Cummins Inc, Pune V. Dy. Director of IT ( International Taxation)-1, Pune

MA 28/PUN/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 6040 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 07-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Assessee Lawyers: R R VORA
• Keywords: Double taxation relief
• Section: 6; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / MA NO S. 28 & 29 /P U N/201 7 (ARISING OUT OF ITA NOS. 73 & 74/PUN/2011 ) / ASSESSMENT YEAR S : 20 0 4 - 05 & 2006 - 07 CUMMINS INC., C/O CUMMINS INDIA LIMITED, KOTHRUD, PUNE - 38 PAN : AA BCC6225D APPLICANT / V/S. D Y. DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION I, PUNE RESPONDENT ASSESSEE BY : S HRI R.R. VORA REVENUE BY : SHRI MUKESH JHA / DATE OF HEARING : 1 5 - 09 - 2017 / DATE OF PRONOUNCEMENT : 06 - 1 2 - 2017 / ORDER PER VIKAS AWASTHY, JM : TH ESE MISCELLANEOUS APPLICATION S U/S. 254(2) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) HAVE BEEN FILED BY THE ASSESSEE SEEKING RECTIFICATION OF THE MISTAKE IN THE ORDER OF TRIBUNAL DATED 08 - 08 - 2013 VIDE WHICH APPEALS OF THE ASSESSEE IN ITA NOS. 73 & 2 MA NO S. 28 & 29/PUN/2017, A.YS. 2004 - 05 & 2006 - 07 74/PUN/2011 FOR THE ASSESSMENT YEARS 2004 - 05 AND 2006 - 0 7 , RESPECTIVELY HAVE BEEN DECIDED . 2. SHRI R.R. VORA APPEARING ON BEHALF OF THE ASSESSEE /APPLICANT SUBMITTED THAT THE ASSESSEE IN GROUND NO. 2 OF THE APPEALS HAD ASSAILED THE TAXABILITY OF CONSIDERATION RECEIVED FOR FACILITATING GRANT OF USER RIGHTS IN OFF - THE - SHELF SOFTWARE FROM CUMMINS INDIA LTD. AND CUMMINS DIESEL SALES & SERVICES (INDIA) LTD. AND PROVISION OF RELATED SUPPORT SERVICES. THE TRIBUNAL WHILE ADJUDICATING THIS GROUND OF APPEAL DECIDED THE ISSUE FOLLOWING THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX & ORS. VS. SAMSUNG ELECTRONICS CO. LTD. & ANR. REPORTED AS 3 45 ITR 494 WHICH WAS IN FAVOUR OF THE REVENUE. THE ASSESSEE DURING THE COURSE OF SUBMISSION S HAD PLACED RELIANCE ON VARIOUS DECISIONS INCLUDING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. REPORTED AS 246 CTR 422 AND THE DECISION OF CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ALLIANZ SE (F ORMERLY KNOWN AS ALLIANZ AG) VS. ASSTT. DIRECTOR OF INCOME TAX IN ITA NO. 1569/PN/2008 FOR ASSESSMENT YEAR 2005 - 06 DECIDED ON 14 - 03 - 2012 , WHEREIN SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. THE LD. AR SUBMITTED THAT THE TRIBUNAL HAS MISREAD THE D ECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. (SUPRA) TO HOLD THAT THE SAME IS DISTINGUISHABLE ON FACTS. THE TRIBUNAL FURTHER ERRED IN NOT CONSIDERING THE DECISION OF CO - ORDINATE BENCH IN THE CASE OF ALLIANZ S E VS. ASSTT. DIRECTOR OF INCOME TAX (SUPRA). THE TRIBUNAL WHILE DECIDING THE ISSUE AGAINST THE ASSESSEE OVERLOOKED THE 3 MA NO S. 28 & 29/PUN/2017, A.YS. 2004 - 05 & 2006 - 07 WELL SETTLED LAW THAT IN CASE OF CONFLICTING VIEWS, THE VIEW FAVOURABLE TO THE ASSESSEE MUST BE ADOPTED. 