Income Tax Appellate Tribunal - Pune
Allianz Se (Formerly Known As Allianz ... vs Assessee on 20 February, 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "B", PUNE
BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER
AND Ms. SUSHMA CHOWLA, JUDICIAL MEMBER
ITA Nos.87 & 337/PN/2013
Assessment Years: 2008-09 & 2009-10
Allianz SE (Formerly known as Allianz AG)
C/o SRBC & Associates,
Chartered Accountants
C-401, 4th Floor, Panchshil TechPark,
Yerawada, Pune - 411006 .... Appellant
PAN: AAAAA2110L
Vs.
The Dy. Director of Income Tax
(International Taxation-I), Pune .... Respondent
Appellant by : Rajan Vora
Respondent by : A.K. Modi
Date of hearing : 12-02-2015
Date of pronouncement : 20-02-2015
ORDER
PER SUSHMA CHOWLA, JM:
Both the appeals filed by the assessee are against the respective orders of Dy. Director of Income Tax (International Taxation-I), Pune dated 25.10.2012 and 29.11.2012 relating to assessment years 2008- 09 and 2009-10, respectively passed under section 143(3) r.w.s.
144C(13) of the Income-tax Act, 1961.
2. Both the appeals relating to the same assessee were heard together and are being disposed of by this consolidated order for the sake of convenience.
3. In both the captioned appeals, the issue raised by the assessee against the assessability of consideration received for provision of user 2 ITA No.87/PN/2013 ITA No.337/PN/2013 Allianz SE rights of software "OPUS" was whether royalty under Article 12 of the Tax Treaty and therefore liable to tax in India at 10%.
4. The assessee is aggrieved by the order of authorities below in holding that the said consideration received for provision of user rights of software "OPUS" to be royalty as defined in Explanation 2 to section 9(1)(vi) of the Act and consequently, enhancing the income of the assessee by the said amount relating to provision of user rights of software "OPUS".
5. Both the Authorized Representatives agreed that the said consideration received for provision of user rights of software "OPUS"
was held to be not taxable in the hands of the assessee by the Pune Bench of the Tribunal in ITA Nos.157 & 158/PN/2011, relating to assessment years 2004-05 & 2007-08 respectively, vide order dated 25.06.2012, as under:-
"8. We have considered the rival arguments made by both the sides, perused the order of the AO and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Tribunal in assessee's own case vide ITA No. 1569/PN/2008 order dated 14- 03-2012 for assessment year 2005-06 has held as under :
11. We have carefully considered the rival submissions. The pertinent point to be addressed in this appeal relates to the nature of the payments received by the assessee as license charges. As per the assessee, the payments have been received against granting of a user right in the Opus software, which is a copyrighted product and not for the use of copyright itself. Therefore, the case of the assessee is that such license charges are liable to be treated as profits falling in Article 7 of the India-Germany DTAA and as such license charges are not attributable to a Permanent Establishment (PE) in India, same are not taxable in India. In so far as the plea of the assessee that it has granted only user right to BA Life and BA General in terms of the license agreement, the same is not disputed by the Assessing Officer.
The following discussion by the Assessing Officer would show that there is no dispute to the assessee's assertion that it is only right to use of a copyrighted article which has been granted and not for the use of a copyright:-
"Thus the rights were received by Allianz AG to use the software. These rights were transferred by Allianz to BA Life and BA General to use the software in Indian Territories. Thus, the licensee in first case (between Certis and Allianz) becomes sub-licensor (between Allianz and BA Life/BA general.) As submitted by the assessee the copyright of OPUS vests with the CGI Group. Now CGI Group has assigned the right to use the software to Allianz AG in the Authorized Territories (Basically all 3 ITA No.87/PN/2013 ITA No.337/PN/2013 Allianz SE world except Canada) for which Allianz AG will pay some amount to CGI Group. Further, Allianz AG assigns the right to use the software to BA Life and BA General being its affiliates in India. As per the copyright Law, whenever the assignee of a copyright becomes entitled to any rights comprised in the copyright, he shall be treated as the owner of copyright in respect of those rights. The assignor shall also be treated as the owner of copyright in respect of unassigned rights. If we apply this principle we can say that, in respect of the Authorised territory, the right to use the Software OPUS lies only with Allianz despite the fact that the copyright of OPUS lies with CGI Group. In respect of exercising the right to use the software OPUS, Allianz will have no limitation except as those binding on it by the terms of the Agreement. But will definitely enjoy the right to use the software as its owner. There won't be any other rights associated with OPUS at the disposal of Allianz. e.g. it cannot brand this product as its own, it cannot term this produce as its own, it cannot market this produce etc. Similar to the rights of Allianz in the Authorised Territory, the BA Life and BA General will enjoy the rights in India. The rights in this regard only mean the right to use the Software in India.
