Alcatal Lucent International vs Asstt. Director Of Income Tax And ...
2010 Latest Caselaw 2349 Del

             THE HIGH COURT OF DELHI AT NEW DELHI
%                                        Judgment delivered on: 03.05.2010

+            WP(C) 2970/2010, 2971/2010, 2972/2010 & 2979/2010


ALCATAL LUCENT INTERNATIONAL                                        ... Petitioner

                                         - versus -

ASSTT. DIRECTOR OF INCOME TAX AND ORS                               ... Respondents

Advocates who appeared in this case:-

For the Petitioner         : Mr Ajay Vohra with Ms Kavita Jha and
                             Mr Sachit Jolly
For the Respondent         : Mr Sanjeev Sabharwal

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

BADAR DURREZ AHMED, J (ORAL)

CM Nos. 5899/2010, 5901/2010, 5903/2010 & 5921/2010

Allowed subject to all just exceptions.

ITA 2970/2010 & CM 5898/2010, ITA 2971/2010 & CM 5900/2010, ITA 2972/2010 & CM 5902/2010 & ITA 2979/2010 & CM 5920/2010

1. In these writ petitions the grievance of the petitioner is that the

Assessing Officer, while giving appeal effect to the orders passed by the

Income Tax Appellate Tribunal, has travelled beyond what the Income Tax

Appellate Tribunal had contemplated.

WP(C) Nos. 2970/2010, 2971/2010, 2972/2010 & 2979/2010 Page No.1 of 3

2. The learned counsel for the petitioner submits that in the years in

question, namely, 1997-1998 to 2000-2001 (except the assessment year

1999-2000), the issue with regard to attribution of income towards sale of

software stood concluded by the Income Tax Appellate Tribunal and the

department has filed an appeal before this Court in respect of that issue.

The learned counsel for the petitioner submitted that the Assessing Officer

could not have re-agitated and gone into the issue which stood concluded by

the Income Tax Appellate Tribunal. He also submitted that insofar as the

assessment year 1997-1998 is concerned, an amount of Rs 100 crores

towards supply of hardware had already been deleted by the Commissioner

of Income Tax (Appeals) and that had become final. The Assessing Officer

ought not to have included this amount once again while purportedly giving

appeal effect to the Tribunal's order.

3. The learned counsel for the petitioner also submitted that the

original assessment orders were passed on the basis of the finding that the

petitioner had a fixed place permanent establishment in India and that

finding was reversed by the Commissioner of Income Tax (Appeals).

However, in the revenue's appeal before the Tribunal, the latter has held

that there is a service permanent establishment. According to the learned

counsel for the petitioner since the very basis or nature of the permanent

establishment has changed from a fixed place PE to a service PE, the entire

method of quantification must also change. This fact, according to the

learned counsel for the petitioner, has not examined by the Assessing

Officer while giving appeal effect to the Tribunal's order.

WP(C) Nos. 2970/2010, 2971/2010, 2972/2010 & 2979/2010 Page No.2 of 3

4. We find that the orders passed by the Assessing Officer giving

appeal effect to the Tribunal's order are appealable. The points sought to be

agitated before us can surely be raised by the petitioner before the Appellate

Authority. Because the petitioner has an alternative remedy of an appeal,

we are not inclined to entertain these writ petitions. The same stand

dismissed with liberty to the petitioner to prefer appeals in respect of the

impugned orders.

BADAR DURREZ AHMED, J

V.K. JAIN, J May 03, 2010 SR

WP(C) Nos. 2970/2010, 2971/2010, 2972/2010 & 2979/2010 Page No.3 of 3