2.1 THE LD. AR SUBMITTED THA T SIMILAR ISSUE HAD COME UP BEFORE THE MUMBAI BENCH OF TRIBUNAL IN BUNCH OF APPEALS BY RELIANCE COMMUNICATIONS LIMITED. THE MUMBAI BENCH OF THE TRIBUNAL VIDE ORDER DATED 06 - 09 - 2013 DISMISSED THE BATCH OF 127 APPEALS FILED BY THE RELIANCE COMMUNICATION LIMITED AND OTHERS . THE ASSESSEE COMPANY FILED MISCELLANEOUS APPLICATION S ON THE GROUND THAT THE TRIBUNAL WHILE ADJUDICATING BATCH OF APPEALS HAS FAILED TO CONSIDER THE DECISION OF CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF DEPUTY DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) VS. SOLID WORKS CORPORATION REPORTED AS 51 SOT 34 AND THE SAME HAS RESULTED IN MISTAKE APPARENT ON RECORD. THE TRIBUNAL ACCEPTED THE MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE AND RECALLED THE ORDER. THEREAFTER, THE DE PARTMENT CHALLENGED THE ORDER OF TRIBUNAL IN WRIT PETITION BEFORE THE HONBLE BOMBAY HIGH COURT. THE HONBLE BOMBAY HIGH COURT VIDE ORDER DATED 08 - 08 - 2017 DISMISSED THE WRIT PETITION FILED BY THE DEPARTMENT AND APPROVED THE DECISION OF TRIBUNAL IN RECALLI NG ITS EARLIER ORDER IN PROCEEDING U/S. 254(2) OF THE ACT . THE LD. AR SUBMITTED THAT IN THE PRESENT SET OF APPEALS IDENTICAL ERROR HAS BEEN COMMITTED BY THE TRIBUNAL IN NOT CONSIDERING THE DECISION OF CO - ORDINATE BENCH AND MISREADING THE DECISION OF HONB LE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. (SUPRA) , T HE ORDER OF TRIBUNAL IN ITA NOS. 73 & 74/PUN/2011 MAY BE RECALLED AND THE MATTER MAY BE FIXED FOR FRESH HEARING. 4 MA NO S. 28 & 29/PUN/2017, A.YS. 2004 - 05 & 2006 - 07 3. ON THE OTHER HAND SHRI MUKESH JHA REPRESENTING T HE DEPARTMENT VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE. THE LD. DR SUBMITTED THAT FACTS IN THE CASE OF ASSESSEE ARE DISTINGUISHABLE FROM THE FACTS IN THE CASE OF ALLIANZ SE VS. ASSTT. DIRECTOR OF INCOME TAX (SUPRA). THE LD. DR CONTENDED THAT IN THE CASE OF ALLIANZ SE VS. ASSTT. DIRECTOR OF INCOME TAX (SUPRA) AGREEMENT WAS WITH GERMANY , WHEREAS , IN THE PRESENT CASE THE AGREEMENT OF ASSESSEE IS WITH US. THE LD. DR FURTHER ELABORAT ING THE DISTINCT FEATURES BETWEEN THE TWO CASE S SUBMITTED THAT IN THE CASE OF ALLIANZ SE VS. ASSTT. DIRECTOR OF INCOME TAX (SUPRA) , THE ASSESSEE IS ENGAGED IN INSURANCE BUSINESS , WHEREAS , IN THE INSTANT CASE THE ASSESSEE IS ENGAGED IN MANUFACTURING OF ENGINEERING PRODUCTS. THEREFORE, BOTH THE COMPANI ES ARE FUNCTIONALLY DIFFERENT. THE TRIBUNAL WHILE ADJUDICATING THE ISSUE RAISED IN GROUND NO. 2 OF THE APPEAL BY ASSESSEE HAS CONSIDERED THE DECISION RENDERED IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. (SUPRA) AND HAS DISTINGUISHED THE SAME O N FACTS. IT IS NOT A CASE WHERE THE TRIBUNAL HAS NOT CONSIDERED THE DECISION RENDERED IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. (SUPRA). 