TaxTMI 
TaxTMI 
2011 (7) TMI 309
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....e reproduced from the ITA No. 2513/M/08 as under :- "1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in not admitting appeals under section 248 of the Income-tax Act, 1961 for payments made to non-resident for import of software under section 195 after deducting tax thereon. 2. Without prejudice to Ground No. 1, on the facts and in the circumstances of the case and in law, the learned CIT(A) erred in not going to into the case whether the import of software amounts to purchase and sale of goods and consequently the payment made for the import of goods are receipts in the hands of non-resident as their business income and not royalties." 3. To dispose of these ....
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....re the Tribunal. 6. The learned counsel for the assessee, Mr. Arvind Sonde, submitted that the CIT(A) was in error in applying the decision of jurisdictional Tribunal in the case of Mahindra & Mahindra Ltd. (supra), as in that case, appeal was filed by the assessee against the certificate issued by a Chartered Accountant firm, that too, without deducting the tax and thereafter remitting the tax deducted at source. He pointed out that in the case of the assessee the tax has been deducted at source and remitted to the Central Government Account and thereafter appeals have been filed before the CIT(A). He relied upon the following case laws to the proposition that an appeal can be filed directly u/s 248 of the Act, before the CIT(A) :- &....
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.... of the ratio laid down by the co-ordinate Bench (supra), the learned counsel for the assessee submitted that all these appeals may be remitted to the file of the CIT(A) for disposing off the same on merits. 9. On the other hand, the learned DR Mr. Jitendra Yadav, opposed the contentions of the learned counsel for the assessee and pointed out that the order of the Tribunal in the case of Kotak Mahindra Bank Ltd. (supra) deals with position of law as it stood prior to the amendment by the Finance Act, 2007 with effect from 1-6-2007. He invited our attention to section 248 as applicable with effect from 1-6-2007 and submitted that the section contemplates an agreement or arrangement and a situation where the tax is to be borne by the perso....
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....through a provision and submitted that even under the post amendment conditions to section 248, the assessee is entitled to file an appeal with the CIT(A) directly. 12. On careful consideration of rival submissions, facts and circumstances of the case and perusal of case laws cited as well as the orders of CIT(A), we hold that whether, the law as amended with effect from 1-6-2007 to section 248 is applicable or not, has not been adjudicated by the learned CIT(A) and the facts have not been verified. If it is concluded that, on the facts and circumstances of the case, the law as existed prior to the amendment brought on the statute by the Finance Act, 2007, is applicable then, the learned CIT(A) was in error as his decision is contrary to....