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TMI Blog2018 (9) TMI 2048X X X X Extracts X X X X X X X X Extracts X X X X ..... -14. All these appeals were heard together and are being disposed of by way of this common order for the sake of convenience. 2. The identical grounds raised by the revenue in all the three appeals are as under: 3. During the course of hearing before us, it was submitted by the ld. AR of the assessee that only two issues are involved in these three appeals of the Revenue and on both these issues, the ld.CIT(A) has decided the issues in favour of the assessee. He submitted that the first issue regarding chargeability of tax rate on royalty income was decided by following earlier Tribunal order in assessee's own case for AY 2007-08, 2008-09 and 2009-10. and for second issue, the ld.CIT(A) has followed the tribunal order for AYs 2003-04 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 categories Of Royalty income from Indian companies, the first being Royalty receivable on account of agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee separately in respect of each of the streams of Royalty income. At the opening of para 7.4, while referring to the words " aggregate of " , the Hon'ble Bench held that this expression which provides for the aggregation of tax computed under each of the sub-clauses (A), (AA), (B), (BB) and (C) indicate that the charge of tax provided under the above sub-clauses are separate and independent, This conclusion is the one which the Department disputes with and the same was raised in the first two grounds in the appeals on hand and the present submissions are specifically in this regard 5. There is no ambiguity in so far as the legal provisions of section 90(2) are concerned. The assessee, being a non-resident , can certainly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lit the provisions of the Act and compute its tax liability as per its convenience. On the other hand, the AO had given the benefit of taxing the Royalty income as per the provisions of the Act, the same being beneficial to the assessee, after comparing the over-all tax liability as per the Act with over-all tax liability as per the Treaty. Thus, it is urged that the assessee has erred in application of provisions of the Act and Treaty separately in respect of each of the categories of Royalty and accordingly prayed for holding the issue in favour of Revenue. 6. With regard to the issue of Interest u/s.234B, besides making submissions that the liability of interest is mandatory and consequential, it has been specifically brought to the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Provided that for computing liability for advance tax, income-tax calculated under clause (a) or clause (b) or clause (c) shall not, in each case, be reduced by the aforesaid amount of income-tax which would be deductible or collectible at source during the said financial year under any provision of this Act from any income, if the person responsible for deducting tax has paid or credited such income without deduction of tax or it has been received or debited by the person responsible for collecting tax without collection of such tax." 8. Before us, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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