TMI Blog2021 (4) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... , because procedural technicalities is handmaid of justice. We wish to bring on record that when ld. CIT DR has failed to controvert the assertions made by the ld. AR for the taxpayer made in the light of the letter dated 02.03.2021 (supra) that all the issues pertaining to the appeals filed by the taxpayer as well as Revenue having been settled once for all under MAP , he should not stick to his ceremonial contention that he has not received any intimation from the AO concerned to withdraw the appeals filed by the Revenue. Even otherwise, he would have got the matter expedited at the level of AO, being a senior officer of the Department. CIT DR is not merely a post office to put forward the decision made by the AO rather being an officer of the court, he is required to assist the Bench on the factual and legal aspects involved in the aforesaid appeals in the interest of speedy disposal of litigation for the ease of business, to which Government of India is committed to. We are of the considered view that the letter dated 02.03.2021 written by the CBDT to the taxpayer stating therein that since all the issues raised by virtue of the taxpayer s appeals as well as Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.05.2013 passed by the Assessing Officer (AO) in consonance with the orders passed by the ld. DRP under section 143 (3)/147 read with section 144C of the Incometax Act, 1961 (for short the Act ) qua the assessment years 1999-00, 2000-01, 2000-01, 2001-02, 2001-02, 2002-03, 2002-03, 2003-04, 2004-05, 2004-05, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 2010-11 on the identical grounds except the difference in the figures. 3. Appellant, ADIT, International Taxation, Circle 2 (1), New Delhi (hereinafter referred to as the Revenue ) by filing the present appeal sought to set aside the impugned orders dated 27.12.2006, 27.12.2006, 27.12.2006, 27.12.2006, 31.12.2007, 18.11.2008, 03.02.2011, 01.02.2012 07.05.2013 passed by the Assessing Officer (AO) in consonance with the orders passed by the ld. DRP under section 143 (3)/147 read with section 144C of the Income-tax Act, 1961 (for short the Act ) qua the assessment years 2000-01, 2001-02, 2002-03, 2004-05, 2005-06, 2006-07, 2008-09, 2009-10 2010-11 on the identical grounds except the difference in the figures. 4. At the very outset, ld. AR for the assessee by moving an application dated 17.03.2021, brought on record th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, will not be taxable in India. In the case of contracts not subject to the AAR rulings, where separate consideration was paid for software and its related elements (e.g. software maintenance and support, and the provision of software documentation), the revenue will be characterized as royalties and taxed accordingly. This royalty income will not be attributable to the assumed PE while the revenue from COTS and hardware will be treated as business income attributable to the assumed PE. In the case of contracts other than those covered under the AAR rulings (i.e. software, hardware, and other items) where there is a consolidated consideration for software, hardware and other items, all of the revenue will be considered business income attributable to the assumed PE . 3. The details of the revenue taxable as per the MAP settlement is as under: TABLE 1 Particulars Amount in (INR Crores) Amount in (USD Mn) Business Income Royalty Business Income Royalty Gross Revenue 821,97 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taxable Income Taxability Supply of Future Air Navigation System (FANS) 0 0 0.37 0.16 MAFI Software 0 0 1.58 0.67 RVSM 8.40 1.26 0 0 AODB Contract* 1.53 0.16 0 0 ASMS 28.71 3.03 0 0 BEL Contract* 0.36 0.04 0.53 0.23 MAAT 7.61 0.80 0.22 0.09 MDER Contract 8.28 0.87 0.43 0.18 BEL Athena Contract* 50.76 6.74 0.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... * 0.01 0.00 Total 21.87 9.33 Amount in INR Crores 21.87 9.33 Amount in USD millions 3.12 1.33 *These projects are ongoing 4. As per Rule 44G(7) of the Rules, you are requested to communicate your acceptance or non-acceptance of the above resolution in writing to the Competent Authority in India. Further, the said acceptance shall be communicated within thirty days of receipt of this communication under sub-rule(6) of Rule 44G. 5. In the case of acceptance of the above resolution, you are also requested to enclose with it the proof of withdrawal of appeal, if any, pending on the issues that are the subject matter of this resolution, in accordance with sub-rule (8) or Rule 44G. You may also email your response on the following email id: usfttr1-2@gov.in. Yours Faithfully, Sd/- Under Secretary (FT TR-I), CBDT Email: usfttrl-2@gov.in 5. Ld. AR for the assessee sought withdrawal of all the appeals filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een settled once for all under MAP , he should not stick to his ceremonial contention that he has not received any intimation from the AO concerned to withdraw the appeals filed by the Revenue. Even otherwise, he would have got the matter expedited at the level of AO, being a senior officer of the Department. 10. So, we are of the considered view that ld. CIT DR is not merely a post office to put forward the decision made by the AO rather being an officer of the court, he is required to assist the Bench on the factual and legal aspects involved in the aforesaid appeals in the interest of speedy disposal of litigation for the ease of business, to which Government of India is committed to. 11. In these circumstances, we are of the considered view that the letter dated 02.03.2021 written by the CBDT to the taxpayer stating therein that since all the issues raised by virtue of the taxpayer s appeals as well as Revenue s appeals have been settled once for all under MAP proceedings, nothing survives and as such, the contentions raised by the ld. DR to keep the appeals filed by the Revenue alive till completion of some formalities are not sustainable. Hence, the aforesaid appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23] [In favour of assessee] 22. This Court, therefore, holds that Jacabs Civil Incorporated/Mitsubishi Corporation (supra) applies in such situations; Alcatel Lucent USA Inc. (supra) can be explained as a decision turning upon its facts; its seemingly wide observations, limited to the circumstances of the case. This Court, therefore, holds that the view taken by ITAT was correct; the primary liability of deducting tax (for the period concerned, since the law has undergone a change after the Finance Act, 2012) is that of the payer. The payer will be an assessee in default, on failure to discharge the obligation to deduct tax, under Section 201 of the Act. 23. For the above reasons, this Court finds that no interest is leviable on the respondent assessees under Section 234B, even though they filed returns declaring NIL income at the stage of reassessment. The payers were obliged to determine whether the assessees were liable to tax under Section 195(1), and to what extent, by taking recourse to the mechanism provided in Section 195(2) of the Act. The failure of the payers to do so does not leave the Revenue without remedy; the payer may be regarded an assessee-in-defau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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