5.5.........................................................................The thing to be noted here is that the copyright over the software remained with the CGI Group."
Pertinently, there is no disagreement that the copyright continue to remain with the CGI as observed by the Assessing Officer. The point to be addressed is as to whether the payments in question have been received by the assessee for grant of use of a copyright or for grant of use of a copyrighted article. Ostensibly, the payments have been received by the assessee for grant of use of a copyrighted article and not for use of the copyright itself. Thus, the point to be addressed is whether such payments are in the nature of royalty. Similar situation was considered by the Special Bench of the Tribunal in the case of Motorola Inc. (supra). In that case,, the Revenue had contended that the receipts in respect of license to use software, which was a part of the hardware, could be taxed on the basis that the same constituted 'royalty' within the meaning of section 9(1)(vi) of the Act and the relevant clauses of the Double Taxation Avoidance Agreement (DTAA) with the country of assessee's residence. As per the Special Bench, if the payment was for copyright, the same was liable to be classified as 'royalty' under the Act as well as under the DTAA so as to be taxable in the hands of the assessee. On the contrary, if the payment is found to be for a copyrighted article, then it takes the character of purchase price of the article and would not constitute royalty under the Act or under the relevant clauses of the DTAA. The Special Bench after considering the meaning of the expression 'royalty' under the Act and that of a 'copyright' under the Copyright Act, 1957 held that what was sold by the non-resident was the copyrighted article and the payment was not for a copyright. The aforesaid proposition has since been examined and affirmed by the Hon'ble Delhi High Court in its order dated 23.12.2011 (supra), the relevant portion reads as under:
"WHETHER THE INCOME FROM THE SUPPLY CONTRACT CAN BE TREATED AS 'ROYALTY' UNDER SECTION 9(1)(vi) OF THE ACT:
50. Section 9(1)(i) of the Act which deals with the taxability of royalty income reads as under: Section 9 INCOME DEEMED TO ACCRUE OR ARISE IN INDIA.
(1) The following incomes shall be deemed to accrue or arise in India :-
4 ITA No.87/PN/2013 ITA No.337/PN/2013Allianz SE
(i) All income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situatein India"
51. The submission of Mr. Prasaran, leamed ASG was that Software part of the equipment supply would attract royalty as copy right of the said software programme still vests with the assessee. Therefore, payments made or the licence to use the software programme give rise to royalty for the purposes of both the IT Act as well as DTAA entered into between Sweden and India. Referring to Explanation II (v) to section 1(vi) of the Act as well as Article 13, para 3 of DTAA, it was argued that for the purposes of Income-tax law, is essentially a payment received as consideration for the use or right to use a particular integral property right, whether partially or entirely.
52. We find that the Tribunal has held that there was no payment towards any royalty and this conclusion is based on the following reasoning:
(i). Payment made by the cellular operator cannot be characterized as royalty either under the Income Tax Act or under the DTAA.
(ii). The operator has not been given any of the seven rights under S.14 (a) (i) to (vii) of the Copyright Act, 1957 and, therefore what is transferred is not a copyright but actually a copyrighted article.
(iii). The cellular operator cannot commercially exploit the software and therefore a copyright is not transferred.
(iv). Further, the parties to the agreement have not agreed upon a separate price for the software and therefore it is not open for the income tax authorities to split the same and consider part of the payment for software to be royalty
(v). The bill of entry for importing of goods shows that the price has been separately mentioned for software and that this was only for the purposes of customs. There is no evidence to show that the assessee was a party to the fixation of value for the customs duty purposes.
(vi). The software provided under the contract is goods and therefore no royalty can be said to be paid for it.
53. Mr. Prasaran, countered the aforesaid reasoning arguing that Clause 20 of the Supply Contract uses the term 'licence' and the same term is used in the context of software throughout the three Agreements indicating that it is not an outright sale of goods, or a full transfer rights from the assessee to the Indian company. He also submitted that the software is a computer programme, which is treated differently from a book, not only in the Copyright Act,1957 but also the Income tax Act' itself. His submission was that Section 52(1) (aa) of the Copyright Act only deems that certain acts will not to amount to infringement in the light of various concerns, where otherwise such acts would amount to infringement under Section 51 of the Copyright Act.
