TMI Blog2014 (1) TMI 1742X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to the file of the Assessing Officer who shall consider it afresh after examining all the facts and materials on record. The Assessing Officer shall also take into consideration any decision which may be relied upon by the assessee in support of its claim. Since we have remitted the issue back to the file of the Assessing Officer for considering the same afresh, it will be open to the assessee to raise all other contentions with regard to its claim of not being liable to deduct tax at source u/s 195 of the Act. With the aforesaid observation, the matter is remitted to the file of the Assessing Officer for deciding the same in accordance with law after affording a reasonable opportunity of being heard to the assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... procures certain high end technology software licenses from its associate enterprise, Energy Solutions International Inc, U.S.A and sells it to the ultimate customers. For the impugned assessment year, the assessee filed its return of income on 31-10- 2007 declaring a total income of ₹ 34,73,050/-. During the assessment proceedings, the Assessing Officer while examining the accounts of the assessee noted that the assessee had debited an amount of ₹ 1,58,03,062/- towards software. On further examination, the Assessing Officer noted that the said expenditure includes the payment made towards purchase of certain software from Energy Solutions International, US and Neoware UK Limited for an amount of ₹ 1,33,46,155/-. The Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odification to the software. Further explaining, the learned AR submitted that the assessee does not provide any development services to the software products procured by it for resale. The customer based in India places a purchase order with the assessee. The assessee, in turn, on the basis of the purchase order of the customer, places a purchase order with its overseas associated enterprises for procuring the required software. The payment from customers towards software is received only once and there are no recurring payments. The learned AR submitted that the assessee is neither authorised nor is capable of making copies of the software as the software is protected with hardware lock or software lock permitting use by the end customer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside by the Income-tax Appellate Tribunal, Hyderabad Bench in ITA Nos. 1624 and 1625/Hyd/08 dated 10-2-2010 and the issue, has been remitted back to the Assessing Officer for considering the same afresh. The learned AR therefore contended that for the impugned years also the matter may be remitted back to the Assessing Officer to decide afresh after considering the contentions of the assessee as well as the ratio laid down in the decision reported in CIT vs. Dynamic Vertical Software India Private Limited (supra). 6. The learned Departmental Representative also expressed the view that the matter may be remitted back to the file of the Assessing Officer for considering the same afresh. 7. We have heard the contentions of the parties a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion with regard to the payment being made by the assessee as 'royalty' primarily relying upon the order of the CIT (A) passed for assessment years 2004-05 and 2005-06. However, the said order of the CIT (A) was carried in appeal to the Tribunal by the assessee. The Tribunal vide order dated 10-2-2010 in ITA Nos.1624 and 1625/Hyd/2008 remitted the matter back to the file of the Assessing Officer with the following observation:- "We have considered the rival submissions and perused the material available on record. After considering hate facts of the case, we find that both the representatives of rival parties agreed to send back the matters to the file of the Assessing Officer for reconsideration. In view of the above, we agree ..... X X X X Extracts X X X X X X X X Extracts X X X X
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