Income Tax Appellate Tribunal - Mumbai
Daimler Chrysler Ag ( Now Known As ... vs Department Of Income Tax on 28 February, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH "L", MUMBAI
BEFORE SHRI R.S.SYAL (A.M) & SHRI N.V.VASUDEVAN(J.M)
ITA NO.6071/MUM/2010(A.Y. 2002-03)
ITA NO.6072/MUM/2010(A.Y. 2005-06)
ITA NO.6073/MUM/2010(A.Y.2000-01)
ITA NO.6074/MUM/2010(A.Y.1997-98)
The Asst. Director of Income M/s. Daimler Chrysler AG
Tax (IT) -1(2), (Now know as Daimler AG),
119, Scindia House, Ballard Pier, Vs. C/o. S R Batliboi & Co.
Mumbai 400 038 Chartered Accountants,
(Appellant) 18th Floor, Express Towers,
Nariman Point, Mumbai - 21.
PAN: AABCD 2354C
(Respondent)
Appellant by : Shri Narendra Kumar
Respondent by : Shri Rajan Vora
Date of hearing : 28/02/2012
Date of pronouncement : 07/03/2012
ORDER
PER BENCH, These are appeals filed by the revenue arising out of separate orders of CIT(A) 10, Mumbai relating to different assessment years. Since the issues involved in these appeals are identical they are disposed of by a common order for the sake of convenience.
ITA NO.6074/MUM/2010(A.Y. 1997-98):
2. This is an appeal by the revenue against the order dated 11/5/2010 of CIT(A) 10, Mumbai relating to assessment year 1997-98. The grounds of appeal raised by the assessee read as follows:
"1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in holding that in respect of sale of Completely Knocked Down(CKD) Units, provisions of Sec. 9(1)(i) are not applicable in the case of the assessee.2 ITA NO.6071/MUM/2010(A.Y. 2002-03)
ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98)
2. On the facts and circumstances of the case and in law, the ld. CIT(A) has erred in holding that M/s. Daimler Chrysler India Ltd. (DCIL) does not constitute a permanent establishment of the assessee under Article 5(2) of the DTAA between India and Germany with regard to sale of completely Knowcked Down (CKD) Units, especially in the light of Clauses 1,5, & 6 of General Agency Agreement entered into between the assessee and DCIL."
3. The brief facts are that the assessee M/s. Daimler AG (formerly known as Daimler Chrysler AG) is a company incorporated under the laws of Germany and is a tax resident of Germany. The assessee is one of the major players in the automotive industry worldwide. The assessee filed its return of income on 28/11/1997 offering to tax an income of Rs. 2,15,285/-. This included royalty income earned from Bajaj Tempo Limited (BTL). The same was offered to tax on a gross basis at 30% under section 115A of the IT Act. In 1994, the assessee entered into a joint venture with TELCO and set up Mercedes-Benz India Private Limited (MBIL) (formerly known as Daimler Chryser India Private Limited) for the manufacture/ assembly and sale of cars in India. At the time of formation of the joint venture, the assessee held 51% of the shareholding in MBIL and the balance 49% stake was held by TELCO. The assessee made direct sales of completely built up (CBU) cars the value of Rs.46,650,895/- to the customers in India, for which MBIL rendered certain assistance services. The assessee claimed to have no office or place of business in India and hence, in the absence of a PE in India, sale of CBU cars of Rs.46,650,895/- directly to customers in India was not offered to tax in the above return.
4. The AO passed the assessment order dated March 28, 2005 under section 143(3) of the Act holding that he assessee is in the business of manufacture and sale of automobiles and that it has also been selling its CBU vehicles through MBIL, and the assessee has conferred upon MBIL exclusive distribution rights for all vehicles in CBU version as per the General Agency Agreement.
3 ITA NO.6071/MUM/2010(A.Y. 2002-03)ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) The MBIL is an office or branch or place of management of the assessee and thus, constitutes a PE for the assessee under Article 5(2)(b) and 5(2)(a) of the Treaty.
