TMI Blog2019 (3) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeals were not heard by either of us. We are therefore unable to fathom as to why the Tribunal remanded the case to the AO to reframe assessment in the light of the directions contained in the order. The issue sought to be agitated in this MP before the Tribunal is highly debatable and two views are possible on the issue. In such circumstances, we are of the view that it would not be appropriate to exercise powers u/s.254(2) of the Act as the order does not suffer from any mistake apparent on the face of the record. None of the observations in this order should influence the mind of the parties in their interpretation of the order.- Miscellaneous petition dismissed. - MP No.259/Bang/2018, [In IT(IT)A No.2845/Bang/2017] - - - Dated:- 20-2-2019 - SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI B.R BASKARAN, ACCOUNTANT MEMBER For The Applicant : Shri Dhandapani, JCIT (DR, Bengaluru) For The Respondent : Shri Percy Pardhiwalla, Sr. Advocate ORDER Per N.V. Vasudevan, Vice President This is a Petition filed by the Revenue u/s.254(2) of the Income Tax Act, 1961 (Act) alleging that there are certain apparent errors in the order of the Tribunal which s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IL. In the light of these facts, we are of the view that Revenue has wrongly assessed the GIL for business profit received by it under AdWord Distribution Agreement. Moreover, during the course of hearing, the learned Standing Counsel has candidly admitted that now the Revenue's stand is very clear that the payment made by the GIPL to GIL is in the nature of royalty and not the business profit received by the GIL. Therefore, we are of the considered opinion that assessment of business profit in the hands of GIL after treating the GIPL as Permanent Establishment of the GIL is not proper. Even if the royalty is to be paid by the GIPL to GIL the tax is to deducted on its payment and benefit of the same will be given to GIL while completing the assessment in its hands. Therefore, we set aside the order of CIT(A) and restore the matter to the AO with a direction to reframe the assessment in the light of the observations of the Tribunal in the foregoing paras and also in accordance with law. Accordingly, this appeal is partly allowed for statistical purposes. 6. It is the plea of the revenue in this petition that the assessment was never made by the revenue by treating the rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... access to the intellectual property rights and tools and informatives, derivative works owned by the GIL. In the instant case, assessee is not a simpliciter buyer of AdWord Space for putting the advertisement either for himself or for others which was the position in the aforesaid cases referred to by the assessee. Therefore, we are of the view that the facts of the case referred to by the assessee i.e., Pinstorm Technologies Ltd., Right Florist and Yahoo India Ltd., are different than the facts of the instant case. Thus the ratio laid down in those cases would not be applicable to the present facts of the case. 117 . The learned Counsel for the assessee has also emphatically argued that the issue involved in these appeals is squarely covered by the aforesaid judgments in the case of Right Florist, Pinstorm Technologies Ltd., Yahoo India Ltd., Therefore, issue may be decided following the ratio laid down in the aforesaid cases. If the Tribunal takes a view contrary to the view taken in the aforesaid cases, the matter may be referred to larger bench. In this regard, we have carefully perused the facts of the aforesaid cases and we find the facts of those cases are diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding the issue to the AO for reframing the assessment. His submission was that, in the light of the circumstances pointed out by him as above, the directions in paragraph 190 of the Tribunal s order is a conscious decision to remand the issue and reframe the assessment of GIL afresh in the light of its observations in paragraph 116 117 of its order holding that payments received directly from advertisers were in the nature of business profits. He therefore submitted that there is no error much less an error apparent on the face of the record, calling for interference u/s.254(2) of the Act. 10. We have carefully considered the rival submissions. The scope of proceedings u/s.254(2) of the Act are very limited. The power of the Tribunal under s. 254(2) is confined to rectifying any mistake apparent from the record. The Tribunal does not have inherent power of rectification or review or revision. Unless there is mistake apparent from the record in the sense of patent, obvious, clear error or mistake, the Tribunal cannot recall its previous order. If the error or mistake is one which could be established only by long-drawn arguments or by way of process of investigation and resea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of royalty and were in the nature of business profits of GIL and since GIL did not have a PE in India, the said receipts are not chargeable to tax in India. To this extent it can be said that there appears to be a mistake in the order of the Tribunal in paragraph 190 of the order. 13. It is the plea of the Assessee that going by the observations in paragraph 116 of its order which is to the effect that GIPL acted as distributor of advertisement space whereas the facts in the cases cited on behalf of Assessee s were all cases where the advertisements were directly placed by advertisers or persons who purchased space from owner of search engine providing online advertisement space, it appears that the Tribunal has accepted that if advertisements were directly placed by advertisers or persons who purchase space from owner of search engine providing online advertisement space, receipts from providing such advertisement space would be in the nature of business profits. Since GIL did not have PE in India nor was GIPL regarded as constituting PE of GIL in India, the said receipts from direct advertisement cannot be brought to tax in India. It is for this reason that the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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