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O R D E R Per S.S. Godara, J.M. : These Revenue’s and assessee's cross appeals for Assessment Year 2009-10 arise against the Commissioner of Income Tax (Appeals)-5, Hyderabd’s order dt.30.09.2016 passed in the case No.0391/2014- 15/CIT(A)-5 involving proceedings u/s. 143(3) r.w.s. 144C of the Income Tax Act, 1961 ('the Act').
Heard both parties. Case files perused.
We come to the Revenue’s appeal in raising the following substantive grounds :
“1. The Ld. CIT(A) erred on (acts and in law in holding that the provisions of Sec. 195 LW.S. 40(a)(ia) are not applicable to the (acts of the case on the issue of interest amounting to Rs.5,63,43,083/ - paid on foreign supplier bills without making TDS.
2. The Ld. CIT(A) erred in law in ignoring the decision of the Hon'ble Supreme Court in the case of Vijay Shipping Corporation & Others vs. CIT, Ahmedabad 314 ITR 309, decision of the Hon'ble Gujarat High Court I the case of CIT vs. Vijay Ship Breaking Corporation 261 ITR 113 and decision of the Hon'ble Madras
3. The Learned ClT(A) erred in not appreciating the fact that the Department is in appear before the Hon'ble High Court in appellant's Own case on identical issue for the A.Ys 2005-06, 2006-07 and 2007-08 in Appeal No. 236/Hyd./2009, 845/Hyd./2009 and 1462/Hyd./2010 dated 22.07.2011 respectively and the decision of the Hon'ble High Court is still awaited.”
It is evident at the outset that the Revenue’s instant sole grievance (supra) already stands adjudicated in assessee's favour in Assessment Years 2005-06 to 2007-08 before this tribunal. There is no distinction on facts as well as on law forthcoming from the department side. We notice from the CIT(Appeals) detailed discussion that earlier learned co-ordinate bench decision(s) already holds that section 40(a)(ia) r.w.s 195 does not apply qua payment of interest on foreign suppliers bill. We thus adopt judicial consistency in absence of any distinction on facts to affirm the CIT(Appeals) impugned conclusion. The Revenue’s sole 1632/Hyd/2016 fails there.
Coming to the assessee's cross appeal in ITA 1726/Hyd/2016 seeking to reverse both the lower authorities’ action making ALP adjustment of Rs.84,05,758, learned authorised representative rose to his seniority and stated at the Bar that the same is within 5% tolerance margin u/s. 92C(2) 2nd proviso of the Act and therefore, this taxpayer no more needs to press for the same. Ordered accordingly.
This Revenue’s appeal in ITA 1692/Hyd/2018 is dismissed and the assessee's cross appeal in ITA 1726/Hyd/2018 is dismissed as not pressed in above terms. A copy of this common order be placed in the respective files.