5. On appeal by the assessee the CIT(A) following the order of the Tribunal in ITA No.9211/M/04 for A.Y 2001-02 held that the assessee has no business connection in India under section 9 of the Income Tax Act 1961(the Act) in respect of sale CBU Car to Indian customers and the income from sale of CBU cars will not be taxable in India under the Act. The CIT(A) further held that the assessee does not have a PE in India under Article 5(1) and 5(2) of the India Germany DTAA and that MBIL does not constitute a PE of the assessee in India under Article 5(2)(a)(b)(c) and (g) of the India - Germany DTAA. Aggrieved by the order of the CIT(A) the revenue has preferred the present appeal before the Tribunal.
6. At the outset we have to make it clear that the grounds of appeal referred to the income from sale of Completely Knocked Down(CKD) Units. However, a perusal of the order of the AO shows that the income assessed in the present assessment year was in relation to sales of Completely Built Up(CBU) Cars. Nevertheless even in respect of sale of CBU Cars the Tribunal had examined the issue in assesss's own case in A.Y 2001-02. Both the parties agreed that the issue raised by the revenue in this appeal have already been considered and decided by the Tribunal in A.Y 2001-02. On the issue of accrual of income on sale of CBU Cars in India the Tribunal in assessment year 2001-02 in ITA No.9211/M/04 held as follows:
11. After hearing both the sides, we find force in assessee's arguments.
The Assessee merely sells the raw materials / CKD units to DCIL. It is DCIL which carries out further activity of assembling the same and selling the finished cars. There are no further activities carried out by Appellant in India in India in this connection. This transaction ends with the Appellant selling the raw materials / CKD. No income from such sale 4 ITA NO.6071/MUM/2010(A.Y. 2002-03) ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) accrues or arises to the Assessee in India. In other words no part of such profits accrue from or can be attributed to any activities of the assessee or his agent in India. The Apex Court in the case of CIT Vs Hyundai Industries Ltd (29 1 ITR 482) has held that in the case of an agreement with a South Korean Company for fabrication and installation of Oil exploration platform, the PE attributable to installation and commissioning came into existence only after the supply of the equipment. Therefore, profits from supply of the platform did not accrue in India. Similarly in the case of Ishikawajima Harima Heavy Ind. Ltd v DIT (288 ITR 408), the Apex court held that profit will not accrue in India in respect of offshore supply of equipment. (The subsequent amendment to sec 9( 1)(i) will not affect the decision on profit arising from sale of equipment offshore.) Mere sale of raw materials/ components will not result in business connection and even if it does as per the terms and conditions of the contract between the Assessee and DCIL no income accrues to the Assessee on the basis of any activities carried out , on behalf of the Assessee in India. Therefore in our opinion DCIL does not constitute the Assessee's business connection in India and thus the Assessee's income from sale of raw material/ CKD units to DCIL would not be liable to tax in India under the provisions of the Act. We therefore, concur with the decision of the CIT(A) on this issue and dismiss the ground No.1(i) of the Revenue's appeal."
7. The above observation in the context of sale of raw materials/ CKD Units sale equally apply to sale of CBU Cars also. The finding of the CIT(A) is that on a perusal of the General Agency Agreement between the assessee and MBIL it was clear that delivery of goods took place outside India and the payment was also being made for purchase of goods outside India. Therefore, there was no business activity carried out by the assessee regarding sale of CBU Cars directly to the customers in India. Thus the assessee does not have a business connection and that MBIL does not constitute a business connection with the assessee in India under section 9 of the Act, therefore, income in respect of sale of CBU Cars are not taxable in India.