The provision cannot by itself be used to hold that no right exists in the first place since the scope of the right has to be understood only from the provisions of Section 14 of the Copyright Act, 1957. He also argued that the ITAT has misinterpreted the provisions of the DTAA, specifically Article 13, para 3 of the DTAA (Article 12, para 3 of the Model Convention) which defines royalties to mean "payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work". The ITAT, submitted, has not appreciated that the royalty is for the use or right to use any copyright. According to him, since title of 5 ITA No.87/PN/2013 ITA No.337/PN/2013 Allianz SE the software continued to vest with the assessee as provided in clause 20.2 of the Supply Agreement and the assessee was free to grant non-exclusive licenses to other parties, it follow that there was no full time transfer of copyright but I was only a case of right to use the software, and thus payment for use of software is to be treated as royalty. He further argued that reference to OECD Commentary was not apposite as it could not be used to interpret the scope of the relevant provisions of DTAA.
54. It is difficult to accept the aforesaid submissions in the fact~present casco We have already held above that the assessee did l1( any business connection in India. We have also held that the sur equipment in question was in the nature of supply of goods. This issue is to be examined keeping in view these findings. MOl another finding of fact is recorded by the Tribunal that the COoperator did not acquire any of the copyrights referred to in Sect] (b) of the Copyright Act,1957.
55. Once we proceed on the basis of aforesaid factual finding~difficult to hold that payment made to the assessee was in the nature of royalty either under the Income-Tax Act or under the DTAA. We have to keep in mind what was sold by the assessee to the Indian customers was a GSM which consisted both of the hardware as we] software, therefore, the Tribunal is right in holding that it permissible for the Revenue to assess the same under two articles. The software that was loaded on the hardware did not l independent existence. The software supply is an integral pal GSM mobile telephone system and is used by the cellular operator for providing the cellular services to its customers. There could no independent use of such software. The software is embodied in the system and the revenue accepts that it could not be used independently. This software merely facilitates the functioning of the equipment an integral part thereof. On these facts, it would be useful to refer judgment of the Supreme Court in TATA Consultancy Services State of Andhra Pradesh, 271 ITR 401, wherein the Apex Court held that software which is incorporated on a media would be goods and therefore, l liable to sales tax. Following discussion in this behalf is required to be noted:- ` "In our view, the term "goods" as used in Article 366(12) of the Constitution of India and as defined under the said Act are very wide and include all types of movable properties, whether those properties be tangible or intangible. We are in complete agreement with the observations made by this Court in Associated Cement Companies Ltd. (supra). A software programme may consist of various commands which enable the computer to perform a designated task. The copyright in that programme may remain with the originator of the programme. But the moment copies are made and marketed, it becomes goods, which are susceptible to sales tax. Even intellectual property, once it is put on to a media, whether it be in the form of books or canvas (In case of painting) or computer discs or cassettes, and marketed would become "goods". We see no difference between a sale of a software programme on a CD/floppy disc from a sale of music on a cassette/CD or a sale of a film on a video cassette/CD. In all such cases, the intellectual property has been incorporated on a media for purposes of transfer. Sale is not just of the media which by itself has very little value. The software and the media cannot be split up. What the buyer purchases and pays for is not the disc or the CD. As in the case of paintings or books or music or films the buyer is purchasing the intellectual property and not the media i.e. the paper or cassette or disc or CD. Thus a transaction sale of computer software is clearly a sale of "goods" within the meaning of the term as defined in the said Act. The term "all materials, miicles and commodities" includes both tangible and intangible/incorporeal property which is 6 ITA No.87/PN/2013 ITA No.337/PN/2013 Allianz SE capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, Stored, Possessed etc. The Software programmes have all these attributes."*************** "In Advent Systems Ltd. v. Unisys Corpn, 925 F. 2d 670 (yct Cir. 1991), relied on by Mr. Sorabjee, the court was concerned with interpretation of uniform civil code which "applied to transactions in goods". The goods therein were defined as "all things (including specially manufactured goods) which are moveable at the time of the identification for sale". It was held:
"Computer programs are the product of an intellectual process, but once implanted in a medium are widely distributed to computer owners. An analogy can be drawn to a compact disc recording of an orchestral rendition. The music is produced by the ministry of musicians and in itself is not a "good," but when transferred to a laser-readable disc becomes a readily merchantable commodity. Similarly, when a professor delivers a lecture, it is not a good, but, when transcribed as a book, it becomes a good. That a computer program may be copyrightable as intellectual property does not alter the fact that once in the form of a floppy disc or other medium, the program is tangible, moveable and available in the marketplace. The fact that some programs may be tailored for specific purposes need not alter their status as "goods" because the Code definition includes "specially manufactured goods."
