M/s. Cummins Inc., Pune V. Assistant Director of Income-tax, (IT-1), Pune

MA 47/PUN/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8758 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-08-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 10-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS DEEPA HAIRY
• Section: 201; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM M A NO. 4 6 /P U N/201 9 ARISING OUT OF ITA NO. 1 663 /P U N/201 1 ASSESSMENT YEAR : 20 0 7 - 0 8 CUMMINS INC, C/O CUMMINS INDIA LIMITED, KOTHRUD, PUNE 38 . APPLICANT PAN: AABCC6225D VS. THE DY. DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION - I), PUNE . RESPO NDENT MA NO.47/PUN/2019 ARISING OUT OF ITA NO. 2181/PUN/2013 ASSESSMENT YEAR : 2005 - 06 CUMMINS INC 5 TH FLOOR, C/O CUMMINS INDIA OFFICE CAMPUS, SURVEY NO.21, BALEWADI, PUNE 411045 . APPLICANT PAN: AABCC6225D VS. THE ASST. DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION - I, PUNE . RESPONDENT . / ITA NO. 1663 /P U N/201 1 / ASSESSMENT YEAR : 2007 - 08 CUMMINS INC, C/O CUMMINS INDIA LIMITED, KOTHRUD, PUNE 38 . APPLICANT PAN: AABCC6225D 2 M A NO S . 46 & 47 /P U N/201 9 ITA NO.1663/PUN/2011 ITA NO.2181/PUN/2013 VS. THE DY. DIRECT OR OF INCOME TAX (INTERNATIONAL TAXATION - I), PUNE . RESPONDENT . / ITA NO. 2181 /P U N/201 3 / ASSESSMENT YEAR : 200 5 - 0 6 CUMMINS INC 5 TH FLOOR, C/O CUMMINS INDIA OFFICE CAMPUS, SURVEY NO.21, BALEWADI, PUNE 411045 . APPLICANT PAN: AABCC6225D VS. THE ASST. DIRECTOR OF INCOME TAX, INTERNATIONAL TAXATION - I, PUNE . RESPONDENT ASSESSEE BY : SHRI RAJENDRA AGIWAL REVENUE BY : MRS. DEEPA HAIRY / DATE OF HEARING : 0 6 . 0 9 .201 9 / DATE OF PRONOUNCEMENT: 1 1 . 0 9 .201 9 / ORDER PER SUSHMA CHOWLA, JM : THE PRESENT MISCELLANEOUS APPLICATION S HA VE BEEN FILED BY THE APPLICANT RELATING TO ASSESSMENT YEAR 2007 - 08, ORDER DATED 20.02.2015 AND ASSESSMENT YEAR 2005 - 06, ORDER DATE D 29.07.2016 . 2. THE APPLICANT HAS FILED THE PRESENT MISCELLANEOUS APPLICATIONS BEFORE US ON THE GROUND THAT THE APPEALS OF APPLICANT WERE DECIDED RELYING ON EARLIER ORDER OF 3 M A NO S . 46 & 47 /P U N/201 9 ITA NO.1663/PUN/2011 ITA NO.2181/PUN/2013 TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004 - 05 IN ITA NOS.73/PN/201 1 AND FOR ASSESSMENT YEAR 2006 - 07 IN ITA NO.74/PUN/2011, VIDE CONSOLIDATED ORDER DATED 08.08.2013. THE APPLICANT IN LINE WITH THE DECISION OF TRIBUNAL AND THE ISSUE BEING IDENTICAL HAD FILED AN APPLICATION UNDER SECTION 158A OF THE ACT, SINCE IDENTICAL IS SUE WAS PENDING BEFORE THE HONBLE HIGH COURT FOR ASSESSMENT YEARS 2004 - 05 AND 2006 - 07. THE TRIBUNAL IN LINE WITH THE APPLICATION UNDER SECTION 158A OF THE ACT, WITHOUT DISCUSSING THE ISSUE ON MERITS AND FOLLOWING ITS EARLIER DECISION HAD DISMISSED THE AP PEALS OF APPLICANT. THE APPLICANT NOW POINTS OUT THAT FOR EARLIER YEARS I.E. ASSESSMENT YEARS 2004 - 05 AND 2006 - 07, THE APPLICANT HAS FILED MISCELLANEOUS APPLICATIONS BEFORE THE TRIBUNAL AND THOSE MISCELLANEOUS APPLICATIONS HAVE BEEN DECIDED VIDE ORDER DAT ED 06.12.2017 AND THE APPEALS WERE RECALLED FOR FRESH ADJUDICATION. THE APPLICANT THUS, HAS PLEADED THAT THE MISCELLANEOUS APPLICATIONS FILED FOR ASSESSMENT YEAR S 2007 - 08 AND 2005 - 06 ALSO BE ALLOWED IN LINE THEREOF. 