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TMI Blog2011 (11) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the proceedings under section 147 of the Act is bad in law when there was no relevant material on record giving rise to any valid reasons to believe that income of the appellant had escaped assessment. 2. That on the facts and in the circumstances of the case and in law, the Panel erred in not directing the learned Assessing Officer (ld. AO) to follow the order passed by the Hon ble Delhi High Court (in ITA 1167/2009) and the Hon ble Income Tax Appellate Tribunal, New Delhi ( the Tribunal) (in ITA Nos. 5385 to 5387(Del)2004, 2623 to 2624(Del)2008, 735, 736, 5160(Del)2010) in appellant s own case holding that the appellant is not liable to be assessed to tax in India, when there was no change of facts recorded by the ld. AO from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see would qualify as fee for technical services as defined under section 9(1)(vii) of the Act as well as within the meaning of Article 12(5) of the India Netherlands DTAA. 8. That without prejudice to the above, on facts and circumstances of the case and in law, the ld. AO has erred in arbitrarily attributing the entire receipts from the customers falling on the beam covering India either fully or partially and not apportioning receipts which were India specific. 9. That the ld. AO erred in levy of interest under section 234B of the Act while computing the total demand payable by the appellant for the captioned assessment order. 10. That the ld. AO erred in levy of interest under section 234D of the Act while computing the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the aforesaid orders have been placed on record before us. 5. The ld. DR, on the other hand, has strongly relied on the impugned order, contending that the decision of the Hon ble Delhi High Court in the case of Asia Satellite Telecommunications Co. Ltd. (supra), stands challenged by the Department before the Hon ble Supreme Court. 6. We have heard the parties on this issue. We find the contention on behalf of the assessee to be correct. A copy of the Tribunal order in the assessee s case for assessment years 2000-01 to 2005-06 and 2007-08, passed on 11.3.2011, subsequent to the High Court order dated 17.2.2011, has been placed before us at APB 1 to 12. The relevant portion reads as follows:- The Hon ble High Court of Delhi in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither under sec. 9(1)(vi) or sec.9(1)(vii) of the Act. As a result, the appeal preferred by the assessee before the Hon ble High Court was allowed and the judgment of the Tribunal was set aside. 7. The further assertion on behalf of the Department that the Department s appeal against the aforesaid Tribunal order in the assessee s case stands dismissed by the Hon ble High Court vide order dated 30.9.2011 has also not been rebutted by the Department. 8. In view of the above, the grievance of the assessee qua this issue is found to be justified and is accepted as such. Therefore, ground Nos. 3 7 are accepted. 9. As a consequence of the above discussion, regarding ground Nos.3 7, ground Nos. 5,6 8 no longer survive and are rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X
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