2002 (12) TMI 43

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..... above appeals are dismissed as infructuous.
Judge(s) : S. H. KAPADIA., J. P. DEVADHAR. JUDGMENT The judgment of the court was delivered by S.H. KAPADIA J.-Both the above two appeals raise common question of fact and law and, therefore, they are decided by this court by this common judgment. Both the above appeals have been preferred by the department under section 260A of the Income-tax Act, 1961. The following question of law arises for determination in the above two appeals: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that no tax was to be deducted at source on payment made by the assessee to AVL-Gesselschaft Fur Verbrennungskraftmachlan M.B.H. Austria for the feasibility .....

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..... . Therefore, the matter was carried by the assessee in appeal to the Tribunal. By judgment and order dated May 10, 2000, the Tribunal opined that the agreement between the assessee and AVL was a contract in the nature of job work for conversion of existing engine into a revised version. Accordingly, it was held that the services rendered were technical services rendered by the foreign company outside India and, therefore, the payment was not taxable in India. Accordingly, the appeal was allowed on May 10, 2000. Being aggrieved, the Department has come by way of appeal to this court under section 260A of the Income-tax Act. The appeal was filed on September 15, 2000. Although the Department has prayed for interim relief in the Memo of Appeal .....

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..... er under section 195. In this case, the decision of the Tribunal was given on May 10, 2000, under which the assessee was allowed remittance without deducting tax deducted at source. The assessee has paid the Austrian company before the matter could be taken for hearing. It is well settled that section 195 deals with deduction subject to regular assessment. In fact, this appeal came before us for hearing on December 4, 2002, and it was adjourned to December 11, 2002, to enable the Department to ascertain as to what had happened in regular assessment proceedings. It was again adjourned on December 11, 2002 till today. Mr. R.V. Desai, learned senior counsel appearing on behalf of the Department, says that he has no instructions. In the circ .....

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