8. We agree with the order of the CIT(A) on this aspect. On the issue whether MBIL constitute a PE of the assessee in India within the meaning of 5 ITA NO.6071/MUM/2010(A.Y. 2002-03) ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) Article-5 (2) of the India - Germany DTAA the Tribunal in A.Y 2001-02 the CIT(A)held as follows:
"30.Now the activity of DCIL are twofold. (1) manufacture of cars using CKD packs and other components. (2) Act as communication exchange in respect of direct sale of CBUs by the Assessee directly to the clients in India. Eventhough the commission received by DCIL for helping the sale CBUs it is obvious that their main activity is that. of manufacture of cars. Acting as communication conduit is not their main business. Further the dept has not established that DCIL actively canvasses orders for CBUs of Assessee or is actively engaged in negotiating and concluding contracts. If and when clients approach DClL or their agents evidencing to buy CBUs from the Appellant DCIL passes on communication both sides. Negotiations of price, specifications etc were concluded by the Appellant. The sale to the customer was on principle to principle basis. The risk of diminishing in value or damages to the cars is to the account of customer's right from the port of shipment at the manufacturing end. The cars were cleared through customs in India for and on behalf of the ultimate customers. Thus, DClL had no role to play from the sale or in any activity in promoting the sale to the Assessee directly to the customers in India. They are only collection of information and activities of preparatory or auxiliary in nature. The prices offered to the clients are as per the list price notified by the Assessee. DCIL has no authority t :onc1ude any deal. Thus the mere acting as post office between the Assessee and the client will not render DCIL as a dependent agent. DCIL cannot be considered as habitually procuring orders for the Assessee. In fact DCIL themselves are manufacturing and selling the cars aid procurement of orders for direct shipment of cars by the assessee would in fact he contrary to and against the interest of the DCIL in its manufacturing activity. DCIL by passing on communication from Assessee to the client and vice versa, are merely rendering a very insignificant auxiliary/ preparatory service in the sale of CBUs by the Assessee to Indian clients. Therefore DCIL does not constitute a dependent agent of the Assessee. The prices offered to the Indian clients arc as per list price notified and so whether DCIL is involved or not the price charged to the customer would be the same. No profits can be attributed to the services of DCTL in India. In fact by engaging the services of DClL, the profit of the Assessee is reduced to the extent of he commission paid to DCIL.
3 1. The following decisions cited by the assessee can be extracted for this purpose.
"The decision of the Hon'ble supreme Court in case of DIT v. Morgan Stanley & Co Inc 292 ITR 416 (refer page 555, 556 & 565 6 ITA NO.6071/MUM/2010(A.Y. 2002-03) ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) of Paper Book Volume II), wherein the Hon'ble apex Court has observed that since the assessee did not conclude any contracts on behalf of Morgan Stanley & Co. Inc (MSCo), it did not have an agency PE in India. Similar view has also been taken by the Special Bench of Delhi Tribunal in case of Motorola Inc & Others v DIT (2005) 95 ITD 269 (refer page nos. 580, 589 & 591 of Paper Book Volume II) and the Authority for Advance Rulings in case of TVVM Ltd. v CIT (1999) 237 ITR 230 (Refer page 600 & 618 of Paper Book Volume II).
The Hon'ble Delhi Tribunal has in the case of Western Union Financial Services Inc (104 ITD 34) (Refer Pg 522 & 547 of Paper Book Volume II) observed that there is no evidence to show that the extent of their activities for the assessee, compared to oil their activities, is so large that it can be said that they are dependent on the assessee for their earnings or revenues. Accordingly, the agents are not economically dependent upon the assessee. Further, there is no authority with the agents to conclude contracts. The agents are merely performing their duties and not exercising any authority. Based on the above, the Hon'ble Tribunal concluded that there is no agency PE in India.
In case of KnoWerX Education (India) P Ltd (301 ITR 207) (Refer Pg 619 & 632 of Paper Book Volume II), the Authority for Advance rulings has observed that since the applicant does not conclude any contract on behalf of the foreign company, does not maintain stock of goods/merchandise belonging to the foreign company and also carries on a variety of activities besides promoting examinations of the foreign company, the applicant enjoys an independent status. Accordingly, the applicant cannot be deemed to be a PE of the foreign company in India.
