Rajeev Sureshbhai Gajwani v. ACIT

MARUTI SUZUKI INDIA LTD.,NEW DELHI vs. DCIT, NEW DELHI

In the result, all the three appeals of the assessee are allowed as indicated above and the appeal of Revenue is partly allowed

Bench: Shris.Rifaur Rahman & Shri Vimal Kumar

…nd thus, the propositions laid down in the case of Herbalife were also applicable to India-Japan Tax Treaty. Reliance in this regard is also placed on the following decisions:  The Special Bench of Ahmedabad in the case of Rajeev Sureshbhai Gajwani vs. ACIT: 137 TTJ 1 held that a different treatment per se to a foreign enterprise is enough to invoke the non-discrimination clause.  Reference is made to the recent decision of the Agra ITAT in the case of DCIT vs. Gupta Overseas : 160 TTJ 257. During the course of scrutiny assessment proceedings for AY 2008-09, the assessing officer noticed that the assessee, an e…

DCIT, NEW DELHI vs. M/S. MARUTI SUZUKI INDIA LTD., NEW DELHI

In the result, all the three appeals of the assessee are allowed as indicated above and the appeal of Revenue is partly allowed

Bench: Shris.Rifaur Rahman & Shri Vimal Kumar

…nd thus, the propositions laid down in the case of Herbalife were also applicable to India-Japan Tax Treaty. Reliance in this regard is also placed on the following decisions:  The Special Bench of Ahmedabad in the case of Rajeev Sureshbhai Gajwani vs. ACIT: 137 TTJ 1 held that a different treatment per se to a foreign enterprise is enough to invoke the non-discrimination clause.  Reference is made to the recent decision of the Agra ITAT in the case of DCIT vs. Gupta Overseas : 160 TTJ 257. During the course of scrutiny assessment proceedings for AY 2008-09, the assessing officer noticed that the assessee, an e…

ACIT (LTU), NEW DELHI vs. M/S HAVELLS INDIA LTD., NEW DELHI

In the result, appeal of the assessee is partly allowed

Bench: Shri Amit Shukla & Shri Prashant Maharishihavells India Ltd, Vs. Dcit, 1/7 Ram Kishore Road, Circle-12(1), Civil Lines, New Delhi Cr Building Ip Estate, Pan: Aaach0351E New Delhi (Appellant) (Respondent) Havells India Ltd, Vs. Dcit, 1/7 Ram Kishore Road, Ltu, Nbcc Plaza, Civil Lines, New Delhi Pusp Vihar, Sector-4, Saket, Pan: Aaach0351E New Delhi (Appellant) (Respondent) Acit (Ltu), Vs. Havells India Ltd, Nbcc Plaza, Pusp Vihar, Sector- 1/7 Ram Kishore Road, 4, Saket, New Delhi Civil Lines, New Delhi Pan: Aaach0351E (Appellant) (Respondent)

…ve in law by the virtue of such non-discrimination clause: i. CIT vs. Herbalife International India (P.) Ltd: 384 ITR 276 (Delhi HC) ii. Mitsubishi Corporation India Private Limited vs. ACIT: 5147/Del/2010 (Del. ITAT) iii. Rajeev Sureshbhai Gajwani Vs ACIT: 137 TTJ 1 (Ahmedabad ITAT) DCIT vs. Gupta Overseas [ITA No. 257/Agr/2013 (Agra ITAT) iv. In view of the aforesaid, it is emphatically reiterated that amendment in section 40(a) (ia) of the Act, being clarificatory and retrospective in nature should equally apply to section 40(a) (i) of the Act. Being so, it is submitted that disallowance, if at all, shoul…

M/S HAVELLS INDIA LTD.,NEW DELHI vs. DCIT, NEW DELHI

In the result, appeal of the assessee is partly allowed

Bench: Shri Amit Shukla & Shri Prashant Maharishihavells India Ltd, Vs. Dcit, 1/7 Ram Kishore Road, Circle-12(1), Civil Lines, New Delhi Cr Building Ip Estate, Pan: Aaach0351E New Delhi (Appellant) (Respondent) Havells India Ltd, Vs. Dcit, 1/7 Ram Kishore Road, Ltu, Nbcc Plaza, Civil Lines, New Delhi Pusp Vihar, Sector-4, Saket, Pan: Aaach0351E New Delhi (Appellant) (Respondent) Acit (Ltu), Vs. Havells India Ltd, Nbcc Plaza, Pusp Vihar, Sector- 1/7 Ram Kishore Road, 4, Saket, New Delhi Civil Lines, New Delhi Pan: Aaach0351E (Appellant) (Respondent)

…ve in law by the virtue of such non-discrimination clause: i. CIT vs. Herbalife International India (P.) Ltd: 384 ITR 276 (Delhi HC) ii. Mitsubishi Corporation India Private Limited vs. ACIT: 5147/Del/2010 (Del. ITAT) iii. Rajeev Sureshbhai Gajwani Vs ACIT: 137 TTJ 1 (Ahmedabad ITAT) DCIT vs. Gupta Overseas [ITA No. 257/Agr/2013 (Agra ITAT) iv. In view of the aforesaid, it is emphatically reiterated that amendment in section 40(a) (ia) of the Act, being clarificatory and retrospective in nature should equally apply to section 40(a) (i) of the Act. Being so, it is submitted that disallowance, if at all, shoul…

