TaxTMI 
TaxTMI 
2014 (5) TMI 886
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....(3) of the Act for assessment years 2007-08 and 2008-09 respectively. 2. In ITA No.6888/Mum/2011 & 6889/Mum/2011 the assessee has also filed additional grounds. The grounds of appeal in all the appeals and additional grounds of raised in ITA No.6888 & 6889/Mum/2011 are reproduced below: Grounds of Appeal in ITA No.No.6562/MUM/2009(Assessee's Appeal) : On the facts and circumstances of the case and in aw the earned Commissioner of Income-tax (Appeals)-10[CIT (A)] erred in confirming the following ground: 1.1 That on the facts and in circumstances of the case, the learned Commissioner of Income Tax (Appeals)-10, Mumbai (hereinafter referred to as 'CIT(A)') erred in confirming the decision of the Assessing Officer ('AC') that the amount of Rs.117,820,808 payable to Atos Origin Hongkong Private Limited ("ATOS") is table to tax in India as royalty income under Section 9(1)(vi) of the Income tax Act, 1961 ('the Act). Grounds of Appeal in ITA No.No.219/M/2010(Revenue's Appeal) : 1. On the facts and in the circumstance....
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.... SCB India is a non resident company and does not fall within the ambit of the term 'Indian concern' as per the provisions of section 115A of the Act and accordingly, the provisions of section 115A of the Act do not apply to the payments made by SCB India. 2. On the facts and in the circumstances of the case and in law, the Learned AO erred in levying interest under section 234B of the Act without appreciating that the entire income of the assessee is subject to deduction of tax at source and hence, the question of advance tax, does not arise. Additional Grounds of Appeal : The under mentioned grounds of appeal are without prejudice to other grounds - 1. Without prejudice to Ground Nos. 1.1 to 1.4, on the facts and in the circumstances of the case and in law, while calculating the tax liability of the Appellant, the learned AO has erred in adopting chargeable income as Gross receipts instead of net receipts received by the Appellant (i.e. After deducting the expenses attributable to Gross receipts). The Appellant humbly prays that the learned AO be directed to compute the chargeable income of the Appellant by adopting net receipts instead of Gross receipts. T....
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....nge 1, Mumbai ('the Learned AO') and the Dispute Resolution Panel ('the DRP') erred in holding the sum of Rs.20,08,93,494 as Royalty' and 'Fees for Technical Services' under Section 9(1)(vi) and 9(1)(vii) of the Income tax Act, 1961 ("the Act"). 1.2 Without prejudice to above Ground No. 1.1, the Learned AO and the DRP erred in applying a higher rate of tax i.e. 20% (excluding surcharge and cess) as per section in 115A(1)(b)(A) of the Act to the payments made by SCB India to the assessee. In doing so. the AO and the DRP disregarded the Contract for Provision of Computing Services entered between the assessee and SCB India. 3. All these appeals were argued together by both the parties and for the sake of convenience all these appeals are being disposed of by this consolidated order. 4. It may be mentioned here that assessee in the present cases had filed application for extension of stay and vide order dated 4/10/2013 passed by the ITAT the applications filed by the assessee for extending the stay of demand in respect of assessment year 2006-07 and 2008-09 were dismissed. Against such order of ITAT the assessee had filed writ petitions before Hon&....
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....are required has to be examined in the light of amended provisions of section 9(1)(vi) which have not been examined either by the AO, DRP or by the Tribunal. Thus the main issue which involved in all these appeals is regarding the taxability or otherwise of the receipts of the assessee in the light of the aforementioned amended provisions. The aforementioned amendment is applicable from retrospective effect i.e. from 1/6/1976. Since the said retrospective amendment has been brought by the Finance Act, 2012 and the orders passed by the lower authorities and Tribunal were rendered before incorporation of the amended provisions, it is the case of Ld. AR that it will serve the interest of justice if the matter is restored back to the file of A.O. Ld. A.R has prepared a chart showing appeal wise grievances of the assessee as well department. The chart is as follows: Asst.Year ITA No. Issues Involved 2006-07 (Original assessment) 6562/Mum/2009 (Appellant's Appeal) Whether payments made by SCB India to the appellant are payment for "Royalty" u/s. 9(1)(vi) of Income Tax Act, 1961 (the Act)? (Ground 1.1) 2006-07 219/Mum/2010 (Dept's Appeal) Whether the CIT....
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....wed his predecessor's order in the case of ATOS Singapore to hold that the payment made by SCB India to the Appellant is payment for Royalty. Further, the CIT(A) followed his predecessor's order in the case of ATOS Singapore to confirm the action of the AO. 4.2 In AY 2007-08 & 2008-09, the AO in addition to holding the payment received is taxable as Royalty, also, alternatively, alleged it to be taxable as Fees for Technical Services ("FTS") .The DRP confirmed the action of the AU in both the years. 4.3 At the outset, it may be stated that while passing the above orders (refer table given at point no. 3), none of the lower authorities considered the favourable order of the Hon'ble Tribunal passed in the case of ATOS Singapore and SCB India (ITA No.3824/M/06 to 3828/M/06, 1932/M/08 to 1938/M/08, 1457/M/08) (order dated May ii, 2011) holding that the payment received from the SCB India for the provision of services of specialized data processing of raw data using mainframe computers cannot be characterized as a 'royalty' u/s 9(1)(vi) of the Inc....
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....ective amendment. The orders passed in the assessee's case by the AO, DRP and ITAT are prior to the aforementioned amendment in the Statute. Therefore, we are of the opinion that it would serve the interest of justice if all these appeals except ITA No.6888/mum/2011 are restored back to the file of AO with a direction to re-adjudicate the issues in accordance with law after giving further opportunity to the assessee and placing all the material required for adjudication of the issues raised in the present appeals. After giving such opportunity the AO will re-adjudicate all the issues raised in the present appeals as per provisions of law. 7. So far as it relates to grievances of the assessee in ITA No.6888/Mum/2011, the main grievance of the assessee is regarding initiation of re-assessment proceedings in respect of tax liability of the assessee regarding its receipts from SCB India and for the same assessment year in original proceedings, the same is restored back to the file of AO for re-adjudication. 7.1 Similar is the position in respect of Ground No.1.3 & 1.4 and additional ground No.1.5 in which the assessee has raised grievances regarding rates of tax to be applied....