Similarly, in case of Specialty Magazines P Ltd (274 ITR 310) (Refer Pg 633 & 644 of Paper Book Volume II), the AAR ruled that since 22% - 25% of the income of the applicant is derived from. other clients, it cannot be said that its activities are carried out wholly or almost wholly for the foreign company. Thus the applicant, being an independent agent is not covered by the definition of PE in article 5 of the DTAA"
32. From the above it can be seen that merely acting for a non resident principal wou1d not by itself render an agent to be considered as PE for the purpose of allocating profits taxable in the hands of the principal. There should be some definite activity of the PE to which profits can he attributed. Unless it is so established, merely calling a person as agent 7 ITA NO.6071/MUM/2010(A.Y. 2002-03) ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) acting on behalf of foreign non-resident would not by itself render him to be considered as an agency PE and pro tanto part of the profits of the non-resident is liable to be taxed in India. We find that the Revenue has not established that DCIL had carried out any activity to which any profit can he attributed. DCIL was merely carrying out the work of a post office transferring communication from one to another. Therefore, we are not. convinced that the department had established that the activity of DCIL, even if it is to be considered as PE has resulted in any profits to the Assessee and in view of the specific provisions of the Article 7 of the Double Taxation Avoidance Agreement between Indian and Germany no part of the profit of the non-resident. Assessee can be attributed to the activity with DCIL and hence is not taxable in India.
33. As we have held that no profit accruing to the Assessee on sale of CBU cars directly to Indian customers can be attributed to the activities of OCIL, we are not deciding upon the correctness or otherwise of the percentage of profits, estimated by the CIT(A), as attributable to the activities of PE in India. Hence Ground No.3 raised by the assessee is not decided as being infructuous."
9. As can be seen from the order of the Tribunal on identical facts, MBIL does not constitute PE of the assessee in India. Respectfully following the decision of the Tribunal referred to above we hold that income on sale of CBU Cars by the assessee in India does not give rise to a business connection in India and income on such sale is not taxable in India. We also hold that the MBIL does not constitute a PE of the assessee in India under Article 5(2) of the India- Germany DTAA. For the reasons given above both the grounds of appeal raised by the revenue are dismissed.
10. In the result, appeal by the revenue is dismissed.
ITA 6073/MUM/10 (A.Y 2000-01):
11. This is an appeal by the revenue against the order dated 14/5/2010 of CIT(A)-10, Mumbai relating to assessment year 2000-01. Ground No.1 & 2 raised by the revenue reads as under:-
8 ITA NO.6071/MUM/2010(A.Y. 2002-03)ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) "1. On the facts and in the circumstances of the case and in law, the ld.
CIT(A) has erred in holding that in respect of sale of Completely Knocked Down(CKD) Units, provisions of Sec. 9(1)(i) are not applicable in the case of the assessee.
2. On the facts and circumstances of the case and in law, the ld. CIT(A) has erred in holding that M/s. Daimler Chrysler India Ltd. (DCIL) does not constitute a permanent establishment of the assessee under Article 5(2) of the DTAA between India and Germany with regard to sale of completely Knowcked Down (CKD) Units, especially in the light of Clauses 1,5, & 6 of General Agency Agreement entered into between the assessee and DCIL."
12. Grounds of appeal raised by the revenue are identical to the grounds raised by the revenue in A.Y 1997-98, which we have already discussed while deciding ITA NO.6074/M/10. For the reasons stated therein these grounds of appeal are dismissed.
13. Ground No.3 raised by the revenue reads a follows:
"3. On the facts and circumstances of the case and in law, the ld. CIT(A) has erred in directing to delete the addition of EURO 1,00,000/- made on account of income in respect of rights of SAP system ignoring the facts that the actual addition is of EURO 30,000 only and EURO 70,000 has been offered on adhoc basis by the assessee itself."
14. Briefly the facts are that the assessee had been using the SAP-System application for recording its transactions pertaining to the AY 2000-01. However the assessee did not use this application anymore due to several up- dates. During the assessment proceedings the assessee contended before the AO that due to the change in the application it was not possible for the assessee to undertake an automatic research to verify whether it had provided DCIPL with license for the right to use any of their softwares for the subject A.Y. Given the above, the assessee undertook a manual research which required the assistance of several departments. Based on the manual research the assessee determined certain potential transactions on a very 9 ITA NO.6071/MUM/2010(A.Y. 2002-03) ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) conservative basis and submitted before the AO vide letter dated 17-12-2007 that the assessee was of the belief that some of these transactions amounting to approx EURO 70,000 might turn out relating to licenses granted in the course of further research or which may have been offered to tax in another A.Y. The assessee submitted to the A.O that such a manual research coupled with the fact that the information pertained to financial year 1999-2000 was tremendously time consuming and would require some more weeks given the practical difficulties. The AO however passed the assessment order dated 20-12-2007 and estimated the royalties/ FTS income in respect of rights for software to be an ad-hoc amount of EURO 1,00,000.