4. CONTROVERTING THE SUBMISSIONS MADE BY DR, THE LD. AR OF ASSESSEE SUBMITTED THAT TREATY BETWEEN US AND GERMANY ARE IDENTICAL. THEREFORE, THERE WOULD BE NO MATERIAL DIFFERENCE WHETHER THE AGREEMENT IS WITH THE COMPANY SITUATED AT GERMANY OR US. THE LD. AR FURTHER SUBMITTED THAT IN THE INSTANT CASE THE SOFTWARE HAS BEEN DEVELOPED BY CUMMINS INC. TO BE U SED BY ALL GROUP CONCERNS THROUGHOUT THE W ORLD. IT IS STANDARD SOFTWARE WHICH IS USED BY EVERY GROUP CONCERN OF CUMMINS INC. THE ISSUE IN APPEAL IS PERMITTED USER OF SOFTWARE. 5 MA NO S. 28 & 29/PUN/2017, A.YS. 2004 - 05 & 2006 - 07 IDENTICAL ISSUE WAS RAISED BEFORE TRIBUNAL IN THE CASE OF ALLIANZ SE VS. AS STT. DIRECTOR OF INCOME TAX (SUPRA). THEREFORE, THE RATIO LAID DOWN BY THE TRIBUNAL IN THE CASE OF ALLIANZ SE VS. ASSTT. DIRECTOR OF INCOME TAX (SUPRA) WOULD APPLY IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AS WELL. 5. W E HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES BELOW . WE HAVE ALSO EXAMINED VARIOUS DECISIONS ON WHICH THE LD. AR HAS PLACED RELIANCE . THE ISSUE IN DISPUTE THAT HAS BEEN ADJUDICATED BY THE TRIBUNAL WHICH IS SUBJECT MATTER OF MISCELLANEOUS APPLICATION S IS CONSIDERATION RECEIVED FOR GRANT OF USER RIGHTS IN OFF THE SHELF SOFTWARE FROM CUMMINS INDIA LTD. AND CUMMINS DIESEL SALES & SERVICES (INDIA) LTD., WHOLLY OWNED SUBSIDIAR IES OF THE AS SESSEE. THE ASSESSING OFFICER TREATED THE RECEIPT OF AFORESAID AMOUNT IN THE HANDS OF ASSESSEE AS ROYALTY . WHEREAS, THE STAND OF THE ASSESSEE IS THAT THE AMOUNT IS FEE FOR USER RIGHTS FOR THE COPYRIGHTED SOFTWARE AND NOT THE USE OF COPYRIGHT . THER EFORE, NATURE OF PAYMENT DOES NOT FALL WITHIN THE REALM OF ROYALTY. IT HAS BEEN POINTED THAT THE ISSUE RAISED IN PRESENT SET OF APPEALS HAS BEEN DECIDED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. (SUPRA) AND CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ALLIANZ SE VS. ASSTT. DIRECTOR OF INCOME TAX (SUPRA) WHEREIN THE RATIO LAID DOWN IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. (SUPRA) HAS BEEN FOLLOWED. 