M/S HAVELLS INDIA LTD.,NEW DELHI vs. DCIT, NEW DELHI

In the result, appeal of the assessee is partly allowed

Bench: Shri Amit Shukla & Shri Prashant Maharishihavells India Ltd, Vs. Dcit, 1/7 Ram Kishore Road, Circle-12(1), Civil Lines, New Delhi Cr Building Ip Estate, Pan: Aaach0351E New Delhi (Appellant) (Respondent) Havells India Ltd, Vs. Dcit, 1/7 Ram Kishore Road, Ltu, Nbcc Plaza, Civil Lines, New Delhi Pusp Vihar, Sector-4, Saket, Pan: Aaach0351E New Delhi (Appellant) (Respondent) Acit (Ltu), Vs. Havells India Ltd, Nbcc Plaza, Pusp Vihar, Sector- 1/7 Ram Kishore Road, 4, Saket, New Delhi Civil Lines, New Delhi Pan: Aaach0351E (Appellant) (Respondent)

…ve in law by the virtue of such non-discrimination clause: i. CIT vs. Herbalife International India (P.) Ltd: 384 ITR 276 (Delhi HC) ii. Mitsubishi Corporation India Private Limited vs. ACIT: 5147/Del/2010 (Del. ITAT) iii. Rajeev Sureshbhai Gajwani Vs ACIT: 137 TTJ 1 (Ahmedabad ITAT) DCIT vs. Gupta Overseas [ITA No. 257/Agr/2013 (Agra ITAT) iv. In view of the aforesaid, it is emphatically reiterated that amendment in section 40(a) (ia) of the Act, being clarificatory and retrospective in nature should equally apply to section 40(a) (i) of the Act. Being so, it is submitted that disallowance, if at all, shoul…

M/S HONDA CARS IMITED,NOIDA vs. DCIOT, NEW DELHI

Bench: Shri Kuldip Singh

…IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘A’ : NEW DELHI) (THROUGH VIDEO CONFERENE) SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER and BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER ITA No.375/Del./2016 (ASSESSMENT YEAR : 2006-07) M/s. Honda Cars India Ltd., vs. DCIT, LTU, A – 1, Sector 40/41, Surajpur-Kasna Raod, New Delhi. Greater Noida (Uttar Pradesh). (PAN : AAACH1765Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Deepak Chopra, Advocate Shri Amit Srivastava, Advocate Shri Ankul Goyal, Advocate REVENUE BY : Shri Sanjay Goel, CIT DR Date of Hearing : 09.07.2020 Date of Order : 17.07.2020 O R D E R PER KULDIP SIN…

M/S SUMITOMO CORPORATION,NEW DELHI vs. DCIT (INTERNATIONAL TAXATION), NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

M/S SUMITOMO CORPORATION,NEW DELHI vs. DCIT (INTERNATIONAL TAXATION), NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

SUMITOMO CORPORATION,NEW DELHI vs. DCIT, NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

DDIT, NEW DELHI vs. M/S. SUMITOMO CORPORATION, NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

DDIT, NEW DELHI vs. M/S. SUMITOMO CORPORATION, NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

DDIT, NEW DELHI vs. M/S. SUMITOMO CORPORATION, NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

DDIT, NEW DELHI vs. M/S. SUMITOMO CORPORATION, NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

SUMITOMO CORPORATION,DELHI vs. DDIT, NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

SUMITOMO CORPORATION,DELHI vs. DDIT, NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

SUMITOMO CORPORATION,NEW DELHI vs. DDIT, NEW DELHI

Appeal are allowed

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ed less favorably than compared to resident of India for similar business activities. Thus, the income of the PE should be taxed on net basis. The Ld. AR relied upon the decision of the Agra Special Bench Tribunal in case of Rajeev Sureshbhai Gajwani vs. ACIT 8 ITR 616. In addition, the Ld. AR submitted that this issue is covered by the order of the Tribunal in assessee’s own case for AY 1999-00 (ITA No. 867/Del/2006), wherein, after going the facts of the case the Tribunal held that the services received by the assessee does not fall under FTS and has to be considered as service in relation to construction, asse…

ITO, GURGAON vs. M/S. FILCO TRADE CENTRE, GURGAON

The appeal of the revenue is dismissed

Bench: Shri H.S. Sidhu & Shri L.P. Sahuasstt. Year: 2008-09

…ements of higher forum. The relevant extracts of the judgements as cited by the counsel were considered,the relevant extracts are reproduced herein below: • Special Bench of ITAT in the matter of Rajeev Sureshbhai Gajwani vs. ACIT reported in 137• TIJ 1 and 8 ITR (Trib) 616, inter alia the Hon'ble Bench Concluded: “8. We have considered the facts of the case and the submissions made before us. Facts, in short, are that assessee is a citizen of America and is a non- resident person in India in all the years under consideration. He has carried on the business of export of software out of India. Profits earned fro…

MITSUBISHI CORPORATION INDIA PVT. LTD.,NEW DELHI vs. DCIT, CIRCLE- 16(2), NEW DELHI

Bench: Shri R.K. Panda & Shri Kuldip Singh

…e Bench of the ITAT in Automated Securities Clearance Inc. v. Income Tax Officer(supra) is no assistance to the Revenue since the said decision is 23 said to be overruled by the Special Bench of the ITAT in the case of Rajeev Sureshbhai Gajwani vs ACIT (2011) 8 ITR (Trib) 616 (Ahmedabad). 61. In light of the above discussion, question (b) is answered in the affirmative, i.e., in favour of the Assessee and against the Revenue by holding that Section 40 (a) (i) of the Act is discriminatory and therefore, not applicable in terms of Article 26 (3) of the Indo-US DTAA.” 16. Following the decision rendered by coordin…