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2023 (3) TMI 205 - AT - Income TaxExistence of fixed place Permanent Establishment (PE), installation PE, service PE, dependent agent PE and attribution of profit to the PE - assessee is a non-resident corporate entity incorporated in Peoples Republic of China and tax resident of that country - HELD THAT:- From the materials available on record, it is observed that while deciding the issue for the first time in assessment years 2005-06 to 2008-09, the Tribunal has considered all aspects relating to existence of PE as well as attribution of profit and upheld the decision of the departmental authorities. In subsequent assessment years, viz., assessment years 2009-10 to 2016-17, the assessee had advanced identical arguments as has been advanced in the present appeal. Though, the Tribunal took note of various submissions made by the assessee, however, adhering to the norms of judicial discipline the Tribunal had followed its earlier decision in assessee’s own case and decided the issues against the assessee. Before us, though, learned counsel appearing for the assessee has contended that various arguments advanced before the Tribunal in assessment years 2009-10 to 2016-17 were not considered, however, we are not convinced. A careful perusal of the observations of the Tribunal reproduced above would make it clear that the Tribunal after taking note of various submissions of the assessee took a conscious decision to follow its earlier decision. Therefore, the allegation of learned Senior Counsel that various submissions made by the assessee were not considered in assessment years 2009-10 to 2016-17 is without any substance. The issues have been consistently decided against the assessee by the Tribunal beginning from assessment year 2005-06 to 2016-17. There is no difference in the factual position permeating through different assessment years, including, the impugned assessment year. It is relevant to observe, before us, learned counsel appearing for the assessee has submitted that against the decision of the Tribunal for assessment years 2005-06 to 2008-09, the assessee has preferred appeals before the Hon’ble High Court and the appeals have been admitted. Thus, when there are decisions of the Coordinate Bench in assessee’s own case on identical set of facts and circumstances upholding the decision of the Revenue Authorities with regard to existence of PE and attribution of profit, as a Bench of equal strength, we are bound by such decisions. Therefore, norms of judicial discipline, decorum and propriety demand that we have to follow the earlier decisions of the Tribunal. In fact, for this very reason, while deciding the appeals for assessment years 2009-10 to 2016-17, the Tribunal had followed its earlier decision. In view of the aforesaid, following the consistent view of the Tribunal in assessee’s own case in past assessment years, we uphold the decision of the Departmental authorities on these issues. Accordingly, these grounds are dismissed. Addition towards royalty on sale of software - software component was treated as royalty and brought to tax on gross basis by applying the rate of 10% as per the treaty provisions - HELD THAT:- Having considered rival submissions, we find, the Tribunal while deciding the issue in assessment years 2005-06 to 2008-09 [2014 (4) TMI 770 - ITAT DELHI] has deleted the addition by holding that the receipts are not in the nature of royalty. Thus respectfully following the decision of in assessee’s won case, we delete the addition. Ground no. 7 is allowed.
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