6. THE LD. AR OF ASSESSEE HAS POINTED THAT M UMBAI BENCH OF THE TRIBUNAL IN BUNCH OF APPEALS BY RELIANCE COMMUNICATIONS LTD. 6 MA NO S. 28 & 29/PUN/2017, A.YS. 2004 - 05 & 2006 - 07 ADJUDICATED THE ISSUE, W HETHER PAYMENT FOR PURCHASE OF SOFTWARE IS IN THE NATURE OF ROYALTY IN TERMS OF PROVISIONS OF S ECTION 9 OF THE ACT READ WITH RELEVANT DTAA . THE TRIBUNAL DECIDED THE ISSUE AGAINST ASSESSEE BY FO LLOWING THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX & ORS. VS. SAMSUNG ELECTRONICS CO. LTD. & ORS. (SUPRA). THE ASSESSEE THEREIN FILED MISCELLANEOUS APPLICA TION S HIGHLIGHTING THAT THE TRIBUNAL WHILE ADJUDICATING THE ISSUE HAD FAILED TO CONSIDER THE DECISION RENDERED IN THE CASE OF DEPUTY DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) VS. SOLID WORKS CORPORATION (SUPRA) AND HAS ALSO MISREAD THE RATIO LAID DOW N BY HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. (SUPRA). THE MUMBAI BENCH OF THE TRIBUNAL AFTER DISCUSSING CATENA OF JUDGMENTS AND THE FACTS OF THE CASE CONCLUDED THAT, THE TRIBUNAL HAS NOT DEALT WITH THE CASE OF DEPU TY DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) VS. SOLID WORKS CORPORATION (SUPRA) THOUGH THE SAME WAS RELIED UPON BY THE COUNSEL OF THE ASSESSEE AND THIS FACT HAS BEEN RECORDED IN THE ORDER OF TRIBUNAL . THE NON - CONSIDERATION OF DECISION RENDERED BY T HE CO - ORDINATE BENCH ON IDENTICAL ISSUE WOULD RESULT IN A MISTAKE , APPARENT FROM RECORD. IT IS FURTHER HELD THAT THE TRIBUNAL WHILE ADJUDICATING THE ISSUE HAS NOT PROPERLY READ THE DECISION RENDERED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. (SUPRA). THE MUMBAI BENCH OF THE TRIBUNAL AFTER RECORDING ABOVE OBSERVATIONS FINALLY CONCLUDED AS UNDER : 25. ACCORDINGLY, WE HOLD THAT THE IMPUGNED ORDERS PASSED IN RELIANCE GROUP OF CASES SUFFERS FROM MISTAKE APPARENT FR OM RECORD ON ACCOUNT OF NON - CONSIDERATION OF THE DECISION RENDERED BY CO - ORDINATE BENCH ON IDENTICAL ISSUE AND ALSO ON ACCOUNT OF MISREADING OF DECISION RENDERED BY HONBLE DELHI HIGH COURT IN THE CASE OF ERICSON (SUPRA). ACCORDINGLY WE RECALL THE IMPUGNE D ORDERS IN EXERCISE OF POWERS GRANTED U/S. 254(2) OF THE ACT. 7 MA NO S. 28 & 29/PUN/2017, A.YS. 2004 - 05 & 2006 - 07 7. T HE DEPARTMENT FILED WRIT PETITIONS BEFORE THE HONBLE BOMBAY HIGH COURT ASSAILING THE DECISION OF TRIBUNAL PASSED IN MISCELLANEOUS APPLICATION S RECALLING ITS EARLIER ORDER. THE HONBLE HIGH COURT DISMISSING THE WRIT PETITIONS OF REVENUE HELD : 9. IN THE CIRCUMSTANCES, WE DO NOT THINK THAT THE VIEW TAKEN BY THE TRIBUNAL THAT ITS INITIAL ORDER CONTAINED SOME MISTAKES AND WHICH NEED TO BE RECTIFIED REQUIRES OUR INTERFERENCE IN WRIT JURISDICTION. IF WE TAKE THE OBJECTIONS OF THE REVENUE AS THEY ARE, THEY ARE NOT GOING TO THE ROOT OF THE CASE, NAMELY, THE MAINTAINABILITY OF THE PROCEEDINGS, STYLED AS RECTIFICATION APPLICATIONS AND THE ALLEGED LIMITED JURISDICTION OF THE TRIBUNAL. AT NO STAGE IT WAS THE CONTENTION OF THE REVENUE THAT THE TRIBUNAL HAS BECOME FUNCTUS OFFICIO AFTER IT DELIVERED ITS ORDER DATED 6 TH SEPTEMBER,2013. IF IT HAD TO RE - LOOK OR RE - VISIT THAT ORDER IT MUST BE FOR A LIMITE