9911796707
TMI Blog2022 (10) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, since the Tribunal in assessee s own case has rejected this ground, ground no.6 alongwith all its sub-grounds raised by the assessee is liable to be dismissed and the same is dismissed as such. We place reliance upon the decision of the Hon ble Apex Court in the case of Honda Siel Power Products Ltd. vs CIT [ 2007 (11) TMI 8 - SUPREME COURT] regarding cannon of following Co-ordinate Bench decision. In this view of the matter, other case laws referred by the Ld. counsel for the assessee are not considered applicable in the particular facts of this case. This is more so when ITAT order has not been reversed by Hon ble jurisdictional High Court. Moreover, it is also noticed that assessee is already in appeal before the Hon ble High Court against this order of the Tribunal. We agree that the assessee can raise this necessary ground before the Tribunal but we are also of the opinion that judicial discipline also demands that we follow ITAT order in assessee s own case, facts being similar. Since ITAT in its common order dated 21.03.2014 [ 2014 (4) TMI 770 - ITAT DELHI] has categorically held that ground no.6 by the assessee is dismissed. We follow the same and hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een confirmed by Transfer Pricing Officer ('TPO') in his order dated January 29, 2013, no further income could be attributed and assessed to tax in India, in the hands of the Appellant. 7.1 On the facts and circumstances of the ease and in law, the Learned AO erred in proposing and the Hon'ble DRP further erred in confirming the action of Learned AO of allocating 30% of the total supplies towards software in the equipment mid taxing the same on gross basis as Royalty' under the provisions of the Act and Tax Treaty. Even otherwise, the subject allocation proposed by the Learned AO and confirmed by the Hon'ble DRP is incorrect and contrary to material furnished on record. 7.2 Without prejudice to above, in case it is held that the revenue from supply of software along with the hardware is taxable as Royalty under the provisions of Act and/or Tax Treaty, then the same being effectively connected with the alleged PE can at best be taxed oh net basis as Business Profits' under Article 7 of the Tax Treaty; 7.3 Without prejudice to above, on the facts and circumstances of the case and in law, the Learned AO as well as the Hon'ble DRP erred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminal equipments was carried out by the Appellant in India, the question of attributing-any income in India d9cs not arise. 6.2 On the facts and circumstances of the case and in law, the Learned AO as well as the Hon'ble DRP erred in not appreciating that no portion of profits, if any, accruing to Appellant from off shore sale of terminal equipments to Indian customers can be attributed to the alleged PE in India given the nature of equipment, customer profile and modalities of undertaking sales. 6.3 On the facts and circumstances of the case and in law, the Learned AO has erred in proposing and the Hon'ble DRP has erred in confirming arbitrary estimation of profits to the extent of 725 percent on offshore sales of equipments in the hands of the Appellant in India while completely disregarding the global operating margin of the Appellant for the year under consideration. 6.4 On the facts and circumstances of the case and in law, the Learned AO as well as the Hon'ble DRP erred in not appreciating that as the alleged PE of the Appellant has been remunerated at arms' length price and the same has also been confirmed by Transfer Pricing Officer (' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the issue of attribution of profit to the PE including attribution of profits despite remunerating the Indian AE at Arm s length in the case of the assessee is no more res integra. The Hon ble ITAT in absolutely identical circumstances, in the appeals filed for the A.Y. 2005-06~to 2008-09~in the decision dated 21.03.2074 has rejected the related grounds of appeal inJotoHn this regard, reference may kindly be made to the common Gr No. 6 of the appeals which read as under: 6. On the facts and circumstances of the case and in law, the learned AO erred in proposing and the Hon'ble DRP further erred in confirming the action of learned AO of attributing income to the alleged PE of the appellant. 6.1 On the facts and circumstances of the case and in law, the learned AO as well as the Hon'ble DRO erred in not appreciating that since no part of activity relating to sale of network equipment was carried out in India, the question of attributing any income to India did not arise. 6.2 On the facts and circumstances of the case and in law, the learned AO as well as the Hon'ble DRP erred in not appreciating that no portion of profits, if any, ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 29 30 of the order dated 21.03.2014, the Hon ble ITAT summed up its findings as under: 29. Ground Nos.- 1 to 9 raised by the assessee in ITA No.5254/Del/2011 5256/Del/2011 and ground Nos.l to 8 raised by the assessee in ITA No.5255/Del/2011 are identical to the grounds raised by the assessee in ITA No.5253/Del/2011 disposed of by us in the earlier portion of this order. For the detailed discussion and reasons recorded above - (i) Ground Nos.1 to 3 raised in these three appeals need no adjudication for the reasons given in paragraph 3 above. (ii) Ground No. 4 raised in these three appeals is rejected. (Hi) Ground Nos.5 6 raised by the assessee in these three appeals are rejected. (iv) The issue raised vide ground No. 7 raised in these three appeals is restored to the file of the Assessing Officer for recomputation of income as per our direction given in paragraph 22 above. (v) The issue raised vide ground No.8 by the assessee in ITA No.5254/Del/2011 and 5256/Del/2011 is restored to the file of the Assessing Officer for re adjudication as per our direction given in paragraph 27 above. (vi) Ground No.8 in ITA No.5255/Del/2011 and ground No.9 in ITA Nos.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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