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TMI Blog2017 (12) TMI 1676X X X X Extracts X X X X X X X X Extracts X X X X ..... l decided the issue following the decision of Hon'ble Karnataka High Court in the case of Commissioner of Income Tax & Ors. Vs. Samsung Electronics Co. Ltd. & Anr. reported as 345 ITR 494 which was in favour of the Revenue. The assessee during the course of submissions had placed reliance on various decisions including the decision of Hon'ble Delhi High Court in the case of Director of Income Tax Vs. Ericsson A.B. reported as 246 CTR 422 and the decision of Coordinate Bench of the Tribunal in the case of Allianz SE (Formerly known as Allianz AG) Vs. Asstt. Director of Income Tax in ITA No. 1569/PN/2008 for assessment year 2005-06 decided on 14-03-2012, wherein similar issue was decided in favour of the assessee. The ld. AR submitted that the Tribunal has misread the decision of Hon'ble Delhi High Court in the case of Director of Income Tax Vs. Ericsson A.B. (supra) to hold that the same is distinguishable on facts. The Tribunal further erred in not considering the decision of Co-ordinate Bench in the case of Allianz SE Vs. Asstt. Director of Income Tax (supra). The Tribunal while deciding the issue against the assessee overlooked the well settled law that in case of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e functionally different. The Tribunal while adjudicating the issue raised in ground No. 2 of the appeal by assessee has considered the decision rendered in the case of Director of Income Tax Vs. Ericsson A.B. (supra) and has distinguished the same on facts. It is not a case where the Tribunal has not considered the decision rendered in the case of Director of Income Tax Vs. Ericsson A.B. (supra). 4. Controverting the submissions made by DR, the ld. AR of assessee submitted that treaty between US and Germany are identical. Therefore, there would be no material difference whether the agreement is with the company situated at Germany or US. The ld. AR further submitted that in the instant case the software has been developed by Cummins Inc. to be used by all group concerns throughout the World. It is standard software which is used by every group concern of Cummins Inc. The issue in appeal is "permitted user of software". Identical issue was raised before Tribunal in the case of Allianz SE Vs. Asstt. Director of Income Tax (supra). Therefore, the ratio laid down by the Tribunal in the case of Allianz SE Vs. Asstt. Director of Income Tax (supra) would apply in the facts and circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Solid Works Corporation (supra) though the same was relied upon by the counsel of the assessee and this fact has been recorded in the order of Tribunal. The non-consideration of decision rendered by the Coordinate Bench on identical issue would result in a mistake, apparent from record. It is further held that the Tribunal while adjudicating the issue has not properly read the decision rendered by the Hon'ble Delhi High Court in the case of Director of Income Tax Vs. Ericsson A.B. (supra). The Mumbai Bench of the Tribunal after recording above observations finally concluded as under : "25. Accordingly, we hold that the impugned orders passed in Reliance group of cases suffers from mistake apparent from record on account of non-consideration of the decision rendered by co-ordinate bench on identical issue and also on account of misreading of decision rendered by Hon'ble Delhi High Court in the case of Ericson (supra). Accordingly we recall the impugned orders in exercise of powers granted u/s. 254(2) of the Act." 7. The Department filed writ petitions before the Hon'ble Bombay High Court assailing the decision of Tribunal passed in Miscellaneous Applications recalling it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, to our mind, is not vitiated by any error of law apparent on the face of the record or perversity warranting our interference in writ jurisdiction. 11. We are surprised that the initial order is passed on 6th September,2013. Aggrieved and dissatisfied with that order, the assessee had brought the appeals to this Court. In the meanwhile, they had also filed applications for rectification of the mistakes under section 254(2) of the Income Tax Act, 1961. Those applications were pending and were decided during the course of the appeals. The assessees having succeeded therein, withdrew their substantive appeals before this Court. We have seen a good number of years, namely four years, going by and neither sub-serving the larger interest of the public or the Revenue. Thereafter, we find that the Revenue challenged this order of 18th November, 2016, by the present petitions which have also taken ten months to be disposed of. This valuable time could have been utilised by commencing the hearing of the appeals afresh before the Tribunal and having them decided expeditiously. 12. In the light of the above, we dismiss these petitions. We clarify that the appeals of the Revenue which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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