15. Before CIT(A) the assessee submitted that there is no basis for the estimate made by the AO. The assessee also submitted that the estimate made by it was very conservative and was on the higher side. The assessee also further submitted that after detailed research the assessee found that there was no payment by DCIPL in connection with right to use any software licenced by the assessee during the financial year relevant to A.Y 2001-02. The assessee also filed confirmation before the CIT(A) from DCIPL that they have not paid or credited any amount to the assessee in connection with right to use any software during financial year 1999-2000. The said confirmation is at page 57 of the assessee's paper book. The CIT(A) on consideration of the above submissions held as follows:
"6.2.1 I have examined the facts of the case and the documents produced before me. In my view estimation should not be undertaken arbitrarily or capriciously, but should be backed by legitimate materials/evidence.
6.2.2 In the present case, it is observed that there is no payment by DCIPL to the Appellant in respect to royalty/ FTS grant of use for any software. As there is no payment by DCIPL. I fail to conclude that there is any income which can be said to have accrued to the Appellant leave apart the question of estimating the income.10 ITA NO.6071/MUM/2010(A.Y. 2002-03)
ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) 6.2.3 The following case lows cited by the Appellant also supoort its stand:
- Seth Nathuram Munnalal Vs. Commissioner of Income-tax (1954)(025 ITR 0216)
- Dhakeshwari Cotton Mills Ltd v Commissioner of Income Tax (1954) (26 ITR 775)
- Raj Mohan Saha v Commissioner of Income Tax (1964) (52 ITR 231) (Ass) 6.2.4 Therefore, I hold that the addition of Euro 100,000 made by the AO is hereby directed to be deleted."
16. Aggrieved by the order of the CIT(A) revenue has raised Ground No.3 before the Tribunal.
17. We have heard the rival submissions. Admittedly confirmation filed by the assessee before the CIT(A) was not confronted to the AO. We are of the view that the AO should be afforded opportunity for examining the claim made by DCIPL before the CIT(A). We, therefore, set aside the order of the CIT(A) and remand the issue to the AO for fresh consideration in the light of the additional evidence filed before the CIT(A) by the assessee. We also make it clear that the assessee would be at liberty to establish its case by such other evidence as may be necessary. The AO will afford opportunity of being heard to the assessee and decide the issue afresh in accordance with law.
18. Ground No.4 raised by the revenue reads as follows:
"4. On the facts and circumstances of the case and in law whether the ld. CIT(A) was correct in holding that when duty is cast on the payer to pay tax at source, no interest u/s. 234B can be imposed on the payee assessee ignoring the fact that it is the liability of the payee to pay advance tax on the amount which had not been deducted at source under section 195 of the Income Tax Act, 1961."11 ITA NO.6071/MUM/2010(A.Y. 2002-03)
ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98)
19. It is not in dispute before us that identical issue was considered by the Tribunal in assessee's own case for A.Y 1997-98 in ITA No.3727/M/09 and this Tribunal held as follows:
"4. We have heard the parties. The Ld Counsel for the assessee submitted that now the issue stands covered in favour of the assessee by the decision of the 1-fonble High Court of Bombay in the case of DIT (IT) v/s. NGC Network Asia LLC, 222 TR 86 (Bom). In this case, it is not disputed that the assessee is a non-resident and payments made to the assessee company are subjected to TDS u/sec. 195(1) of the Act. This fact has not been controverted by the Revenue. In this case, merely because there is a failure on the part of the person who made payments to the assessee to deduct tax at source to which the provisions of Section 195(1) are attracted, to the extent of the Income/payments which are In the mischief of TDS provision no liability to pay advance tax Is put of the recipient. Once the Income is subjected to TDS provision, then that Is outside the provisions of the advance tax as per the mandate of Section 209 of the Act and this view has been fortified by the decision of the Hon'ble High court of Bombay in the case of NGC Network Asia LLC (supra). We do not find any reason to Interfere with the order of the CIT (A) as the principles laid down In the case of NGC Network Asia LLC (supra) squarely applicable to the facts of the case, We accordingly confirm the order of the CIT(A)."
