IN FAVOUR OF THE ASSESSEE AND FOR THE REMAINING ISSUE RELATING TO CHARGING OF INTEREST U/ S 234A, 234C AND 234D OF THE ACT, WE HOLD THAT IT IS CONSEQUENTIAL IN NATURE. 15. GROUND NO. 10 IS RAISED PRE- MATURELY, SO I T DOES NOT REQUIRE ANY ADJUDICATION ON OUR PART. 16. SINCE, WE HAVE ADJUDICATED THE APPEAL OF THE ASSESSEE IN THE FORMER PART OF THIS ORDER, THEREFORE, THE STAY APPLICATION IN SA N O. 79.DEL.2016 BECOMES INFRUCTUOUS, WE ORDER ACCORDINGLY. S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 10 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES AND STAY APPLICATION IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH APRIL, 2016. SD/- SD/- ( BEENA A. PILLAI) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 08/04/2016 *BINITA* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY ASSTT. REGISTRAR ITAT, NEW DELHI S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 11 SL. NO. DESCRIPTION DATE 1. DATE OF DICTATION BY THE AUTHOR 01.04.2016 2. DRAFT PLACED BEFORE THE DICTATING MEMBER 01.04.2016 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY THE SECOND MEMBER 5. DATE OF APPROVED ORDER COMES TO THE SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER 7. DATE OF FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER S.A. NO.79/DEL/2016 (IN ITA NO. 738/DEL/2016) 12