DCIT CIR 3(3), v. SAS INSTITUTE P. LTD,

MA 752/MUM/2009 | 2002-2003
Pronouncement Date: 09-03-2010 | Result: Dismissed

Appeal Details

RSA Number 75219924 RSA 2009
Assessee PAN AAECS3149K
Bench Mumbai
Appeal Number MA 752/MUM/2009
Duration Of Justice 3 month(s) 27 day(s)
Appellant DCIT CIR 3(3),
Respondent SAS INSTITUTE P. LTD,
Appeal Type Miscellaneous Application
Pronouncement Date 09-03-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 09-03-2010
Assessment Year 2002-2003
Appeal Filed On 12-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE SHRI J.SUDHAKAR REDDY AM & SMT. P.MADHAVI DEVI JM M.A.NO.752/MUM/2009 - A.Y 2002-03 [ARISING OUT OF I.T.A.NO.2259/M/08] DY. COMMISSIONER OF I.T. 3(3) MUMBAI VS. SAS INSTITUTE (I) PVT. LTD. APPEJAY HOUSE 4 TH FLOOR DINSHAW WACHHA ROAD CHURCHGATE MUMBAI 400 020 PAN NO. AAECS 3149 K (APPLICANT) (RESPONDENT) REVENUE BY : MR. MOHD. USMAN. ASSESSEE BY : MR. R. MURALIDHAR. O R D E R PER P.MADHAVI DEVI JM: THIS IS MISCELLANEOUS APPLICATION FILED BY THE REV ENUE U/S.254[2] OF THE I.T.ACT SEEKING RECTIFICATION OF THE TRIBUN ALS ORDER DATED 29-5- 2009 PASSED IN I.T.A.NO.2259/M/08 FOR A.Y 2002-03. 2. THE CONTENTIONS OF THE REVENUE ARE AS UNDER- (2) DURING THE YEAR THE COMPANY HAS CHANGE THE METH OD OF ACCOUNTING FOR ROYALTY FOR CASH BASIS TO ACCRUAL BA SIS. THE ASSESSEE HAD DEBITED ROYALTY OF RS.1 24 86 710/- IN THE P & L ACCOUNT AS PRIOR PERIOD EXPENSES AND INCLUDED IN THE COST OF BOOKS S OLD AS PER SCHEDULE 9. THE ROYALTY WAS PAID TO M/S SAS INSTITU TE INC USA. IT WAS THE CASE OF THE ASSESSEE COMPANY THAT THE ROYAL TY PAYMENT WAS MADE TO ITS PARENT COMPANY AND TAX WAS DULY DEDUCTE D AT SOURCE. IN FACT THE EXPENSES OF RS.1 24 86 710/- PERTAINS TO E ARLIER YEARS AS PER THE NOTES ON ACCOUNTS WHICH SHOULD HAVE BEEN DISALL OWED IN THE ASSESSMENT YEAR UNDER CONSIDERATION. THE HONBLE I TAT HAVE OBSERVED IN PARA 7 OF THE ORDER THAT THE ASSESSMENT WAS FINALIZED EX- PARTE WITHOUT VERIFICATION OF THE FACTS AS TO THE R OYALTY PAYMENT INCLUDES PRIOR PERIOD EXPENSES. HOWEVER IT IS CLEA R FROM THE NOTES ON ACCOUNTS [PARA F] [COPY ENCLOSED] THAT THE EXPENSES OF RS.1 24 89 710/- PERTAINS TO EARLIER YEARS. (3) APPLICANT SUBMITS THAT ABOVE MATTER REQUIRES CO NSIDERATION OF THE BENCH IN THE LIGHT OF THE ABOVE SAID FACTS. ALT ERNATIVELY IT IS PRAYED THAT THE ISSUE MAY KINDLY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH CONSIDERATION OF THE ISSUE. (4) APPLICANT YEARNS TO SUBMIT THAT THE HONBLE BEN CH MAY BE PLEASED TO CONSIDER THIS REQUEST FOR RECONSIDERATIO N BY ADMITTING THE MISCELLANEOUS APPLICATION IN THE INTEREST OF EQUITY AND GOOD 2 CONSCIOUSNESS OTHERWISE APPLICANT MAY BE PUT TO SEV ERE AND IRREPARABLE LOSSES AND INJURY. 3. AT THE TIME OF HEARING WHILE THE LD.DR PLACED RE LIANCE UPON THE CONTENTIONS RAISED IN THE MISCELLANEOUS APPLICATION WHILE THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REVE NUE HAS ALREADY FILED AN APPEAL AGAINST THE ORDER OF THE TRIBUNAL I N THE HIGH COURT ON THE VERY SAME POINT AND THEREFORE THE MISCELLANEO US APPLICATION IS NOT MAINTENABLE. IN SUPPORT THEREOF HE PLACED RELI ANCE UPON THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN TH E CASE OF TATA COMMUNICATIONS LTD. [FORMERLY KNOW AS VIDESH SANCHA R NIGAM LTD.] VS. CIT 317 ITR 80 VSNL [SB]. 4. HAVING HEARD BOTH THE PARTIES WE FIND THAT IT I S NOT DISPUTED THAT THE REVENUE HAS FILED AN APPEAL BEFORE THE HIG H COURT ON THE VERY SAME ISSUE. IN SUCH A CASE AS HELD BY THE SPECIAL B ENCH OF THE TRIBUNAL IN THE CASE OF TATA COMMUNICATIONS LTD. [CITED SUPR A] WHERE THE QUESTION WAS PENDING BEFORE THE HIGH COURT IT WAS N OT RIGHT FOR THE APPLICANT TO AGITATE BEFORE THE TRIBUNAL. IN VIEW O F THE SAME THE MISCELLANEOUS APPLICATION IS DISMISSED. 5. IN THE RESULT REVENUES MISCELLANEOUS APPLICATI ON IS DISMISSED. ORDER PRONOUNCED ON THIS 9 TH DAY OF MARCH 2010. SD/- SD/- (J.SUDHAKAR REDDY) (P.MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 9 TH MARCH 2010. P/-*