2014 (1) TMI 391

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....ding was given in the operative part of the order. The second mistake pointed out is with reference to the payments made for computer software to be considered as royalty, the issue of which was not pressed as the matter was contested before the Hon'blr High Court of Bombay. The third mistake pointed out is with reference to binding decision of the Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverage P. Ltd vs. CIT, 293 ITR 226 which was duly recorded by the ITAT and directed AO to examine whether there is any payment of taxes by those companies. Theobjection is with reference to not giving direction with reference to the disallowance under section 40(a)(ia). 2. We have heard the learned Counsel and the learned DR in detail. ....

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.... ultimately vide Para No.33, it was directed as under: "33. AO is directed to consider whether the amounts paid to Indian suppliers can be considered as royalty keeping in mind the latest pronouncements of various higher judicial authorities on the issue and the nature of purchase and the rights involved therein, in order to examine whether the payments can be considered as royalty as per Explanation 2 of clause vi of sub- section 1 of section 9. Assessee should be given due opportunity and issue should be considered in the light of the facts and the law on the issue. Ground is accordingly considered allowed for statistical purposes." 4. Now assessee pressed for giving suitable direction on the decision of the jurisdictional High Court wi....

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....in the case of Hindustan Coca Cola Beverages Pvt. Ltd vs. CIT (Supra) are with reference recovery of tax and levy of interest under section 201. In that context, the Hon'ble Supreme Court held that since assessee had paid the interest under section 201(1A) and there was no dispute that the tax due has been paid by the deductee, tax could not be recovered again from the assessee. However, the provisions of section 201 operate in a different context of recovery of tax and interest in case of default, whereas under section 40(a)(ia), the amounts which are covered by the provisions of TDS and on which TDS was not made were to be disallowed in its entirety in the income tax assessment of assessee (deductor) on specific types of payments mentione....