56. A fortiorari when assessee supplies the software which is incorporated on a CD, it has supplied tangible property and the payment made by the cellular operator for acquiring such property cannot be regarded as a payment by way of royalty.
57. It is also to be borne in mind that the supply contract cannot be separated into two viz. hardware and software. We would like to refer the judgment of Supreme Court in CIT Vs. Sundwiger EMFG Co., 266 ITR 110 wherein it was held:
"A plain and cumulative reading of the terms and conditions of the contract entered into between the principal to principal i.e., foreign company and Midhani i.e., preamble of the contract, Part-I and II of the contract and also the separate agreement, as referred to above, would clearly show that it was one and the same transaction. One cannot be read in isolation of the other. The services rendered by the experts and the payments made towards the same was part and parcel of the sale consideration and the same cannot be severed and treated as a business income of the non-resident company for the services rendered by them in erection of the machinery in Midhani unit at Hyderabad. Therefore, the contention of the Revenue that as the amounts reimbursed by Midhani under a separate contract for the technical services rendered by a non resident company, it must be deemed that there was a "business connection", and it attracts the provisions of Section 9(1)( vii) of the Income Tax Act cannot be accepted and the judgments relied upon by the Revenue are the cases where there was a separate agreement for the purpose of technical services to be rendered by a foreign company, which is not connected for the fulfilment of the main contract entered into principal to principal. This is not one such case and thus the contention of the Revenue cannot be accepted in the circumstances and nature of the terms of the contract of this case."
58. No doubt, in an annexure to the supply contract the lumpsum price is bifurcated in two components, viz., the consideration for the supply of the equipment and for the supply of the software. However, it was argued by the learned counsel for the assessee that this separate specification of the 7 ITA No.87/PN/2013 ITA No.337/PN/2013 Allianz SE hardware/ software supply was necessary because of the differential customs duty payable.
59. Be as it may, in order to qualify as royalty payment, within the meaning of Section 9(1) (vi) and particularly clause (v) of Explanation-II thereto, it is necessary to establish that there is transfer of all or any rights (including the granting of any license) in respect of copy right of a literary, aliistic or scientific work. Section 2 (0) of the Copyright Act makes it clear that a computer programme is to be regarded as a 'literary work'. Thus, in order to treat the consideration paid by the cellular operator as royalty, it is to be established that the cellular operator, by making such payment, obtains all or any of the copyright rights of such literary work. In the presence case, this has not been established. It is not even the case of the Revenue that any right contemplated under Section 14 of the Copyright Act,1957 stood vested in this cellular operator as a consequence of Article 20 of the Supply contract. Distinction has to be made between the acquisition of a 'copyright right" and a "copyrighted article".
60. Mr. Dastur is right in this submission which is based on the commentary on the OECD Model Convention. Such a distinction has been accepted in a recent ruling of the Authority for Advance Ruling(AAR) in Dassault Systems KK 229 CTR 125. We also find force in the submission of Mr Dastur that even assuming the payment made by the cellular operator is regarded as a payment by way of royalty as defined in Explanation 2 below Section 9(1) (vi), nevertheless, it can never be regarded as royalty within the meaning of the said term in article 13 para 3 of the DTAA. This is so because he definition in the DTAA is narrower than the definition in the Act, Article 13(3) BRINGS WITHIN THE AMBIT OF THE DEFINITION OF ROYALY A PAYMENT MADE FOR THE USE OF OR THE RIGHT TO USE A COPYRIGHT OF A LITERARY WORK. Therefore, what is contemplated is a payment that is dependent upon user of the copyright and not a lump sum payment as is the position in the present case.
61. we thus hold that payment received by the assessee was towards the title and GSM system of which software was an inseparable parts incapable of independent use and it was a contract for supply of goods. Therefore, no part of the payment therefore can be classified as payment towards royalty."
