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2021 (4) TMI 251 - AT - Income TaxSeeking withdrawal of Revenue Appeal - Resolution of dispute under Mutual Agreement Procedure MAP with the U.S.A. - HELD THAT - Bare perusal of the letter dated 02.03.2021 written by the Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, Foreign Tax and Tax Research Division-1 to M/s. Ratheon Company, the taxpayer in this case, apparently goes to prove that all the issues raised by the taxpayer as well as the Revenue by way of filing aforesaid cross appeals have been settled under MAP, but subject to the acceptance to be conveyed by the taxpayer to the Competent Authority in India within 30 days of the receipt of the communication under Rule 44G (7) of the Income-tax Rules, 1962. We are of the considered view that when all the issues raised by the taxpayer and the Revenue have been settled under MAP, no purpose would be served by keeping the appeals filed by the taxpayer and Revenue alive just for the sake of some procedural formalities as contended by the ld. DR, because procedural technicalities is handmaid of justice. We wish to bring on record that when ld. CIT DR has failed to controvert the assertions made by the ld. AR for the taxpayer made in the light of the letter dated 02.03.2021 (supra) that all the issues pertaining to the appeals filed by the taxpayer as well as Revenue having been settled once for all under MAP , he should not stick to his ceremonial contention that he has not received any intimation from the AO concerned to withdraw the appeals filed by the Revenue. Even otherwise, he would have got the matter expedited at the level of AO, being a senior officer of the Department. CIT DR is not merely a post office to put forward the decision made by the AO rather being an officer of the court, he is required to assist the Bench on the factual and legal aspects involved in the aforesaid appeals in the interest of speedy disposal of litigation for the ease of business, to which Government of India is committed to. We are of the considered view that the letter dated 02.03.2021 written by the CBDT to the taxpayer stating therein that since all the issues raised by virtue of the taxpayer s appeals as well as Revenue s appeals have been settled once for all under MAP proceedings, nothing survives and as such, the contentions raised by the ld. DR to keep the appeals filed by the Revenue alive till completion of some formalities are not sustainable. Hence, the aforesaid appeals filed by the taxpayer are liable to be dismissed as withdrawn forthwith. Levy of interest under section 234B - Whether the appellant doesn t have any advance tax liability in terms of sections 207-209 of the Act? - HELD THAT - Undisputedly, the taxpayer is a non-resident company having establish Permanent Establishment (PE) in India and its entire tax was to be deducted at source by the payee on payment and as such, the taxpayer was not under any obligation to make payment of advance tax. In these circumstances, levy of interest u/s 234B from the taxpayer is not sustainable in the eyes of law. Following the decision rendered by Hon ble Delhi High Court in GE Packaged Power Inc. 2015 (1) TMI 1168 - DELHI HIGH COURT we are of the considered view that when undisputedly the taxpayer is a non-resident company and tax has been deducted at source on the entire payment made to it by the payee and it is under no obligation to make payment of advance tax and in these circumstances, levy of tax u/s 234B is not sustainable, hence ordered to be deleted. So, ground no.22 is decided in favour of the taxpayer.
Issues Involved:
1. Settlement of disputes under Mutual Agreement Procedure (MAP). 2. Withdrawal of appeals based on MAP settlement. 3. Levy of interest under section 234B of the Income Tax Act. Detailed Analysis: 1. Settlement of disputes under Mutual Agreement Procedure (MAP): The taxpayer, M/s. Raytheon Company, and the Revenue filed cross appeals concerning various assessment years. The taxpayer moved an application for MAP before the Competent Authority in the USA, which resulted in a settlement. The Indian Competent Authority confirmed this settlement on 02.03.2021. The principles adopted for the settlement included assuming a Permanent Establishment (PE) in India for the taxpayer and attributing business profits to this PE, taxing them at 30% of profits after applying the global profit margin to contract receipts. Specific contract revenues from software were characterized as royalties not attributable to the PE. 2. Withdrawal of appeals based on MAP settlement: The taxpayer sought to withdraw all its appeals and requested the dismissal of the Revenue's appeals as they became infructuous due to the MAP settlement. The Revenue's representative contended that procedural formalities needed to be completed before consenting to the withdrawal. However, the Tribunal noted that all issues raised by both parties were settled under MAP, and keeping the appeals alive for procedural formalities was unnecessary. The Tribunal emphasized that procedural technicalities should not hinder justice and that the CIT DR should assist the Bench in the interest of speedy litigation disposal. 3. Levy of interest under section 234B of the Income Tax Act: The taxpayer challenged the levy of interest under section 234B, arguing that it had no advance tax liability as a non-resident company with tax deducted at source on all payments. The Tribunal referenced the Delhi High Court's judgment in GE Packaged Power Inc., which held that non-resident companies with tax deducted at source are not liable for advance tax, and thus, interest under section 234B is not applicable. The Tribunal concluded that the levy of interest under section 234B on the taxpayer was not sustainable and ordered its deletion. Conclusion: All appeals filed by the taxpayer were dismissed as withdrawn, except for ground no.22 in ITA No. 5222/Del/2010 for AY 2007-08, which was allowed. The cross appeals filed by the Revenue were dismissed as infructuous. The Tribunal clarified that the Revenue could restore its appeals if required in the future. The order was pronounced in open court on 31st March 2021.
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