TaxTMI 
TaxTMI 
2018 (2) TMI 99
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....o. 4919/M/07, ITA No. 4920-4923/M/07 , ITA No. 4924to4926/M/07, ITA No. 4927/M/07 , ITA No. 4928/M/07, ITA No. 5071to5073/M/08 , ITA 5074to5076/M/08, ITA No. 5077/M/08, ITA 5078to5080/M/08, ITA No. 5081/M/08 , ITA 5082/M/08, ITA No. 5083/M/08 , ITA 5084-5085/M/08, ITA No. 5086-5087/M/08 , ITA 5088to5090/M/08, ITA No. 5091-5092/M/08 , ITA No. 5373/M/07, ITA No. 5474/M/08 , ITA 5467/M/08, ITA 5469-70/M/08 , ITA 5475/M/08, ITA No. 5476/M/08, ITA 5477/M/08, ITA No. 4501/M/09 ITA No. 5468/M/08 ITA No. 5471/M/08 ITA No. 5472/M/08 ITA No. 5473/M/08 For The Assessee : Shri Parag Vyas For The Revenue : Shri J.D.Mistry, Shri Deepak and Shri Ritu Panjabi ORDER PER R.C.SHARMA (A.M): A bunch of appeals by Revenue against various companies of Reliance (ADAG) group, hereinafter referred as "Reliance" for the sake of convenience, which include Reliance Communications Ltd., Reliance Telecom Ltd., Reliance BPO Ltd., and Reliance Communications Infrastructure Ltd., 2. Revenue has made a request to the Hon'ble President of the Income Tax Appellate Tribunal, Mumbai for constitution of Special Bench to decide the appeals pending before the „L' Bench of the Hon'ble Tri....
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....luence the outcome of these appeals." 5. Learned AR also invited our attention to section 255 of the Income-tax Act, 1961 which deals with procedures of Appellate Tribunal. The relevant extract of the aforesaid section is reproduced as under: "...,..,.(3) The President or any other member of the Appellate Tribunal authorised in this behalf by the Central Government may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member and which pertains to an assessee whose total income as computed by the Assessing Officer in the case does not exceed fifty lakh rupees, and the President may, for the disposal of any particular case, constitute a Special Bench consisting of three or more members, one of whom shall necessarily be a judicial member and one an accountant member. (4) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President of the Appellate Tribunal for hearing on such point or points....
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....see nor the Revenue can be allowed to reargue the same issue over and over again, when it has already been decided by a coordinate bench of the tribunal. If such a course is allowed, then every single repetitive issue would require reconsideration time and again because the aggrieved party would always try to convince the later bench over its point of view. Following the earlier order or making a reference to the special bench depends on the satisfaction of the Bench about the correctness or otherwise of the earlier order and not that on the view point of the aggrieved party, ft is only when a subsequent bench, on being seized of the matter, finds itself unable to endorse the earlier view, either sno mow or on the arguments of the parties, that it may make reference for the constitution of the special bench. The party dissatisfied with the earlier view cannot compel the later bench to either take a contrary view or make a reference for the constitution of the special bench. Thus it follows that once a 'particular view js taken, the subsequent benches of the tribunal become functus officio on that issue, subject to the exceptions discussed supra. Needless to mention at this junc....
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.... only this, the Department's Writ Petition challenging the MA order have also been dismissed by the Hon'ble High Court vide order dated August 8, 2017. 11. We have considered rival contentions and carefully gone through the orders passed by the Tribunal as well as High Court. In this case, Tribunal have passed orders in respect of the appeals filed by the Revenue, which was subsequently recalled in a M.A. vide order dated 18/11/2016. 12. Against the M.A. order, Department has filed writ petition challenging the same and the Hon‟ble High Court vide order dated 08/08/2017 dismissed it. After the dismissal of the writ petition, Revenue has filed an application before the Hon‟ble President for making a reference to the Special Bench. The Hon‟ble President vide its order dated 12/12/2017 directed the Registry to put up the matter before Division Bench for making recommendation as the whether or not Special Bench needs to be constituted in these appeals. So far as Constitution of special Bench is concerned, a reference to constitute a Special Bench flows from the members and not from the parties to the case. Furthermore, such a reference can be made by the....
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....r, 2015. We also found that as per the list of 21 cases placed on record wherein in the hands of recipients / deductees, the High Courts / Tribunals have held that receipts from sale of software were not taxable as „Royalty‟. This further supported the contention that the issue was settled by the High Courts and various benches of the Tribunal and did not warrant constitution of Special Bench. If the application for constitution of Special Bench of the revenue be accepted by the Bench then all 21 cases where in hands of deductees the Hon'ble High Courts / Tribunal has already held that income from sale of software is not royalty will be affected. Under these facts and circumstances, if the application for constitution of Special Bench of the Revenue be accepted by the Bench then 44 Special Benches need to be constituted, as there are 44 separate agreements entered by the assessee for which payment was made for purchase of software. Since, some agreements contain purchase of independent software and some of the agreement contains purchase of software alongwith hardware, every agreement would have to be examined for which 44 Special Benches would have to be constitute....