9911796707
TMI Blog2015 (5) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... - Uttarkhand High Court ] and the CIT(A) has merely followed the said decision, but yet the Assessing Officer is aggrieved that, as this decision has been challenged in appeal before Hon’ble Supreme Court, the CIT(A) ought not to have followed the same. Such a plea can only be stated and rejected. The mere fact that a binding judicial precedent has been challenged before a higher forum does not dilute, curtail or otherwise affect its binding nature. Once Hon’ble jurisdictional High Court has expressed a considered view on an issue, all the lower authorities in the judicial hierarchy, including this Tribunal as indeed the CIT(A), have to loyally follow this. There is no scope for deviating from this solemn duty. On this aspect of the matter, thus, the stand of the CIT(A) cannot be faulted - Decided in favour of assessee. - I.T.A. No.: 744 /Del/13, CO No. 73 /Del/13 - - - Dated:- 20-4-2015 - Pramod Kumar And C. M. Garg JJ. For the Appellant : Poonam Khaira Sidhu For the Respondent : Amit Arora ORDER Per Pramod Kumar: 1. By way of this appeal as also by the cross objection, correctness of learned CIT(A) s order dated 22nd November 2012, in the matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and/or DTAA. 7. Whether the CIT(A), has erred in not appreciating that assessees reliance on Jindal Drilling is misplaced since 44DA being the special provision for taxation of income in the nature of royalties and FTS where these are effectively connected with a PE, then if a special provision is made respecting a certain matter t hat matter is excluded from the general provision under the rule of Generallia specialibus non derogant and thus, its reliance on Jindal Dr illing is misplaced. 8. Whether the CIT(A) has erred in not appreciating that the decision of Director of Income Tax V Jindal Drilling and Industries Ltd. (2010) 320 ITR 104, pertaining to AY. 2000- 01, 2001-02 does not contain any reference to section 44DA as the said provision came on the Statute w.e.f. 1.4.2004 and the reliance thereon is thus misplaced. 9. Whether the CIT(A) has erred in not appreciating that he decision of Jindal Drilling Geofizyka Torun has not adjudicated the aspect of eligibility in terms of second limb of the exclusionary proviso i.e. for a project undertaken by the recipient as confirmed in CGG Veritas based on Delhi High Court decision in Rio Tinto. 10. Whether on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been challenged in appeal before Hon ble Supreme Court, the CIT(A) ought not to have followed the same. Such a plea can only be stated and rejected. The mere fact that a binding judicial precedent has been challenged before a higher forum does not dilute, curtail or otherwise affect its binding nature. Once Hon ble jurisdictional High Court has expressed a considered view on an issue, all the lower authorities in the judicial hierarchy, including this Tribunal as indeed the CIT(A), have to loyally follow this. There is no scope for deviating from this solemn duty. On this aspect of the matter, thus, the stand of the CIT(A) cannot be faulted. As for the first issue, i.e. whether the provisions of Section 44BB will apply t o the facts or whether Section 44DA will be applicable on the facts of this case, we will have to deal with the matter in a little more detail. 5. To adjudicate on this grievance, only a few material facts need to be taken note of. The assessee before us is a non-resident company, and, as it appears from the details furnished in the return of income, i t has an office at Midas Sahar Plaza, Kondivita, Andheri (East), Mumbai. During the relevant financial p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendering of these services in India, through a PE- as has been claimed to be the fact situation, will be taxable as normal business income in India, as is mandated by Section 44 DA of the Act, which, in the absence of any books of accounts, has been estimated at 25% of gross receipts. The CIT(A) has, following the decision of a coordinate bench in the case of CGG Veritas (ITA No. 4653/Del/2010; order dated 25th January 2012) and noting that the assessee has a PE in India and that the case pertains to assessment year prior to 2011-12), upheld the contention of the assessee, and has, accordingly, held that the income is liable to tax@ 10% under section 44 BB of the Act, and, aggrieved by the stand so taken by the CIT(A), the Assessing Officer is in appeal before us. . 6. We have heard the rival contentions at considerable length, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 7. Learned Commissioner (DR) has, even while accepting that the same issue came up for consideration before coordinate benches in the cases of Baker Hughes Asia Pacific Ors Vs ADIT [34 ITR (Trib) 192] and Baker Hughes Asia Pacific Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided this issue in favour of the assesse. It is submitted that the decision of the coordinate bench in the case of Baker Hughes Asia Pacific Ltd (supra), by which this issue in appeal is stated to be covered in favour of the assesse, did not take account the binding judicial precedents in the cases of PGS Geophysical (supra) and Gosalia Shipping (supra) as also many other relevant decisions, we should not be guided by the same. 8. Learned counsel for the assessee, on the other hand, submits that as the issue is squarely covered in favour of the assessee by decisions of the coordinate benches and these decisions are not yet overturned by the Hon ble Courts above, there is no occasion to deviate from the same. We are thus urged to confirm the findings of the CIT(A) and decline to interfere in the matter. 9. We have noted that the issue is directly covered by the decisions of the coordinate benches and there are no direct decisions on the issue by any higher forums. The meticulous research done by the learned Commissioner (DR), as also her erudite arguments, are of not of any practical effect at this stage. As for the BEPS considerations, as so strenuously argued by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
