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2018 (3) TMI 2036 - ITAT MUMBAIRoyalty income - principle of mutuality - taxability of ISM contributions received by the assessee - appellant before us is a foreign company, which is a tax resident of U.S.A. - as asserted that there was a complete identity between the contributors to the MHR Fund and the participants in the surplus, i.e. excess of amounts received in the fund over the expenditure incurred for undertaking the ISM activities and ISM contributions, being reimbursement of expenses was not in the nature of income at all. HELD THAT:- The action of the CIT(A) in directing the Assessing Officer to apply the order of the Tribunal [2015 (1) TMI 659 - ITAT MUMBAI] is justified to the extent it deals with the nature of the payments received by the assessee from the two hotels stated aforesaid. So, however, the point which is sought to be raised is the non-consideration of the defence set-up by the assessee based on the principles of mutuality. The order of the Tribunal (supra) has not addressed that issue and so far as the instant year is concerned, the same was very much raised by the assessee before the lower authorities, which has also remained to be addressed. Considering the entirety of circumstances, we, therefore, deem it fit and proper to affirm the ultimate decision of the CIT(A) to remand the matter back to the file of Assessing Officer, but with directions that apart from considering the order of the Tribunal the Assessing Officer shall also address the issue raised by the assessee of mutuality or any other issue which the assessee may seek to raise in defence of its return of income. AO shall allow the assessee due opportunity of being heard and only thereafter pass an order afresh, as per law.
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