Director Of Income Tax vs Degussa A.G. Germany
2004 Latest Caselaw 9 Del

Citation : 2004 Latest Caselaw 9 Del
Judgement Date : 8 January, 2004

Delhi High Court

Director Of Income Tax vs Degussa A.G. Germany on 8 January, 2004

Equivalent citations: (2004) 187 CTR Del 295, 2004 270 ITR 301 Delhi

Bench: B Patel, B D Ahmed

JUDGMENT

1. This appeal is in respect of asst. yr. 1994-95. The CIT(A) as well as Tribunal, Delhi, Bench "B", New Delhi, held against the Revenue and in favor of the assessed. The Revenue has preferred this appeal which pertains to the 3rd Installment of lumpsum payment for technical services received by the assessed, a German company. The AO had treated this payment as royalty and subject to tax. The CIT(A) and Tribunal reversed this and held the same not to be royalty but business income and the same was exempt as the assessed had no permanent establishment in India.

2. As regards the earlier two Installments, the CIT(A) had accepted the version of the assessed. The - said decision was challenged before the Tribunal by preferring an appeal No. 708/Del/1993 for the asst. yr. 1990-91. Examining the matter, the Tribunal held that the payment cannot be considered to be royalty but business income and dismissed the appeal of the Revenue by an order dt. 29th Oct., 1999, for the asst. yr. 1990-91, The Revenue had not preferred any appeal against that order till the appeal in respect of the asst. yr. 1994-95 was decided by Tribunal on 17th Sept., 2002. Thus, for a pretty long period, the decision was accepted by Revenue. Consistency is required to be maintained by the Revenue. The CIT(A), in the present case has merely followed the earlier order in respect of asst, yr. 1990-91. The same has been done by the Tribunal.

3. It is argued by learned counsel for the Revenue that the order made in the earlier case for the year 1991 was not received by the Revenue and, therefore, appeal could not be preferred. It may be noted that the Revenue was aware of the order made by the Tribunal for the asst. yr. 1990-91 and the same was recorded not only by the Tribunal but by the CIT(A) also. Therefore, it is too late to say that Revenue could not challenge that order as it was not aware of the same.

4. In view of the circumstances, it, cannot be said that the Tribunal has committed a serious error while deciding the appeal. Therefore, we find no reason to interfere with the order made by the Tribunal,

The appeal is dismissed.