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2014 (4) TMI 273 - AT - Income TaxAdmission of additional evidence – Reduction in quantum of revenue - Exclusion of sales from revenue – Held that:- When the AO was not satisfied with the assessee’s estimate, he should have allowed at least one more opportunity to the assessee intimating it that if it does not furnish the details, then the sale should be estimated at US$ 40 Million - there was no such argument raised either before the AO or before the CIT(A) - Before the AO, the assessee stated that the sales may be taken at Euro 27 Million on estimated basis - The AO did not accept the same and estimated the sales at US$ 40 Million - Before the CIT(A), the assessee itself furnished the complete details of the sales amounting to Euro 27,307,776 and the same was accepted by the CIT(A) – thus, the ground claimed by the assessee is neither arising from the order of the AO nor from the order of the CIT(A) - The sales have been accepted as per the details furnished by the assessee itself before the CIT(A) – thus, there was no merit in the ground – Decided against Assessee. Taxability of Income from sale of software – Article 7 of DTAA – Income taxed as Royalty – Whether the Income from the supply contract can be treated as 'Royalty' under section 9(1)(vi) of the Act - Held that:- The decision in assessee’s own case and in Director of Income-tax Versus Ericsson AB & Ericsson Radio System AB & Metapath Software International Ltd. [2011 (12) TMI 91 - Delhi High Court] followed – the payment made to the assessee was not in the nature of royalty either under the Income-Tax Act or under the DTAA – Decided against Revenue. Leviability of Interest u/s 234B of the Act – Consideration subject to TDS u/s 195 of the Act –Held that:- The decision in DIT-I, International Taxation Vs. Alcatel Lucent USA, Inc. and another [2013 (11) TMI 734 - DELHI HIGH COURT] followed - Even though there may not be any positive or direct evidence to show that the assessee did make a representation to its Indian telecom dealers not to deduct tax from the remittances, such a representation or informal communication of the request can be reasonably inferred or presumed - The Tribunal ought to have accorded due weightage to the strong possibility or probability of such a request having been made by the assessee to the Indian payers since otherwise the denial of its tax liability on its Indian income would have served little purpose for the assessee – Decided against Assessee.
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