2021 (10) TMI 1399 - AT - Income Tax

Rectification of mistake u/s 254 - Incorrect and incomplete recording of the fact that the responsibility for installation and commissioning alongwith supply of equipment is with the appellant/applicant - HELD THAT - The issue has been decided by this Tribunal 2020 (12) TMI 857 - ITAT DELHI wherein the Tribunal has taken a view that the dominant purpose of the appellant/applicant is not to sell telecommunication equipment but to commission it after due customisation of hardware and software in accordance with the requirement of telecommunication service provider. After carefully perusing the contents of the Miscellaneous Applications, we are of the considered view that this Tribunal has taken a view after due appreciation of facts. It may be an error of judgment but not an error as contemplated in section 254(2) of the Act. We, therefore, do not find any reason to hold that there is a mistake apparent from record in the view taken by this Tribunal. This issue is, accordingly, dismissed. Incorrect adjudication of Ground of appeal No. 6 Attribution of profits - Non-adjudication of Ground of Appeal No. 7 Taxation of software as royalty - HELD THAT - We have given thoughtful consideration to the orders of this Tribunal. We are of the considered view that for the limited purpose of adjudication of Ground No. 6 with its sub-grounds and Ground No. 7, needs to be re-adjudicated as there is a mistake apparent from record in not adjudicating the captioned grounds. Therefore, for this limited purpose, the captioned order of this Tribunal is recalled for the captioned A.Ys for the adjudication of Ground Nos. 6 and 7 in their true perspective. Registry is directed to list the appeals for hearing of Ground Nos. 6 and 7 on 08th February, 2022 and inform the parties accordingly.

Summary

Issues Involved:
1. Incorrect and incomplete recording of the fact regarding responsibility for installation and commissioning of equipment.
2. Incorrect adjudication of Ground of appeal No. 6 - Attribution of profits.
3. Non-adjudication of Ground of Appeal No. 7 - Taxation of software as royalty.

Issue No. 1 - Responsibility for Installation and Commissioning:
The Tribunal previously decided that the appellant's main purpose is not selling telecommunication equipment but commissioning it after customization. After reviewing the Miscellaneous Applications, the Tribunal found no error in its judgment under section 254(2) of the Act. Thus, the issue was dismissed.

Issue No. 2 - Incorrect Adjudication of Ground No. 6:
The Tribunal considered and decided Issue No. 2 along with Issue No. 3, which was about the non-adjudication of Ground of Appeal No. 7. The Tribunal concluded that there was a mistake in not adjudicating these grounds properly. Therefore, the order was recalled for the relevant assessment years to re-adjudicate Ground Nos. 6 and 7 accurately. The appeals were scheduled for hearing on 08th February 2022, and the parties were informed accordingly. Consequently, all the Miscellaneous Applications were partly allowed.

This detailed analysis of the judgment highlights the Tribunal's reasoning and actions regarding each issue raised by the assessee. The Tribunal's thorough examination and decision-making process are evident in the comprehensive review and subsequent actions taken to address the identified errors and omissions in the initial order.