D PURPOSE AND PERMITTED BY SECTION 254 (2) OF THE INCOME TAX ACT, 1961. IT COULD NOT HAVE THEN TOUCHED THE FILES AND THE CASES OR THE ORIGINAL RECORDS SO AS TO ALLOW THE ASSESSEE TO TAKE UP ALL PLEAS ON M ERITS. THE MERITS MAY HAVE BEEN DECIDED ERRONEOUSLY, BUT THE TRIBUNAL HAS THAT JURISDICTION AND WITHIN ITS POWERS IT MAY PASS AN ERRONEOUS ORDER. THE ONLY REMEDY TO QUESTION ITS ORDER IS TO APPEAL TO A HIGHER COURT. THIS IS NOT THE NATURE OF THE OBJECTIONS RAISED BEFORE THE TRIBUNAL. RATHER, A PERUSAL OF TH E SUBMISSIONS AS SUMMARIZED BY THE TRIBUNAL IN THE IMPUGNED ORDER FROM PARAGRAPH 5 ONWARDS WOULD REVEAL THAT THE REVENUE ALSO ENTERED INTO THE MERITS OF THE CASE BY JUSTIFYING AND SUPPORTING THE FINDINGS AND CONCLUSIONS OF THE TRIBUNAL IN THE INITIAL ORDER . THOSE ARE CLEARLY ON THE MERITS OF THE CONTROVERSY. IN SUCH CIRCUMSTANCES WHEN THE PARAMETERS AS THEY ARE AND KNOWN TO ALL, EXTREMELY LIMITED, ALLEGEDLY NOT ADHERED TO IS NOT THE SOLE COMPLAINT. THE COMPLAINT IS THAT THE TRIBUNAL SHOULD NOT HAVE RE - VISIT ED AND RECALLED ITS CONCLUSIONS IN THE INITIAL ORDER ALSO ON MERITS. THUS, THE VIEW TAKEN BY THE TRIBUNAL IS A MIXED ONE. BY PERUSING THE ORDER UNDER CHALLENGE, WE FIND THAT IT COULD BE TERMED AS A PLAUSIBLE VIEW OF THE PROCEEDINGS. IN THE LARGER INTEREST OF JUSTICE THE TRIBUNAL FELT THAT IT MUST ALLOW THE ASSESSEE TO CONTEST THE APPEALS OF THE REVENUE WHICH WERE DECIDED BY THE INITIAL ORDER OF 6 TH SEPTEMBER, 2013, FULLY AND PROPERLY ON MERITS. A FAIR, JUST AND COMPLETE OPPORTUNITY OUGHT TO BE GRANTED AND THE ASSESSEE DESERVES THE SAME. THAT IS THE CONCLUSION OF THE TRIBUNAL IN THE IMPUGNED ORDER. 10. SUCH A CONCLUSION, TO OUR MIND, IS NOT VITIATED BY ANY ERROR OF LAW APPARENT ON THE FACE OF THE RECORD OR PERVERSITY WARRANTING OUR INTERFERENCE IN WRIT JURI SDICTION. 11. WE ARE SURPRISED THAT THE INITIAL ORDER IS PASSED ON 6 TH SEPTEMBER,2013. AGGRIEVED AND DISSATISFIED WITH THAT ORDER, THE ASSESSEE HAD BROUGHT THE APPEALS TO THIS COURT. IN THE MEANWHILE, THEY HAD ALSO FILED APPLICATIONS FOR RECTIFICATION OF THE MISTAKES UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961. THOSE APPLICATIONS WERE PENDING AND WERE DECIDED DURING THE COURSE OF THE APPEALS. THE ASSESSEES 8 MA NO S. 28 & 29/PUN/2017, A.YS. 2004 - 05 & 2006 - 07 HAVING SUCCEEDED THEREIN, WITHDREW THEIR SUBSTANTIVE APPEALS BEFORE THIS COURT. WE HAVE SEEN A GOOD NUMBER OF YEARS, NAMELY FOUR YEARS, GOING BY AND NEITHER SUB - SERVING THE LARGER INTEREST OF THE PUBLIC OR THE REVENUE. THEREAFTER, WE FIND THAT THE REVENUE CHALLENGED THIS ORDER OF 18 TH NOVEMBER, 2016, BY THE PRESENT PETITIONS WHICH HAVE ALSO TAKEN T EN MONTHS TO BE DISPOSED OF. THIS VALUABLE TIME COULD HAVE BEEN UTILISED BY COMMENCING THE HEARING OF THE APPEALS AFRESH BEFORE THE TRIBUNAL AND HAVING THEM DECIDED EXPEDITIOUSLY. 