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TMI Blog1986 (11) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ow-how by the latter for the establishment and operation of a Magnesite Benefication Plant which was to be set up by the assessee-company at its magnesite works atSalemin Tamil Nadu. This agreement was approved by the Government of India on17-12-1983. Under this agreement a lump sum consideration was payable by the assessee-company in one instalment to the West Germany company for preparing and providing to the assessee-company lay out, data and other technical information for the establishment of the abovesaid plant. The aforesaid consideration payable to the West German company was net of tax, i.e., the tax liability of the West German company was to be borne by the assessee-company. In order to remit the aforesaid lump sum consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 248 with the following observations : " The dispute as is evident from the grounds and the ITO's letter dated21-5-1984is not of the nature described in section 248. The dispute is to whether the assessee's liability for tax deduction at source falls under sub-clause (ii)(1) of clause (i) of clause (b) of sub-section (1) of section 115A or under sub-clause (iii) thereof. The assessee is not one who having in accordance with the provisions of section 195 deducted and paid tax in respect of any sum chargeable under this Act... denies his liability to make such deduction. The company in fact admits the liability for making such deduction as is mentioned in section 195 but contests the amounts on the basis of a dispute not under section 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case as pointed out by the assessee's counsel at 40 per cent, which was the rate demanded by the ITO, the ingredients of section 248 appear to have been satisfied and, therefore, the appeal was maintainable. 5. Normally this concession would have been enough for us to hold that the appeal was maintainable and remit it back to the Commissioner (Appeals) for disposal on merits. Before we do that, we would like to point out what exactly section 248 provided and how the payment of tax is a necessary requisite to qualify an assessee to file an appeal : " 248. Any person having in accordance with the provisions of sections 195 and 200 deducted and paid tax in respect of any sum chargeable under this Act, other than interest, who denie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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