3. THE LEARNED AUTHORIZED REPRESENTATI VE FOR THE APPLICANT BEFORE US HAS FILED THE ORDER IN MISCELLANEOUS APPLICATIONS NOS.28 & 29/2017, RELATING TO ASSESSMENT YEARS 2004 - 05 AND 2006 - 07, ORDER DATED 06.12.2017, UNDER WHICH EARLIER ORDER OF TRIBUNAL WAS RECALLED. HE FURTHER SUBMITTED THAT WHIL E DECIDING THE PRESENT APPEALS, THE TRIBUNAL HAD NOT DECIDED THE ISSUE ON MERITS BUT HAD FOLLOWED ITS EARLIER DECISION AND ALSO BECAUSE THE APPLICANT HAD FILED THE APPLICATION UNDER SECTION 158A OF THE ACT, HENCE THE MISCELLANEOUS APPLICATIONS BE ALLOWED. IT IS FURTHER POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE APPLICANT THAT THE ISSUE ON MERITS HAS ALSO BEEN DECIDED BY THE TRIBUNAL IN ITA NOS.73 & 74/PN/2011, RELATING TO ASSESSMENT YEARS 2004 - 05 AND 2006 - 07, VIDE ORDER DATED 05.07.2019. IN THIS REGARD, HE POINTED OUT THAT THE ISSUE WAS DECIDED BY THE 4 M A NO S . 46 & 47 /P U N/201 9 ITA NO.1663/PUN/2011 ITA NO.2181/PUN/2013 TRIBUNAL IN JOHN DEERE INDIA PVT. LTD. (2019) 70 ITR (TRIB) 73 (PUNE) AND ALSO SYMANTEC CORPORATION VS. DCIT IN ITA NO.387/PUN/2017 RELATING TO ASSESSMENT YEAR 2013 - 14, ORDER DATED 05.04.201 9 AND FOLLOWING THE SAME, THE TRIBUNAL HELD THAT THE ASSESSEE RECIPIENT OF THE RECEIPTS ON SALE OF COPYRIGHTED ARTICLE IS NOT IN THE NATURE OF ROYALTY AND HENCE, NOT TAXABLE IN INDIA. HE ALSO FILED COPY OF ORDER OF TRIBUNAL. 4. THE LEARNED DEPARTMENTAL R EPRESENTATIVE FOR THE REVENUE FAIRLY AGREED THAT THE MISCELLANEOUS APPLICATIONS HAVE BEEN ALLOWED FOR EARLIER YEARS AND THE ISSUE HAS BEEN DECIDED IN FAVOUR OF APPLICANT. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. IN THE FIRST INSTANC E, THE MISCELLANEOUS APPLICATIONS WHICH ARE FILED BY APPLICANT ARE AGAINST SEPARATE ORDERS OF TRIBUNAL AND UNDER BOTH THE ORDERS, THE TRIBUNAL HAD DECIDED THE ISSUE ON ACCOUNT OF ASSESSEE FILING THE APPLICATION UNDER SECTION 158A OF THE ACT , WITHOUT DECIDI NG THE ISSUE ON MERITS AND FOLLOWING ITS DECISION IN EARLIER YEARS I.E. ASSESSMENT YEARS 2004 - 05 AND 2007 - 08, ON THE GROUND THAT THE APPEALS OF APPLICANT WERE ADMITTED BY THE HONBLE HIGH COURT. HOWEVER, ON A LATER DATE, VIDE ORDER DATED 06.12.2017 IN MIS CELLANEOUS APPLICATION THE TRIBUNAL HAD RECALLED ITS EARLIER ORDER AND APPEALS WERE LISTED FOR HEARING. IN SUCH SCENARIO, WHERE THE APPEALS FOR THE INSTANT ASSESSMENT YEARS WERE DECIDED ON THE BASIS OF APPEALS DECIDED FOR ASSESSMENT YEARS 2004 - 05 AND 2006 - 07 AND WHERE THE ORDERS STAND RECALLED BY THE TRIBUNAL, WE FIND MERIT IN THE MISCELLANEOUS APPLICATIONS MOVED BY THE APPLICANT AND WE RECALL OUR ORDER IN THE SAID APPEALS. HENCE, THE MISCELLANEOUS APPLICATIONS ARE ALLOWED. HOWEVER, SINCE THE ISSUES HAVE ALREADY BEEN ATTAINED FINALITY AND HAVE BEEN DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 5 M A NO S . 46 & 47 /P U N/201 9 ITA NO.1663/PUN/2011 ITA NO.2181/PUN/2013 05.07.2019. HOWEVER, FOR THE SAKE OF BREVITY, WE ARE NOT REPRODUCING THE SAME BUT FOLLOWING THE SAME, WE HOLD THAT THE RECEIPTS FROM FACILITATING GRANT OF USER CHARGES IN SOFTWARE TO INDIAN ENTITIES IS NOT ROYALTY AND HENCE, NOT TAXABLE IN THE HANDS OF APPLICANT. THIS IS THE ONLY ISSUE RAISED IN THE PRESENT APPEALS AND HENCE, BOTH THE APPEALS OF APPLICANT STANDS ALLOWED. 6 . IN THE RESULT, BOTH MISCELLANEOUS APPLICATION S AND APPEALS OF APPLICANT ARE ALLOWED. ORDER PRONOUNCED ON THIS 11 TH DAY OF SEPTEMBER , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 11 TH S EPTEMBER , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - IT/TP, PUNE ; 4. THE DIT (TP/IT), PUNE ; 5. THE DR B , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / I TAT, PUNE