12. IN THE LIGHT OF THE ABOVE, WE DISMISS THESE PETITIONS. WE CLARIFY THAT THE APPEALS OF THE REVENUE WHICH STAND RESTORED TO FILE OF THE TRIBUNAL SHALL BE HEARD AS EXPEDITIOUSLY AS POSSIBLE AND SHOULD BE DISPOSED OF WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF RECEIPT OF A COPY OF THIS ORDER. WE STIPULATE THIS OUTER LIMIT IN THE LIGHT OF THE CONTROVERSY INVOLVED IN THESE APPEALS AND WHICH MAY ARISE IN SUBSEQUENT APPEALS IN THE CASE OF THIS VERY ASSESSEE OR OTHERS IN IDENTICAL BUSINESS. WHILE WE DIRECT THE TRIBUNAL TO DISPOSE OF THE APPEALS WITHIN SIX MONTHS, WE WILL NOT EXTEND THE TIME UNDER ANY CIRCUMSTANCES. WE CLARIFY THAT ALL CONTENTIONS OF ALL THE PARTIES ARE OPEN. THEY SHALL BE OPEN FOR BEING AGITATED, RAISED AND CONSIDERED BY THE TRIBUNAL AFRESH. WHILE DECIDING THE APPEALS PURSUANT TO OUR ORDER AND DIRECTIONS, THE TRIBUNAL SHALL NOT BE INFLUENCED IN ANY MANNER BY ANY FINDING AND CONCLUSIONS IN THE ORDER DATED 6 TH SEPTEMBER, 2013 OR 18 TH NOVEMBER, 2016. WE CLARIFY THAT THIS ORDER DATED 18 TH NOVEMBER, 2016, WAS PASSED CONSIDERING A LIMITED REQUEST AND ALL OTHER CONCLU SIONS IN THAT ORDER SHALL NOT INFLUENCE THE OUTCOME OF THESE APPEALS . 8. T HE FACTS IN THE PRESENT CASE ARE SIMILAR . THE ASSESSEE IS SEEKING RECALLING OF THE ORDER OF TRIBUNAL FOR THE SAME REASONS AS WAS IN THE CASE OF RELIANCE COMMUNICATIONS LIMITED BE FORE THE MUMBAI BENCH OF THE TRIBUNAL . IN THE PRESENT CASE , WE FIND THAT THE TRIBUNAL HAS FAILED TO CONSIDER THE DECISION OF CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF ALLIANZ SE VS. ASSTT. DIRECTOR OF INCOME TAX (SUPRA) AND HAS PRIMA FACIE MISREAD THE DECISION RENDERED BY HONBLE DELHI HIGH COURT IN THE CASE OF DIRECTOR OF INCOME TAX VS. ERICSSON A.B. (SUPRA). THIS IS A MISTAKE APPARENT FROM RECORD , WHICH NEEDS TO BE RECTIFIED. ACCORDINGLY, THE ORDER OF TRIBUNAL DATED 08 - 08 - 2013 IN ITA NOS. 73 & 7 4/PUN/2011 IS RECALLED. 9 MA NO S. 28 & 29/PUN/2017, A.YS. 2004 - 05 & 2006 - 07 9. THE OFFICE REGISTRY IS DIRECTED TO LIST THE APPEALS FOR HEARING IN DUE COURSE AFTER ISSUING NOTICE OF HEARING TO BOTH THE SIDES. 10. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FILED BY ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 06 TH DAY OF DECEMBER, 2017 . SD/ - SD/ - ( / ANIL CHATURVEDI ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 06 TH DECEMBER, 2017 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT . 2. / THE RESPONDENT . 3. DISPUTE RESOLUTION PANEL, PUNE 4. DEPUTY DIRECTOR OF INCOME TAX (IT) - I, PUNE 5 . , , , / DR, ITAT, A BENCH, PUNE . 6 . / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE