Intelsat Corporation, New Delhi v. ADIT, New Delhi

ITA 5393/DEL/2011 | 2008-2009
Pronouncement Date: 02-02-2012 | Result: Allowed

Appeal Details

RSA Number 539320114 RSA 2011
Assessee PAN AADCP6533D
Bench Delhi
Appeal Number ITA 5393/DEL/2011
Duration Of Justice 2 month(s) 1 day(s)
Appellant Intelsat Corporation, New Delhi
Respondent ADIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 02-02-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 02-02-2012
Date Of Final Hearing 02-02-2012
Next Hearing Date 02-02-2012
Assessment Year 2008-2009
Appeal Filed On 01-12-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH C BENCH C BENCH C BENCH C : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL D.AGRAWAL D.AGRAWAL D.AGRAWAL VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.5393/DEL/2011 5393/DEL/2011 5393/DEL/2011 5393/DEL/2011 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 M/S INTELSAT CORPORATION M/S INTELSAT CORPORATION M/S INTELSAT CORPORATION M/S INTELSAT CORPORATION C/O PRICEWATERHOUSECOOPERS C/O PRICEWATERHOUSECOOPERS C/O PRICEWATERHOUSECOOPERS C/O PRICEWATERHOUSECOOPERS (P) LTD. (P) LTD. (P) LTD. (P) LTD. SUCHETA BHAWAN GATE NO.2 SUCHETA BHAWAN GATE NO.2 SUCHETA BHAWAN GATE NO.2 SUCHETA BHAWAN GATE NO.2 1 11 1 ST STST ST FLOOR FLOOR FLOOR FLOOR 11A VISHNU DIGAMBAR MARG 11A VISHNU DIGAMBAR MARG 11A VISHNU DIGAMBAR MARG 11A VISHNU DIGAMBAR MARG NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 002. 110 002. 110 002. 110 002. PAN : AADCP6533D. PAN : AADCP6533D. PAN : AADCP6533D. PAN : AADCP6533D. VS. VS. VS. VS. ASSISTANT DIRECTOR OF INCOME TAX ASSISTANT DIRECTOR OF INCOME TAX ASSISTANT DIRECTOR OF INCOME TAX ASSISTANT DIRECTOR OF INCOME TAX CIRCLE CIRCLE CIRCLE CIRCLE- -- -1(2) 1(2) 1(2) 1(2) INTERNATIONAL TAXATION INTERNATIONAL TAXATION INTERNATIONAL TAXATION INTERNATIONAL TAXATION NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PAWAN KUMAR AND SHRI ARVIND RAJAN ARS. RESPONDENT BY : APPLICATION FOR ADJOURNMENT BY CIT-DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL D.AGRAWAL D.AGRAWAL D.AGRAWAL VP VPVP VP : : : : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED DISPUTE RESOLUTION PANEL-1 NEW DELHI DATED 23 RD SEPTEMBER 2011. 2. THE LEARNED CIT-DR VIDE APPLICATION DATED 31 ST JANUARY 2012 HAS REQUESTED FOR ADJOURNMENT OF THE APPEAL. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ISSUE INVOLVED IN THIS APPEAL IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2006-07 AND ITA-5393/DEL/2011 2 2007-08 AND ALSO OF HONBLE HIGH COURT FOR AY 2007- 08. IN SUPPORT OF HIS SUBMISSION HE HAS FILED COPIES OF THE ORDERS O F THE TRIBUNAL IN ITA NO.4662/DEL/2011 FOR AY 2006-07 AND IN ITA NO.5443/ DEL/2010 FOR AY 2007-08 AND OF HONBLE HIGH COURT FOR AY 2007-08 IN THE FORM OF A PAPER BOOK. 4. WE HAVE HEARD THE SUBMISSIONS OF THE LEARNED COU NSEL FOR THE ASSESSEE AND PERUSED THE MATERIAL PLACED BEFORE US. IN VIEW OF THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ISSUE INVOLVED IS COVERED IN FAVOUR OF THE ASSESSEE BY TH E EARLIER DECISIONS OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2006-07 AND 2007-08 AND ALSO THE DECISION OF HONBLE JURISDICTIONAL HIGH CO URT FOR AY 2007-08 WE HAVE REJECTED THE APPLICATION OF THE LEARNED CIT -DR REQUESTING FOR ADJOURNMENT AND PROCEEDED TO DECIDE THE APPEAL OF T HE ASSESSEE EX- PARTE QUA THE DEPARTMENT. 5. WE FIND THAT THE ISSUE INVOLVED IN THIS APPEAL I S COVERED BY THE AFOREMENTIONED DECISIONS OF THE TRIBUNAL. THE TRIB UNAL VIDE ITS ORDER DATED 4 TH MARCH 2011 IN ITA NO.5443/DEL/2010 FOR AY 2007-08 HAS HELD IN PARAGRAPH 4 AS UNDER:- 4. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. WE HAVE ALREADY MENTIO NED THAT THERE IS A DISTINGUISHABLE FEATURE NAMELY THAT THE ASSESSEE HAS RECEIVED PAYMENTS FROM PERSONS RESIDEN TS IN INDIA. HOWEVER THE RECEIPTS HAVE BEEN TAXED U/S 9 (1)(VII) EXPLANATION 2 CLAUSE (VI) THEREUNDER. THE DECISIO N IN THE CASE OF ASIA SATELLITE TELECOMMUNICATIONS COMPANY LIMITED IS TO THE CONTRARY AND IN FAVOUR OF THE ASS ESSEE. IT IS ALSO A MATTER OF FACT ON RECORD THAT THE ASSESSE E IS A TAX RESIDENT OF USA AND THEREFORE THE PROVISIONS CONT AINED IN THE DTAA ARE APPLICABLE. HOWEVER WE ARE OF THE VI EW THAT WE NEED NOT GO INTO THE PROVISIONS OF THE DTAA BECA USE OF THE PROVISION CONTAINED IN SECTION 90(2) OF THE ACT . THIS PROVISION PROVIDES THAT WHERE THE CENTRAL GOVERNMEN T HAS ENTERED INTO AN AGREEMENT WITH THE GOVERNMENT OF AN Y ITA-5393/DEL/2011 3 COUNTRY OUTSIDE INDIA UNDER SUB-SECTION (1) FOR GRA NTING RELIEF OF TAX OR AS THE CASE MAY BE AVOIDANCE OF DOUBLE TAXATION THEN IN RELATION TO THE ASSESSEE TO WHOM SUCH AGREEMENT APPLIES THE PROVISIONS OF THIS ACT SHALL APPLIED TO THE EXTENT THEY ARE MORE BENEFICIAL TO THAT ASSE SSEE. THE ASSESSEE IS FOUND TO HAVE INCURRED NO LIABILITY TO TAX UNDER THE ACT. THEREFORE EVEN IF THE PROVISIONS O F THE TREATY GO AGAINST THE ASSESSEE IT HAS TO BE GRANTE D THE BENEFIT OF THE ACT UNDER WHICH NO LIABILITY TO TAX CAN BE FASTENED ON THE ASSESSEE. ACCORDINGLY GROUND NOS. 1 TO 5 ARE ALLOWED. 6. THE ABOVE ORDER OF THE TRIBUNAL DATED 4 TH MARCH 2011 HAS BEEN FOLLOWED BY THE TRIBUNAL IN ITS ORDER DATED 16 TH JANUARY 2012 IN ITA NO.4662/DEL/2011 FOR AY 2006-07. THE LEARNED COUNS EL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE SAID ORDER OF T HE TRIBUNAL DATED 4 TH MARCH 2011 WAS ALSO THE SUBJECT-MATTER OF APPEAL B Y THE DEPARTMENT BEFORE HONBLE DELHI HIGH COURT. HONBLE DELHI HIG H COURT VIDE ITS ORDER DATED 19 TH AUGUST 2011 IN ITA NO.977/2011 HAS DISMISSED THE APPEAL FILED BY THE DEPARTMENT AND CONFIRMED THE OR DER OF THE TRIBUNAL. COPY OF THE SAID ORDER OF HONBLE DELHI HIGH COURT HAS ALSO BEEN PLACED IN THE PAPER BOOK FILED BY THE ASSESSEE . THEIR LORDSHIPS OF DELHI HIGH COURT HAVE DECIDED THE SAID ISSUE BY HOLDING AS UNDER:- LEARNED COUNSEL FOR THE REVENUE COULD NOT DISPUTE THE POSITION THAT ISSUES RAISED IN THIS APPEAL ARE DIRE CTLY COVERED BY THE JUDGMENT OF THIS COURT IN THE CASE O F ASIA SATELLITE TELECOMMUNICATIONS LTD. VS. COMMISSIONER OF INCOME TAX (ITA 131/2003 DECIDED ON 31.01.2011). I N THAT JUDGMENT A CATEGORICAL VIEW IS TAKEN THAT THE INCO ME RECEIVED FROM THE ACTIVITIES UNDERTAKEN BY THE RESPONDENT/ASSESSEE WOULD NOT BE EXIGIBLE TO TAX IN INDIA. FOLLOWING THAT JUDGMENT THIS APPEAL IS DISMISSED. 7. RESPECTFULLY FOLLOWING THE AFORESAID JUDGMENT OF HONBLE DELHI HIGH COURT AND THE DECISIONS OF THE TRIBUNAL FOR AY 2006-07 & 2007-08 CITED SUPRA WE REVERSE THE DIRECTIONS UNDER SECTIO N 144C(5) OF THE IT ITA-5393/DEL/2011 4 ACT 1961 PASSED BY THE DISPUTE RESOLUTION PANEL AN D ALLOW THE APPEAL OF THE ASSESSEE. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON CONCLUSION OF HEARING ON 2 ND FEBRUARY 2012. SD/- SD/- ( (( (A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN) )) ) (G. (G. (G. (G.D.AGRAWAL) D.AGRAWAL) D.AGRAWAL) D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 02.02.2012 VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT ASSISTANT REGISTRAR