In our view, the aforesaid judicial pronouncement clearly supports the proposition advanced by the assessee in the present case. In fact, in so far as the factual aspect is concerned, the Assessing Officer has clearly stated that the copyright of software vests only with the CGI Group and therefore, even from that standpoint, there can be no divergence from the assessee's point that what has been transacted in the license agreement is only the grant of user right in the copyrighted software and not the use of copyright itself. Therefore, having regard to the fact-position and the judgment of the Hon'ble Delhi High Court, wherein the decision of the Special Bench in the case of Motorola Inc. (supra) has since been approved, the view of the assessee has to be upheld.
12. Before parting, we may refer to the decisions relied upon by the learned CIT-Departmental Representative before us, namely, the decision of Authority in the case of IMT Labs (India) P Ltd (supra) and also of the Hon'ble Karnataka High Court in the case of CIT v. Samson Electronics Co. Ltd 320 ITR 209 (Kar). The Hon'ble Karnataka High Court was dealing with a case of requirement to deduct tax at source under section 195(1) on amounts paid to foreign software supplier. As per Hon'ble High 8 ITA No.87/PN/2013 ITA No.337/PN/2013 Allianz SE Court, consideration received for granting of right to use software under certain circumstances could be regarded as 'royalty'. The two contrary view, namely, that the Hon'ble Delhi High Court on one hand and that of the Hon'ble Karnataka High Court were before the Mumbai Bench of the Tribunal in the case of M/s Solid Works Corporation in ITA No 3219/MUM/2010, order dated 08.01.2012. The Tribunal after making following discussion applied the view expressed by the Hon'ble Delhi High Court in the case of Ericsson A.B., New Delhi (supra), which was favourable to the assessee:-
"8. On the argument of the ld DR that where two views are available on an issue one favourable to the assessee should be preferred, should not be applied to non- resident assessees, we are of the view the same cannot be accepted in view of Article 24 of the DTAA between India and USA which provides for non-discrimination. Article 24(1) lays down that Nationals of a contracting State shall not be subjected in other contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of article 1, also apply to persons who are not residents of one or both of the Contracting States. Therefore where two views are available on an issue one favourable to the assessee and the one against the assessee, the view which is favourable to the assessee and does not support levy of tax on the assessee should be preferred, should be applied to non-resident assessee in this case."
Accordingly, the consideration received by the assessee in that case allowing the use of the software was not considered as a royalty and instead, it was held as business receipts in the hands of the assessee. Therefore, in the present case also we find ample force to adopt a similar approach and, therefore, we hold that the assessee is justified in canvassing that the license charges earned by it was not liable to be treated as royalty following the judgement of the Hon'ble Delhi High Court. Accordingly, the appeal of the assessee has to succeed.
13. In the result, the appeal of the assessee is allowed."
9. We find the Tribunal while deciding the issue has also considered the decision of the Hon'ble Karnataka High Court in the case of Samsung Electronics Co. Ltd., (Supra) and a number of other decisions. Considering the totality of the facts of the case and respectfully following the decision of the Coordinate Bench of the Tribunal in assessee's own case for assessment year 2005-06 which is the basis for reopening the assessment for the impugned assessment year, we hold that the license charges earned by the assessee is not liable to be treated as Royalty. Accordingly the grounds raised by the assessee are allowed.
ITA No. 158/PN/2011 (Assessment Year 2007-08) :10. Grounds raised by the assessee are as under :
Ground of appeal No. 1 :
"That the Hon'ble DRP and consequentially the learned Assessing Officer has erred in law and facts on license charges received under software license agreement granting user right in software as 'royalty' under the Act and under the India-Germany tax treaty for avoidance of double taxation ("tax treaty"), thereby assessing the taxable income of 9 ITA No.87/PN/2013 ITA No.337/PN/2013 Allianz SE the Appellant for A.Y. 2007-08 at Rs. 11,677,640/- instead of the returned income of Rs. 37,661,320/-.
Ground of appeal No. 2 :
"2.1 That the Hon'ble DRP and consequentially the learned Assessing Officer has erred in law and facts regarding the consideration received from Bajaj Allianz Life Insurance Company Ltd. ("BA Life") amounting to Rs. 25,983,682 for provision of user rights of software 'OPUS' to be 'Royalty' as defined in Explanation 2 to section 9(1)(vi) of the Act and therefore liable to tax in India".
