Deputy Commissioner of Income Tax, International Taxation, Circle-1(2), Bangalore V. M/s. IBM Singapore Pte Limited , Bangalore

MA 360/BANG/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8679 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 15-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER M.P. NOS. 360 TO 362/BANG/2018 (IN IT(IT)A NOS. 2038 TO 2040 /BANG/2017 ) ASSESSMENT YEAR S : 20 0 6 - 07 TO 2008 - 09 THE DEPUTY COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION), CIRCLE 1 (2), BANGALORE. VS. M/S. IBM SINGAPORE PTE LIMITED, C/O IBM INDIA PVT. LTD., NO. 12, SUBRAMANYA ARCADE, BANNERGHATTA MAIN ROAD, BANGALORE 560 029. PAN: AACCI2917B APPELLANT RESPONDENT APPELLANT BY : DR. P.V. PRADEEP KUMAR, ADDL. CIT (DR) RESPONDENT BY : SHRI SHARATH RAO, CA DATE OF HEARING : 21 .1 2 .2018 DATE OF PRONOUNCEMENT : 21 .1 2 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER ALL THESE THREE M.PS. ARE FILED BY THE REVENUE CONT ENDING THAT AS PER THE IMPUGNED TRIBUNAL ORDER, THE ISSUE IN DISPUTE SHOUL D HAVE BEEN DECIDED AGAINST THE ASSESSEE BY FOLLOWING THE TRIBUNAL ORDER IN AN ASSESSEES OWN CASE FOR A. Y. 2011 12 IN ITA NO. 162/BANG/2016 DATED 04.04.2017 IN WHICH, THE ISSUE WAS DECIDED AGAINST THE ASSESSEE BY FOLLOWING THE JUDGM ENT OF HONBLE KARNATAKA HIGH COURT RENDERED IN THE CASE OF M/S SAMSUNG ELEC TRONICS CO. LIMITED BUT THE TRIBUNAL HAS REMITTED THE MATTER BACK AND HENCE, TH IS IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER AND IT SHOULD BE RECTIFIED. 2. IN COURSE OF HEARING, IT WAS POINTED OUT BY THE LEARNED AR OF THE ASSESSEE THAT SIMILAR M. PS. WERE FILED BY THE ASSESSEE AND THE SAME ARE ALREADY HEARD ON 07.12.2018 IN M. P. NO. 349 TO 351/BANG/2018 AND TH E ORDER IS AWAITED. HE SUBMITTED THAT THE PRESENT M. PS. OF THE REVENUE MA Y BE DECIDED ON SIMILAR LINE. LEARNED DR OF THE REVENUE ALSO AGREED TO THIS. M.P. NOS. 360 TO 362/BANG/2018 (IN IT(IT)A NOS. 2038 TO 2040/BANG/2017) PAGE 2 OF 3 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THESE THREE M. PS. FILED BY THE ASSESSEE ARE ALREADY DECIDED AND T HE ORDER IS PRONOUNCED ON 19.12.2018 AND AS PER THE SAME, PARA 4 TO 7 OF THE EARLIER TRIBUNAL ORDER WERE SUBSTITUTED BY THE FOLLOWING PARAS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIR ST OF ALL, WE REJECT GROUND NO. 2 IN EACH YEAR AS NOT PRESSED. REGARDIN G GROUND NO. 3 IN EACH YEAR, WE FIND THAT THIS ISSUE IS COVERED AGAINST TH E ASSESSEE BY THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 20 11-12 AND HENCE,PARA NOS. 5 TO 7 OF THIS TRIBUNAL ORDER ARE REPRODUCED H EREINBELOW FOR THE SAKE OF READY REFERENCE. 5. FEELING AGGRIEVED BY THE ORDER OF THE AO, THE A SSESSEE FILED PROCEEDINGS BEFORE THE DRP AND THE DRP VIDE O RDER DATED 28/12/1015 HAS CONFIRMED THE ORDER PASSED BY THE AO. IN THIS REGARD THE LEARNED AR HAS SUBMITTED THA T THE ISSUE UNDER CONSIDERATION IS ALREADY ADJUDICATED BY THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS. SAMSUNG ELECTRONICS CO. LTD., IN ITA NO.2808/2005 AGAINST THE ASSESSEE. HOWEVER, THE CASE IS PENDING WITH THE HON'BLE SUPREME COURT FOR DECISION. 6. ON THE OTHER HAND, THE LEARNED DR HAS SUBMITTED THAT THERE IS NO STAY GRANTED BY THE HON'BLE SUPREME COU RT IN THIS CASE AND, THEREFORE, THE ISSUE OF THE ASSESSEE SHOULD BE ADJUDICATED ON THE BASIS OF THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE PRESENT CASE. 7. WE HAVE GONE THROUGH THE ORDER PASSED BY THE JURISDICTIONAL HIGH COURT AND IN OUR VIEW, THE ISSU E IS SQUARELY COVERED BY THE JUDGMENT PASSED BY THE HON' BLE JURISDICTIONAL HIGH COURT. IN VIEW THEREOF, WE DISM ISS THIS GROUND NOS.2 TO 4.3 OF THE ASSESSEE. 5. FROM THE ABOVE PARAS REPRODUCED FROM THE TRIBUNA L ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2011-12, IT COMES OUT THAT THE TRIBUNAL HAS HELD THAT THE IMPUGNED RECEIP T IS ROYALTY BY FOLLOWING THE JUDGEMENT OF HONBLE JURISDICTIONAL H IGH COURT RENDERED IN THE CASE OF CIT VS. SAMSUNG ELECTRONICS CO. LTD. (SUPRA). HENCE, RESPECTFULLY FOLLOWING THE EARLIER TRIBUNAL ORDER AND IN TURN RESPECTFULLY FOLLOWING THIS JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF C IT VS. SAMSUNG M.P. NOS. 360 TO 362/BANG/2018 (IN IT(IT)A NOS. 2038 TO 2040/BANG/2017) PAGE 3 OF 3 ELECTRONICS CO. LTD. (SUPRA), WE DECIDE THIS ISSUE AGAINST THE ASSESSEE AND ACCORDINGLY GROUND NO. 3 OF THE ASSESS EES APPEAL IS ALSO REJECTED IN EACH OF THREE YEARS. 6. GROUND NO. 4 IS REGARDING THE INITIATION OF PEN ALTY PROCEEDINGS U/S. 271(1) (C) OF IT ACT. THIS GROUND IS PREMATUR E AND HENCE REJECTED ACCORDINGLY IN EACH YEAR. 7. IN THE RESULT, ALL THE THREE APPEALS FILED BY T HE ASSESSEE ARE DISMISSED. 4. AS PER THE ABOVE SUBSTITUTED PARAS, THE ISSUE IN DISPUTE STANDS DECIDED AGAINST THE ASSESSEE AND HENCE, THESE M. PS. OF THE REVENUE HAS BECOME INFRUCTUOS AND THERE ARE DISMISSED. 5. IN THE RESULT, ALL THE THREE M.PS. FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 21 ST DECEMBER, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.