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2021 (6) TMI 328 - ITAT DELHITaxability of the receipt from the BBMB Project - AO has considered the entire receipts from the BBMB Project to be taxable @ 40% + surcharge - HELD THAT:- We find that in A.Y. 2006-07, AO had taxed the receipts from BBMB Projects in similar circumstances @ 40% but when the matter was carried before the CIT(A), CIT(A) directed the AO to tax the receipts from BBMB Project @ 10%. Before us, it is the submission of the Learned AR that the aforesaid order of CIT(A) has attained finality as the order of CIT(A) has not been challenged by the Revenue. The aforesaid contention of the Learned AR has not been controverted by the Revenue by placing any material on record. Thus in subsequent assessment years i.e. AY 2010-11, 2012-13, 2013-14 & 2014-15 the receipts from BBMB Project have been taxed by the Revenue @ 10% of the receipts. Before us, no distinguishing feature in the facts in the year under consideration and that of the earlier years and subsequent years has been pointed out by the Revenue nor has it placed any material to demonstrate the justification for taking a different view than in earlier and subsequent years. In such as situation in order to maintain the consistency, we hold that the receipts from BBMC Project to be taxed @ 10% of the receipt. We thus direct so. Taxation as royalty and fee for technical services @ 20% instead of 10% - HELD THAT:- As AR has pointed to the amendment made in Article 12(2) of the DTAA between India and Japan by Notification No S.O. 1136(E) dtd 19.7.2006 w.r.e.f 28.6.2006. As per the aforesaid amendment, the tax charged shall not exceed 10% of the gross amount of royalties or fees for technical services. Considering the submission of the Learned AR, we restore the issue to the file of the AO and direct him to compute the taxes on the aforesaid income in accordance with the applicable DTAA and in accordance with law. Needless to state that AO shall grant adequate opportunity of hearing to the assessee. Thus the ground of the assessee is allowed. Charging interest u/s 234-B - HELD THAT:- . It is an undisputed fact that assessee is a foreign company and it is the responsibility of payer to deduct entire tax at source on payments made to the Assessee. As n the case of GE Packaged Power Inc. [2015 (1) TMI 1168 - DELHI HIGH COURT] has held that when the assessee was a non resident company, the entire tax was to be deducted at source on the payments made by payee to the assessee and therefore there was no question of payment of advance tax by the assessee and therefore it would not be permissible for the revenue to charge any interest u/s 234B from the assessee. Before us, Revenue has not pointed to any contrary binding decision in its support nor has pointed to any distinguishing facts in the present case and the case relied upon by Ld AR but however it is the contention of the Ld DR that the aforesaid order of the Delhi High Court has been challenged by the Revenue. The contention of the Ld DR of having challenged the aforesaid order of H’ble Delhi High Court may be true but at the same time, the Revenue has not placed any material on record to demonstrate that the aforesaid order has been stayed by higher judicial forum. Thus we are of the view that AO was not justified in levying the interest u/s 234B. We therefore direct the deletion of interest. Thus ground of assessee is allowed.
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