Respectfully following the aforesaid decision of the Tribunal we uphold the order of the CIT(A).
20. In the result, the appeal by the revenue is partly allowed for statistical purposes.
ITA NO.6071/M/2010 (A.Y.2002-03):
21. This is an appeal by the revenue against the order dated 14/5/2010 of CIT(A) 10, Mumbai elating to A.Y 2002-03. In this appeal revenue has challenged the order of CIT(A) whereby the CIT(A) cancelled the order of the AO imposing penalty on the assessee under section 271(1)(c) of the Act. The penalty was imposed on the assessee for the addition made in the course of assessment proceedings whereby the AO treated income from sale of CBU Cars 12 ITA NO.6071/MUM/2010(A.Y. 2002-03) ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) by assessee in India as income chargeable to tax in India and that the assessee had a PE in India and, therefore, the said income is chargeable to tax in India.
22. On appeal by the assessee the CIT(A) found that the Tribunal had already confirmed order of the CIT(A) in ITA No.6718/M/06 dated 31/3/2010, whereby the addition made by the AO was deleted. In view of the above the CIT(A) cancelled the order of the AO imposing penalty on the assessee. Aggrieved by the order of the CIT(A) the revenue has preferred the present appeal before the Tribunal.
23. We have heard the rival submissions. In our view since the addition in respect of which penalty was imposed by the AO has already been deleted by the Tribunal by confirming the order of CIT(A) in the quantum appeal, the very basis of imposing penalty on the assessee no longer survives. Consequently, we are of the view that the CIT(A) was fully justified in canceling the order of the AO imposing penalty on the assessee under section 271(1)(c) of the Act. Consequently the appeal by the revenue is dismissed.
24. In the result, the appeal by the revenue is dismissed.
ITA 6072/M/2010(A.Y.2005-06):
25. This is an appeal by the revenue against the order dated 14/5/2010 of CIT(A) -10, Mumbai relating to A.Y 2005-06. The revenue has raised the following grounds in this appeal:
"1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in holding that in respect of sale of Completely Knocked Down(CKD) Units, provisions of Sec. 9(1)(i) are not applicable in the case of the assessee.
2. On the facts and circumstances of the case and in law, the ld. CIT(A) has erred in holding that M/s. Daimler Chrysler India Ltd. (DCIL) does not constitute a permanent establishment of the assessee under Article 5(2) of the DTAA between India and Germany with regard to sale of completely Knocked Down (CKD) Units, especially in the light of Clauses 13 ITA NO.6071/MUM/2010(A.Y. 2002-03) ITA NO.6072/MUM/2010(A.Y. 2005-06) ITA NO.6073/MUM/2010(A.Y.2000-01) ITA NO.6074/MUM/2010(A.Y.1997-98) 1,5, & 6 of General Agency Agreement entered into between the assessee and DCIL."
3. On the facts and circumstances of the case and in law whether the ld. CIT(A) was correct in holding that when duty is cast on the payer to pay tax at source, no interest u/s. 234B can be imposed on the payee assessee ignoring the fact that it is the liability of the payee to pay advance tax on the amount which had not been deducted at source under section 195 of the Income Tax Act, 1961."
26. The above grounds are identical to Ground No.1,2 & 4 raised by the revenue in ITA No. 6073/M/2010 for assessment year 2000-01. For the reasons stated while deciding the appeal of the revenue for A.Y 2000-01, these grounds of appeal are dismissed.
27. In the result, the appeal of the revenue is dismissed.
27. In the result, ITA No.6074/M/2010, ITA No.6071/M/2010 & 6072/M/2010 are dismissed while ITA No.6073/M/2010 is partly allowed for statistical purposes.
Order pronounced in the open court on the 7th day of March 2012 Sd/- Sd/-
(R.S.SYAL) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated. 7th March, 2012