"2.2 That the Hon'ble DRP and consequentially the learned Assessing Officer has erred in law and facts in holding the consideration received by the Appellant for provision of user rights of software "OPUS" to BA Life to be 'Royalty' under Article 12 of the tax treaty and levying tax @ 10% on the same.
2.3 That the Hon'ble DRP and consequentially the learned Assessing Officer has erred in law and facts in not appreciating that the Appellant had provided to BA Life the user rights in the copyrighted article (Viz OPUS) and not right to use the copyright of OPUS and thus cannot be regarded as 'royalty' under the provisions of the Act and DTAA."
11. After hearing both the sides, we find the grounds raised by the assessee in the impugned appeal are identical to grounds of appeal in ITA No. 157/PN/2011 for Assessment Year 2004-05. We have already decided the issue and the grounds raised by the assessee have been allowed. Following the same ratio, the grounds raised by the assessee in the above appeal are allowed."
6. The Tribunal had allowed the claim of the assessee in assessment years 2004-05, 2005-06 and 2007-08. However, the Department has filed appeals before the Hon'ble Bombay High Court which have been admitted in respect of the aforesaid assessment years and the following substantial question of law has been framed.
a. "Whether in the facts and circumstances of the case the Tribunal was correct in holding that the license fees received by the assessee for transfer of user rights of software "OPUS" to the Indian Companies did not fall within the meaning of "royalty" as defined in Explanation 2 to Section 9(1)(vi) of the Income Tax Act, 1961 and under Article12 of the double Taxation Avoidance Agreement between India and Germany (DTAA)?"
7. The appeals in ITA(L) No.1362 of 2012 relating to assessment year 2005-06, ITA(L) No.1881 of 2012 relating to assessment year 2004-05 and ITA(L) No.1880 of 2012 relating to assessment year 2007- 08 are pending for disposal before the Hon'ble Bombay High Court.
10 ITA No.87/PN/2013 ITA No.337/PN/2013Allianz SE
8. The assessee before us has made applications under section 158A(1) of the Act for both the captioned assessment years i.e. 2008- 09 and 2009-10 pointing out that identical question of law has been framed by the Hon'ble Bombay High Court and the final decision on the said question of law be applied. In view thereof, the assessee claimed that it would not raise any such question of law before the Bombay Hon'ble High Court under section 260A of the Act and / or Hon'ble Supreme Court of India,. The applications moved by the assessee under Form No.8 are available on record, which in turn, were forwarded to the Assessing Officer who has submitted report dated 22.12.2014. The Assessing Officer on verification of record, has reported that the question of law mentioned in (a) is involved in the appeals filed by the Department before the Hon'ble Bombay High Court for the assessment years 2005-06, 2004-05 and 2007-08, which is pending for decision. The Assessing Officer further reports that the assessee's claim is correct, however, another question of law has been admitted for assessment year 2005-06 only, which does not arise in the appeals pending before the Tribunal.
9. The issue raised by the assessee vide grounds of appeal Nos.1 to 3 are thus, decided in favour of the assessee following the decision of the Tribunal in assessee's own case vide separate orders dated 14.03.2012, 25.06.2012 and 25.06.2012 relating to assessment years 2005-06, 2004-05 and 2007-08, respectively, since there is no change in the facts and circumstances of the case. However, in view of the applications made by the assessee in prescribed Form No.8 in terms of section 158A(1) of the Act, the Assessing Officer is further directed to apply the decision of the Hon'ble Bombay High Court and / or Hon'ble Supreme Court of India on the said issues being decided in assessee's 11 ITA No.87/PN/2013 ITA No.337/PN/2013 Allianz SE own case, relating to assessment years 2005-06, 2004-05 and 2007-
08. The grounds of appeal Nos.1 to 3 are thus, allowed. In view thereof, the captioned appeals of the assessee are accordingly disposed of.
10. In the result, both the appeals of the assessee are allowed, subject to the aforesaid observations.
Order pronounced on this 20th day of February, 2015.
Sd/- Sd/-
(G.S. PANNU) (SUSHMA CHOWLA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Pune, Dated: 20 th February, 2015.
GCVSR
Copy of the order is forwarded to: -
1) The Assessee;
2) The Department;
3) The DRP, Pune;
4) The concerned CIT(A);
5) The CIT concerned;
6) The DR "B" Bench, I.T.A.T., Pune;
7) Guard File.
By Order
//True Copy//
Assistant Registrar
I.T.A.T., Pune