TMI Blog2018 (9) TMI 2048X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 are from difference source. Since no difference in facts could be pointed out by the ld. DR of the Revenue as per written submissions reproduced above, we find no reason to take a contrary view in the present years. Therefore, respectfully following the earlier Tribunal order followed by the ld.CIT(A), in the present years, we decline to interfere with the order of the ld.CIT(A) on this issue in all these three years. This issue is decided in favour of the assessee and against the revenue. Estimation of current tax liability after reducing tax deductible or collectible at source and Advance Tax - Scope of amendment in the provisions of section 209 by the Finance Act, 2012 w.e.f. 1/4/2012 by way of insertion of a Proviso below sub-section (1) of section 209 - HELD THAT:- Three years are involved i.e. AY 2011-12, 2012-13 and 2013-14. In AY 2011-12, this proviso is not applicable because the same is applicable from 1/4/2012 i.e. AY 2012-13. Therefore, insofar as AY 2011-12 is concerned, we find no reason to interfere with the order of the ld.CIT(A), but for AY 2012-13 and 2013-14, this proviso is applicable and since the ld.CIT(A) has not considered the amendment to section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e's case in A.Y. 2007-08 and the same was decided by Hon'ble ITAT in favour of the assessee vide Order in ITA no. 759/Bang/2011 dated 13.04.2012. This decision has been followed by Hon'ble ITAT in their orders for A.Ys 2008-09 2010-11. Following the order Of the Hon'ble ITAT for A.Y.2007-08, the CIT(A) allowed the assessee's appeals for A.Ys 2011-12, 2012-13 2013-14 against which the Department filed the present appeals before the Hon'ble ITA T. 2. The issue on hand is the determination of tax liability on income earned by way of Royalty earned by the assessee in India. The is foreign company incorporated in USA to whom provisions of section 115A(1)(b) of the Act are applicable in so far as determination of tax on the Royalty as per the provisions of the Act. The assessee , being a Non-resident entity, is also covered by India-USA Double Taxation Avoidance Agreement and provisions of Article 12 of this Agreement are applicable for taxing Royalty. As per provisions Of section 90(2) of the Act, the provisions of the Act or the Treaty whichever is beneficial to the assessee shall apply. 3. During the relevant years in question, the assessee had two ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hichever is beneficial to it. However, when it opts for provisions of the Act, the assessee should apply the relevant provisions of the Act as a whole but not in a piece-meal manner. The relevant provision of the Act for taxing Royalty income in the hands of non-resident is section 115A(I )(b) which provides that income tax payable shall be the aggregate of income tax calculated on different categories of Royalty income at the rates applicable specified in clauses (A) (AA). So, the tax liability determined after aggregation of tax liability on these categories of Royalty income is the tax liability as per the provisions of the Act and the same needs to be compared with the aggregate tax liability as per the provisions of the Treaty and thereafter whichever computation of tax liability is beneficial to the assessee, that may be chosen by the assessee as its ultimate tax liability in accordance with provisions of section 90(2). By comparing tax liability in respect of each of the categories of Royalty income as per provisions of the Act and the Treaty separately, the assessee has not acted in accordance with the provisions of section 115A(1)(b). In other words, the aggregation of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into before 01/06/2005 and similar royalty income as per agreement entered into on or after 1/6/2005. The Tribunal had given a categorical finding that royalty income in respect of agreement entered into before 1/6/2005 is from one source and royalty income in respect of agreements entered into on or after 1/6/2005 are from difference source. Since no difference in facts could be pointed out by the ld. DR of the Revenue as per written submissions reproduced above, we find no reason to take a contrary view in the present years. Therefore, respectfully following the earlier Tribunal order followed by the ld.CIT(A), in the present years, we decline to interfere with the order of the ld.CIT(A) on this issue in all these three years. This issue is decided in favour of the assessee and against the revenue. 6. The second issue has been decided by the ld.CIT(A) as per para.6 of his order in which he reproduced the relevant finding of the Tribunal in assessee s own case for AY 2003-04. Hence, for ready reference, this paragraph of the order of the ld.CIT(A) is reproduced herein below: 7. From above Para. reproduced from the order of the ld.CIT(A), it is seen that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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