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Income Tax Appellate Tribunal, PUNE BENCH “C”, PUNE
Before: SHRI R.S. SYAL & SHRI S.S. VISWANETHRA RAVI
Assessee by Shri Ketan Ved Revenue by Smt. Amrita Misra Date of hearing 02-02-2021 Date of pronouncement 05-02-2021 आदेश / ORDER PER R.S.SYAL, VP : This appeal by the assessee, transferred from Kolkata to Pune under due process, is directed against the order dated 28- 03-2018 passed by the Commissioner of Income-tax u/s.263 of the Income-tax Act, 1961 (hereinafter also called ‘the Act’) in relation to the assessment year 2012-13.
This appeal is time barred by 16 days. The assessee has filed an affidavit giving the reasons for the delay. Such reasons have been perused and found to be satisfactory. The delay is condoned and the appeal is admitted for hearing.
We have heard both the sides and gone through the relevant material on record. The ld. CIT held the assessment order passed u/s 143 of the Act on 29-02-2016 as erroneous and prejudicial to the interest of revenue inasmuch as the Headquarter Service Fees received by the assessee was claimed and accepted as not chargeable to tax. The ld. CIT opined that the amount ought to have been considered as “Royalty/Fees for included services” u/s.9(1)(vi)/9(1)(vii) read with Article 12 of the Double Tax Avoidance Agreement (DTAA) between India and USA and hence taxable. In reaching this conclusion, he also took into consideration the assessment order passed u/s 143(3) for the assessment year 2014-15 in which the amount of Head quarter service fee was held to be chargeable to tax.
Here it is pertinent to note that the ld. CIT took similar view in his order u/s 263 for the A.Y. 2011-12. Such order for the immediately preceding year came up for consideration before the Tribunal along with the instant appeal. We have passed a separate order in for such preceding year and allowed the assessee’s appeal by setting aside the revision order. While so holding, the Tribunal took note of the fact that the AO examined the issue; applied his mind to it; and then took a possible view of accepting the assessee’s claim, which was based on his own order passed u/s.143(3) for the assessment year 2010-11. Insofar as the assessment year under consideration is concerned, the AO had the assessment orders for the immediately preceding two assessment years, namely, 2010-11 and 2011-12, in both of which the assessee’s claim about non chargeability of the amount of Headquarter Service Fees was accepted.
It is worth mentioning that the ld. CIT also took support of the assessment order for the assessment year 2014-15 in canvassing a view that the amount should have been charged to tax for the year under consideration. The assessment order for the A.Y. 2014-15 was passed on 06-02-2017 much after the passing of the assessment order by the AO for the year under consideration.
Both the sides are agreeable that the facts and circumstances of the present appeal are mutatis mutandis similar to those of immediately preceding assessment years.
Adopting the reasoning in our order for the assessment year 2011-12, we set-aside the impugned order and hold that the ld. CIT was not justified in branding the assessment order erroneous as well as prejudicial to the interest of the Revenue.
In the result, the appeal is allowed.
Order pronounced in the Open Court on 05th February, 2021.
Sd/- Sd/- (S.S. VISWANETHRA RAVI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; �दनांक Dated : 05th February, 2021 सतीश आदेश क� क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to: अ�ेिषत आदेश आदेश आदेश अपीलाथ� / The Appellant; 1. ��यथ� / The Respondent; 2.
3. The CIT(IT&TP), Kolkata 4. The Pr.CIT (IT&TP), New Delhi िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे 5. “सी” / DR ‘C’, ITAT, Pune गाड� फाईल / Guard file 6. आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
Date 1. Draft dictated on 02-02-2021 Sr.PS 2. Draft placed before author 04-02-2021 Sr.PS 3. Draft proposed & placed JM before the second member 4. Draft discussed/approved JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *