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TMI Blog2019 (6) TMI 1689X X X X Extracts X X X X X X X X Extracts X X X X ..... law, the Dispute Resolution Panel ('the Panel') erred in not directing the Ld. AO to pass orders holding that the Appellant is not liable to be assessed to tax in India. 1.1. That on the facts and in the circumstances of the case and in law, the Panel erred in not directing the Ld. AO to follow the orders passed by the Hon'ble High Court of Delhi in the Appellant's own case for the AYs 2006-07 to 2008- 09 which dismissed the appeals filed by the Revenue Department against the favourable orders of the Hon'ble Income Tax Appellate Tribunal, New Delhi ('the Tribunal'). 2. That on the facts and circumstances of the case and in law, the Panel and the Ld. AO erred in holding that the receipts earned by the Appellant fall within the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e categories without giving a reasonable basis and accordingly, taxing 90 percent, 50 percent and 5 percent of the revenue from such non-resident customers. 5. The Ld. AO has erred in levying interest under Section 234B of the Act, by not appreciating the fact that the Appellant is not under any obligation to pay advance tax in India, since the Appellant is not liable to tax in India. 6. That the Ld. AO erred in initiating penalty proceedings under section 271(1)(c) of the Act." 3. At the very outset, the ld. AR stated that the issues raised in this appeal are squarely covered in favour of the assessee and against the Revenue by the order of the Tribunal in assessee's own case for A.Y 2012-13. 4. The ld. DR could not bring any disting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad information. For the AY 2012-13, the assessee filed their return of income on 28.9.2012 declaring an income of Rs.18,24,926/- and claiming a refund on account of claim of TDS amounting to Rs.65,90,960/-. 4. Learned AO after recording the assessment history of the assessee from AY 1996-97 to 2011-12 and also while referring to the provisions of OECD Commentary on Article 12 and also the decision of PanAm Sat International Systems Inc.(7 Intl. Tax Law Report 419) held that the consideration received by the assessee from the provision of satellite transmission services to its customers fall under the royalty definition as given in Section 9(1)(vi) of the Act and Article 12 of the India USA tax treaty and hence taxable in India and accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal before us challenging the taxability of the receipts u/s 9(1)(vi)(c) of the Indo Us DTAA. 6. At the outset, it is brought to our notice by the learned AR that in assessee's own case for the AYs 2005-06 and 2009-10 to 2011-12 in ITA Nos.2234/Del/2009, 6041/Del/2012, 451 & 6312/Del/2014, after considering the circumstances and contentions of the parties, a Coordinate Bench of this Tribunal decided the issue in favour of the assessee. The Tribunal followed the decision of the Hon'ble jurisdictional High Court in the case of Asia Satellites (supra) and DIT vs New Skies Satellite BV, 382 ITR 114 (Del). Learned AR further submitted that since there is no change in the fundamental facts permeating all these years including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed the review petition also. Further, post retrospective amendment by way of Finance Act, 2012 in Section 9(1)(vi) in the case of New Skies Satellite BV, the Hon'ble jurisdictional High Court held that the condition with respect to taxability of satellite transmission services in India would remain the same for the DTAA and amendment to the Act with a retrospective or prospective cannot be read in a manner so as to extend the operation to the terms of international treaty. 10. It is, therefore, clear that the issue involved in this appeal remains squarely covered by the judgments of the Hon'ble jurisdictional High Court. When the issue no longer remains res integra and there is no change in the fundamental facts permeating al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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