TMI Blog2008 (7) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... eal was adjourned at the request of ld. DR to 22-1-2008. On 22nd January, vide letter dated 21-1-2008, the department again sought adjournment on the following grounds:- "As directed by the Hon'ble Bench at the time of last hearing, the matter regarding COD approval was referred to CIT. The matter of COD approval is likely to take some more time." And accordingly the appeal was adjourned to 1-4-2008 when none appeared on behalf of the assessee and appeal was finally adjourned to 19-2-2008. The ld. DR has produced before us copy of decision of Madras High Court in the case of CIT v. Combustion Engg. Inc., USA [2007] 295 ITR 70 in which it has been held that clearance from the Committee constituted pursuant to direction of Hon'ble Supreme Court is necessary only when there exists a dispute between Ministries of the Government of India or Ministries and Public Sector Undertakings. The assessee, a non-resident, could not be considered a Public Sector with reference to definition under section 2(36A). The requirements could not be extended to cases where a non-resident assessee was represented by a Public Sector Undertaking (PSU) as an agent to it. The appeal filed by the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by ld. AR that department has sought adjournment in the present case on the ground that COD approval matter has been referred to CIT and the same is likely to take sometime. However, taking shelter to the decision relied upon by the ld. DR, now it is pleaded that no approval from COD is required. He submitted that earlier department has been taking approval from COD even in cases when ONGC has represented a foreign corporate body and the matter that whether ONGC or department can contest the appeal where the ONGC is representing the foreign party, the COD has granted or rejected the application for approval. He contended that recently Delhi IT A T vide its order dated 6-6-2008 has dismissed the appeal filed by the revenue in [IT Appeal No. 2227 (Delhi) 2007] in the case of Asstt. CIT v. ONGC as representative of M/s. Computer Modelling Group Ltd., Canada in which COD had refused to grant approval for contesting the appeal. He contended that the facts in the case of Combustion Engg. Inc., USA, were different. He contended that in that case though it is not clear that where the tax liability was to be borne by the Public Sector Undertaking, but an inference can be drawn from Que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al placed before us. Petroskills LLC OGCI, USA (NRC) entered into seven agreements with the assessee to conduct different training programmes as listed in the assessment order. The programmes are as under:- -------------------------------------------------------------- 1. Basin Analysis Workshop - An Integrated Approach -------------------------------------------------------------- 2. High Resolution Well Log Sequences -------------------------------------------------------------- 3. Petroleum Habitat in Extension and Strike Slip Basins -------------------------------------------------------------- 4. Upthrust/Subthrust Fault Plane/Wedgeout Mapping Techniques with Special Reference to Structural Styles in Compressional and Taphrogenetic Regimes for Hydrocarbon Exploration -------------------------------------------------------------- 5. Seismic Data Interpretation and Seismic Siratigraphy -------------------------------------------------------------- 6. Geostatistics in Hydrocarbon Exploration -------------------------------------------------------------- 7. Modern Geochemical Tools for the Efficient Exploration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that order is reproduced below for the sake of convenience:- "This is an appeal by the revenue. It is directed against the order of CIT(A) dated 23-2-2007 for assessment year 2005-06. Grounds of appeal read as under:- 1. The ld. CIT(A)-I, Dehradun has erred in law and on facts in holding that the payments made to the NRC on account of supply of software cannot be taxed as royalty. 2. The order of CIT(A) be set aside and that of the Assessing Officer be restored. 2. At the time of hearing it was brought to our notice by the ld. AR that Department had sought approval of COD to contest the deletion made by the CIT(A) and the permission to contest the appeal has been declined by the order of COD dated 27-3-2008, a copy of which was placed on our record and was also given to ld. DR wherein the request of the revenue to contest the appeal against impugned order of the CIT(A) was declined with the following observations;- 'After hearing both parties, the Committee declined permission to CBDT to pursue the appeal before ITAT as it was of the view that there was no infirmity in the decision of the CIT(A) holding that the transaction between ONGC and the NRC involves purchase o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earance has not been given to the appellants, these proceedings cannot be proceeded with. The High Court was wrong in dealing with the merits of the matter. We, therefore, do not examine whether the High Court was right on merits. The appeal, accordingly, stands disposed of with no order as to costs.' 5. Therefore, we dismiss the Departmental appeal as the approval was not granted to the revenue by the COD. 6. In the result, the appeal is dismissed. 7. The order pronounced in the open Court on 6-6-2008." 9. Thus, it is clear from the above order that department has been obtaining approval from COD in other cases also where ONGC has been acting as an agent of other NRCs. The said appeal in the case of Computer Modelling Group Ltd. was filed in 2007 whereas the appeal in the present case was filed in 2006. It has not been mentioned by ld. DR that whether or not department has sought approval from COD in the present case. It has also not been made clear by the ld. DR that whether such approval, if any applied for, has been granted or rejected. Ld. DR only on the basis of above-mentioned decision of Hon'ble Madras High Court has raised the contention that COD approval is not re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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