DDIT (IT) 3(1), MUMBAI vs. HALDOR TOPSOE A/S., NEW DELHI

सुनवाई की तायीख / Date of Hearing : 28.11.2016 घोषणा की तायीख /Date of Pronouncement : 16.12.2016 आदेश / O R D E R PER D. KARUNAKARA RAO, AM: There are two appeals under consideration. Both these appeals are filed by the Revenue pertaining to the assessment year 2009-2010 and 2010-2011. Since, the issues raised in these appeals are identical / inter-connected, therefore, for the sake of convenience they are clubbed, heard combinedly and disposed off in this consolidated order. Appeal wise adjudication is given in the following paras of this order.

in both the appeals are identical, therefore, for the sake of reference and for the purpose of adjudication, grounds raised by the Revenue for the AY 2010-2011 vide appeal are extracted as under:- “1. (i) On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred in accepting the claim of the assessee regarding the non- taxabiliy of the amounts of Rs. 5,22,29,322/- received from NRL (Numaligarh Refinery Ltd) on account of technical documentation / engineering etc without appreciating the fact that the fees received are separate and distinct from the machinery and equipment supplied, disregarding the fact that genesis of the two fees are from different contracts unlike AY 1991-1992. (ii) On the facts and in the circumstances, the CIT (A) erred in not appreciating the facts that in the AY 2007-2008 and 2008-09 the ITAT in the assessee’s own case remanded the similar issue back to the AO to analyse the two separate agreements (one for sale of equipments and other for technical documentation / engineering) to understand the nature of transaction and he should have allowed similar opportunity for this year.

2. On the facts and in the circumstances, the CIT (A) erred in treating the amount of Rs. 3,19,01,315/- received from GNFC, on account of abandonment of assessee’s project, as compensation and not royalty and FTS as established by the AO.”

3. There is none to represent the case of the assessee before us despite the issue of notice at 7 different dates. Therefore, considering the consistent non- appearance of the assessee or its representative, we proceed to adjudicate these appeals on merits with the help of the Ld DR for the Revenue and the relevant material on record.

4. During the proceedings before us, Ld DR for the Revenue defended the order of the Assessing Officer and relied heavily on the argumentative grounds raised by the Revenue for both the AYs. Eventually, bringing our attention to Ground no.1(ii), Ld DR submitted that the CIT (A) granted relief to the assessee relying on the orders of the Tribunal for the AYs 2007-08 and 2008-09. Further, Ld DR brought our attention to the Tribunal’s order for the AY 2008-2009 vide ITA No.8364/M/2010 and ITA No.7008/M/2011 [TS-5446-ITAT-2013 (Mumbai)-O], dated 5.4.2013 and submitted that the matters raised in the said appeals for the AYs 2007-08 and 2008- 09 were remanded to the file of the AO as per the discussion given in para 6 of the said Tribunal’s order (supra). Ld DR further mentioned that there is no clarity about the absence of cross appeals.

5. After hearing the Ld DR and on perusal of the grounds raised in the present appeals and comparing the same with that of the issues remanded by the Tribunal to the file of the AO, we find, paras 6 & 7 of the said Tribunal’s order are relevant and the same are extracted as under:- “6. We have heard the Ld DR as well as the Ld AR of the assessee and considered the relevant material on record. The facts are identical to the facts for the AY 2007-2008. We have decided the identical issue in the appeal of the assessee for the AY 2007-2008. Accordingly, we set aside the impugned order of the CIT (A) and remand the matter to the record of the Assessing Officer on the identical terms as for the Assessment Year 2007-08.

7. In the result, appeal filed by the assessee as well as the Revenue are allowed for statistical purposes.”