High Court Of Delhi
Director Of Income Tax vs. Degussa A.G. Germany
Section 9, 260A
Asst. Year 1994-95
B.C. Patel, C.J. & Badar Durrez Ahmed, J.
IT Appeal No. 155 of 2002
8th January, 2004
Counsel Appeared :
Sanjiv Khanna with Subhash C. Sharma, for the Petitioner : V.P. Gupta, for the Respondent
JUDGMENT
By the court :
This appeal is in respect of asst. yr. 1994-95. The CIT(A) as well as Tribunal, Delhi, Bench “B”, New Delhi, held against the Revenue and in favour of the assessee. The Revenue has preferred this appeal which pertains to the 3rd instalment of lumpsum payment for technical services received by the assessee, a German company. The AO had treated this payment as royalty and subject to tax. The CIT(A) and Tribunal reversed this and held the same not to be royalty but business income and the same was exempt as the assessee had no permanent establishment in India.
As regards the earlier two instalments, the CIT(A) had accepted the version of the assessee. The said decision was challenged before the Tribunal by preferring an appeal No. 708/Del/1993 for the asst. yr. 1990-91. Examining the matter, the Tribunal held that the payment cannot be considered to be royalty but business income and dismissed the appeal of the Revenue by an order dt. 29th Oct., 1999, for the asst. yr. 1990-91. The Revenue had not preferred any appeal against that order till the appeal in respect of the asst. yr. 1994-95 was decided by Tribunal on 17th Sept., 2002. Thus, for a pretty long period, the decision was accepted by Revenue. Consistency is required to be maintained by the Revenue. The CIT(A), in the present case has merely followed the earlier order in respect of asst. yr. 1990-91. The same has been done by the Tribunal.
It is argued by learned counsel for the Revenue that the order made in the earlier case for the year 1991 was not received by the Revenue and, therefore, appeal could not be preferred. It may be noted that the Revenue was aware of the order made by the Tribunal for the asst. yr. 1990-91 and the same was recorded not only by the Tribunal but by the CIT(A) also. Therefore, it is too late to say that Revenue could not challenge that order as it was not aware of the same.
In view of the circumstances, it cannot be said that the Tribunal has committed a serious error while deciding the appeal. Therefore, we find no reason to interfere with the order made by the Tribunal.
The appeal is dismissed.
[Citation : 270 ITR 301]
