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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 ..... ector of Income Tax Vs. Ericsson A.B. (supra). This is a mistake apparent from record, which needs to be rectified. - Decided in favour of assessee. - MA Nos. 28 & 29/PUN/2017 (Arising out of ITA Nos. 73 & 74/PUN/2011) - - - Dated:- 6-12-2017 - SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM For the Appellant : Shri R.R. Vora For the Respondent : Shri Mukesh Jha ORDER PER VIKAS AWASTHY, JM : These Miscellaneous Applications u/s. 254(2) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) have been filed by the assessee seeking rectification of the mistake in the order of Tribunal dated 08-08-2013 vide which appeals of the assessee in ITA Nos. 73 74/PUN/2011 for the assessment years 2004-05 and 2006-07, respectively have been decided. 2. Shri R.R. Vora appearing on behalf of the assessee/applicant submitted that the assessee in ground No. 2 of the appeals had assailed the taxability of consideration received for facilitating grant of user rights in off-the-shelf software from Cummins India Ltd. and Cummins Diesel Sales Services (India) Ltd. and provision of related support services. The Tribunal while adjudicating this ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that in the present set of appeals identical error has been committed by the Tribunal in not considering the decision of Co-ordinate Bench and misreading the decision of Hon'ble Delhi High Court in the case of Director of Income Tax Vs. Ericsson A.B. (supra), the order of Tribunal in ITA Nos. 73 74/PUN/2011 may be recalled and the matter may be fixed for fresh hearing. 3. On the other hand Shri Mukesh Jha representing the Department vehemently opposed the Miscellaneous Applications filed by the assessee. The ld. DR submitted that facts in the case of assessee are distinguishable from the facts in the case of Allianz SE Vs. Asstt. Director of Income Tax (supra). The ld. DR contended that in the case of Allianz SE Vs. Asstt. Director of Income Tax (supra) agreement was with Germany, whereas, in the present case the agreement of assessee is with US. The ld. DR further elaborating the distinct features between the two cases submitted that in the case of Allianz SE Vs. Asstt. Director of Income Tax (supra), the assessee is engaged in insurance business, whereas, in the instant case the assessee is engaged in manufacturing of engineering products. Therefore, both the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the case of Director of Income Tax Vs. Ericsson A.B. (supra) has been followed. 6. The ld. AR of assessee has pointed that Mumbai Bench of the Tribunal in bunch of appeals by Reliance Communications Ltd. adjudicated the issue, Whether payment for purchase of software is in the nature of royalty‟ in terms of provisions of Section 9 of the Act read with relevant DTAA. The Tribunal decided the issue against assessee by following the decision of Hon'ble Karnataka High Court in the case of Commissioner of Income Tax Ors. Vs. Samsung Electronics Co. Ltd. Ors. (supra). The assessee therein filed Miscellaneous Applications highlighting that the Tribunal while adjudicating the issue had failed to consider the decision rendered in the case of Deputy Director of Income Tax (International Taxation) Vs. Solid Works Corporation (supra) and has also misread the ratio laid down by 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 discussing catena of judgments and the facts of the case concluded that, the Tribunal has not dealt with the case of Deputy Director of Income Tax (International Taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the objections raised before the Tribunal. Rather, a perusal of the submissions as summarized by the Tribunal in the impugned order from paragraph 5 onwards would reveal that the Revenue also entered into the merits of the case by justifying and supporting the findings and conclusions of the Tribunal in the initial order. Those are clearly on the merits of the controversy. In such circumstances when the parameters as they are and known to all, extremely limited, allegedly not adhered to is not the sole complaint. The complaint is that the Tribunal should not have re-visited and recalled its conclusions in the initial order also on merits. Thus, the view taken by the Tribunal is a mixed one. By perusing the order under challenge, we find that it could be termed as a plausible view of the proceedings. In the larger interest of justice the Tribunal felt that it must allow the assessee to contest the appeals of the Revenue which were decided by the initial order of 6th September, 2013, fully and properly on merits. A fair, just and complete opportunity ought to be granted and the assessee deserves the same. That is the conclusion of the Tribunal in the impugned order. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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