High Court Of Karnataka
CIT vs. Spice Telecom
Section 260A, 201(1A)
D. V. Shylendra Kumar & B. Manohar, JJ.
ITA No. 1273/2006
8th January, 2013
Counsel appeared
K. V. Aravind, Advocate for the Petitioner.:Chythanya K. K., Advocate for the Respondent
D.Y.SHYLENDRA KUMAR J.
1. This appeal under Section 260A of the Income Tax Act, 1961 by the Revenue has been admitted to examine the following substantial question of law: “Whether the Tribunal was correct in holding that the order passed under Section 201(1) and under Section 201(1A) of the Act is not liable in respect of payments made by the assessee towards liaison services provided as the same would not fall under royalty and since the double taxation avoidance agreement between India and Mauritius is silent on this issue and consequently the same is not taxable as per the provisions of ” Indian Income Tax Act.”
2. Mr. Chaitanya K.K., learned counsel for the respondent has raised a preliminary objection about the maintainability of this appeal in view of the Board Instructions No.3/2011 dated 9-2-2011 whereunder the appeal by the Department should be one involving a minimum tax effect of Rs 10,00,000/-. On the other hand, the tax effect or the actual liability has been assessed by the Assessing Officer in respect of the question that is sought to be examined by this court being only Rs.4,50,000/- as submitted by Mr. Chaitanya and Rs.6,22,000/- as determined by the Assessing Officer, is nevertheless less than Rs. 10,00,000/-. Hence, the appeal cannot be entertained.
3. On this preliminary objection, Mr. K. V. Aravind, learned Standing Counsel for the appellant-Revenue submits that this Court in the case of RANKA AND RANKA reported in 2012(73) Kar.L.J. 30 took a View that the Board Circular is applicable to the pending cases also and this has been followed by this court in several subsequent decisions including the judgment dated 03-08-2012 rendered in ITA No.750/2006 and ITA Nos.739-740/2006 in the case of CIT AND ANOTHER v/s’ GLOWTRONICS LTD. The Division Bench of this court sitting at Dharwad Circuit Bench in a judgment rendered on 03-10-2012 in ITA No.5049/2010 has taken a different view about the applicability of the Board Circular to the pending cases and by distinguishing the judgment of the Hon’ble Supreme Court in the case of COMMISSIONER OF COMMERCIAL TAXES, BANGALORE v/s MYSORE ELECTRICAL INDUSTRIES LIMITED reported in (2006)12 see 448 holding that the decision of the Hon’ble Supreme Court interpreting the Board Circular issued in the context of Central Excise Tariffs Act, 1985 and the Rules 1944 regarding classification of goods has no application to the present circular and ‘ the applicability of that circular to the classification of goods in pending disputes is not so applicable to the facts and circumstances of the case on hand. Mr. Aravind submits that the present case is also distinguishable. Further, it is also submitted that the judgment rendered in RANKA AND RANKA case by the Division Bench of this court has been made the subject matter of the appeal before the Hon’ble Supreme Court in SLP No.27468/2012 and in many appeals coming up before this court involving like questions, this court has disposed of the appeals. However reserving liberty to the revenue to revive the appeal in the event of success in their appeal against the judgment of this court rendered in RANKA AND RANKA case, this appeal may also be disposed of with like liberty reserved to the revenue to revive the appeal in the event of success of revenue in the appeal preferred by them against the judgment in RANKA AND RANKA case.
4. As we have noticed that a large number of appeals have been disposed of by this court on such premise, this appeal is also dismissed as not tenable, reserving liberty to the revenue to revive the appeal in the event of success in their appeal before the Hon’ble Supreme Court in the case of RANKA AND RANKA.
[Citation : 352 ITR 151]
