TMI Blog2016 (3) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... reement should not be considered for deciding the issue. The Intergovermental Agreement was source of all subsequent agreements and it was entered in to by two Sovereign Countries. It cannot be brushed aside. If all the agreements are considered jointly it becomes clear that the orders of his predecessors were in accordance with the provisions of law. Similarly, the argument of the FAA with regard to introduction of section 44BB is not at all convincing. International transactions are governed by the DTAA. s. and Inter-govermental Agreements. Considering the above discussion, we are of the opinion that the appeals filed by the assessee have to be allowed. Therefore, revising the orders of the FAA, we decide the effective grounds of appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Russia, which would be parties to the commercial contract for the construction of Nuclear Power-Station in India. In order to set up Nuclear Power Station and in terms of the co-operation to be provided by the Russian Organisation, the appellant has entered into following Contract: (a) Off shore Service Contract ( OSC dated December 17, 2001) (b) Contract dated August 23, 2002 'For Deputation of the Contractor's Specialist at Site'. In the orders passed, under section 195(2)of the Act, on 12-07-2006 the AO held that the provisions of section 44 BBB of the Act did not apply to the remittance made by the appellant to Atomstroyexport(ASE), that all the payments were in the nature of 'fees for technical services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epared detailed project report (DPR) prepared and had submitted to the Government of Republic of India for its review and final decision with regard to the implementation of the project. After considering the submissions of the assessee and the order of the AO, passed u/s. 195(2)of the Act, the FAA took notice of the fact that identical issue had been decided by his predecessor on four occasions in favour of the assessee. Following the same, he allowed the appeal filed by the assessee. Before us, the DR relied upon the order of the AO. As stated earlier, no one was present on behalf of the assessee. 4. We have perused the material before us. We find that the identical issue was adjudicated in favour of the assessee by the then FAA. s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee payment made by the assessee was in nature of royalty. The AO directed the assessee to deduct tax @10% for the payments made to ASE. The FAA, during the appellate proceedings, observed that the nuclear power station at Kundakulam, Tamil Nadu is being set up by M/s. Nuclear Power Corporation of India Ltd. and not by ASE on turnkey project basis, that ASE vide its contract dated 23-08-2002 for the deputation of its specialist at the project site for supervision had provided only technical services to the assessee which fell within the provisions of Section 115A of the Act, that contracts signed by ASE were for providing services by the foreign company for designing work, technical supervision and training of employees and do not cover the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to allow the position to be changed in the subsequent years. In other words, it can safely be said that notwithstanding the complexity of adjudication, provided for under the Act, Parliament certainly intended, consistency to be the hallmark of adjudication process. In the case of Aroni Commercials Ltd. (362 ITR 403)the Hon ble Bombay High Court has held that though the principle of res judicata is not applicable to tax matters as each year is separate and distinct, nevertheless where facts are identical from year to year, there has to be uniformity and in treatment. On an earlier occasion in the case of Gopal Purohit(336 ITR 287), the Hon ble Court has held that that there should be uniformity in treatment and when facts and circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed as income from house property for the assessment year 1989-90 . The Tribunal dismissed the application under section 256(1) of the Act. Dismissing the application filed under section 256(2) to refer the case, the Hon ble Court held as under: the doctrine of res judicata does not apply to income-tax proceedings since each assessment year is independent of the other but where an issue had been decided consistently in a particular manner for earlier assessment years, for the sake of the same view should continue to prevail for subsequent years unless there is material change in the facts. Since in the instant case there was no single distinguishing feature prompting a different view the income was liable to be assessed as busines ..... X X X X Extracts X X X X X X X X Extracts X X X X
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