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TMI Blog2012 (6) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... al Member. The revenue has filed these miscellaneous applications seeking for recall/rectification of the Tribunal's order dated 28-8-2009 in ITA Nos. 636, 637 665(Bang.)/2008, 1452/Bang./2008, 676 to 679(Bang.)/2008. 2. Briefly stated, the facts are as follows: The assessee-M/s. Bovis Lend Lease (India) Pvt. Ltd. is engaged in the business of project and construction management. It had entered into an agreement on 1-7-2001 with M/s. Lend Lease Asia Holdings Pte. Ltd. a company based in Singapore, ('Singapore Company). Under the said agreement, the Singapore Company was to provide certain services to the assessee in relation to day-to-day business operations consisting of administrative, legal, finance and accounting matters. In consideration of rendering of services the Singapore Company agreed to receive the costs incurred by it. The cost recovery according to the agreement was based on the time spent for rendering the services. The Chartered Accountant's report (by KPMG) certified that the amounts charged to the assessee did not include any profit margin. 2.1 An application under section 197(1) of the Act was made by the Singapore Company for receiving the payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an application made by the payee. Relying upon the Hon'ble Kerala High Court decision in the case of Cochin International Airport Ltd. v. Dy. CIT [WP(c) No. 6858 of 2009(B), dated 1-4-2009] and other cases, the Tribunal held that even if the certificate had been issued without the authority of law, in the circumstances of the case, it was not fair to allow a retrospective cancellation of the certificate. The revenue had taken no steps to cancel the certificates, nor have it changed, or modified or withdrawn. The Tribunal, therefore, concluded that as the revenue had issued the certificates and the assessee-company had acted on such certificates, the assessee subsequently cannot be declared, an assessee-in-default, under section 201 of the Income-tax Act. These conclusions are available from pages 52 to 53 of the order of the Tribunal, the discussion for which commences from page 45 onwards. ( ii ) The Tribunal noted that certain proceedings for regular assessment under section 143(2) for the assessment year 2004-05 had been completed after initiation of proceedings under section 201. The intimation for assessment year 2005-06 was also issued after such date. While concludi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 201(1) and no interest is leviable under section 201(1A). 4. Against the above order, the revenue has filed these Miscellaneous Petitions for rectifying certain mistakes apparent from the records. It is stated in the Miscellaneous Petitions that on three grounds/reasons, the order of the ITAT contains a mistake apparent from records within the meaning of section 254(2). 4.1 In ground No. 1, it is stated 'The Hon'ble ITAT while making an observation on page 66 para 103 of the order that "therefore, in the instant case, section 195 will be applicable because reimbursement of expenses relates to fee for technical services" yet had concluded that 'tax was not required to be deducted' which is a clear case of contradiction". The Tribunal on this aspect had held that the reimbursement of costs constituted 'fees for technical services' under the Act as well as the Treaty. Hence, tax was required to be deducted at source. In the conclusion, however, it was stated that "Hence, we hold that the authorities below were justified in holding that tax was not required to be deducted on the ground that the appellant-company reimbursed the expenses as the amounts payable were to be taxed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under section 260A for the consideration of the High Court. In its appeal before the High Court, the first substantial question of law raised by the revenue is as follows: "Whether the Tribunal was correct in holding that the technical services rendered under a contract between the assessee and its counterpart abroad was not liable to deduction of tax at source under section 195 of the Act, in view of the judgment of this Hon'ble Court in Jindal Thermal Power Co. v. DCIT and the judgment of the Apex Court in Ishikawajma Harima Heavy Industries Ltd. v. DCIT (288 ITR 408) = (2007-TII-01-SC-INTL)." If, 'offshore' is meant to be in India, then the ground in the miscellaneous petition is contrary to its understanding in the appeal before the High Court. In such circumstances, it cannot be said that there is a mistake apparent from records within the meaning of section 254(2) of the Act. If 'offshore' services mean services outside India, then the issue would be governed by the ratio of the Supreme Court decision in Ishikawajma Harima Heavy Industries Ltd.'s case ( supra ) as also the Karnataka High Court's decision in Jindal Thermal Power Co. Ltd.'s case ( supra ). Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently amended with retrospective effect. The provisions relating to rectification of an order would, therefore, not apply. In arriving at this conclusion, the High Court relied upon the decision of the Supreme Court in CIT v. Max India Ltd. [2007] 295 ITR 282/[2008] 166 Taxman 188. The Bombay High Court in CIT v. Sudhir S Mehta [2004] 265 ITR 548/139 Taxman 54 held that a retrospective amendment to law does not entitle the filing of maintaining of a miscellaneous petition under section 254(2) of the Act. The rejection of the miscellaneous petition by the Tribunal was upheld by the High Court. As a result, it cannot be held that the order of the Tribunal is liable to be interfered with. There is no mistake, much less a mistake apparent from records that requires rectification. 5.2 The Special Bench of the Tribunal, in the case of Tata Communications Ltd. v. Jt.CIT [2009] 317 ITR (AT) 1/121 ITD 384 (Mum.) held that when a question is pending before the High Court, it is not right that the same or part of the question is agitated before the Tribunal. It would then be the High Court that would decide on the correctness or otherwise of the decision of the Tribunal. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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