The Commissioner Of Income Tax & Another v. Income Tax Appeal

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL INCOME TAX APPEAL NO. 42 OF 2007 The Commissioner of Income Tax & another. ………….Appellants. Versus Hyundai Heavy India Co. Ltd. ……………….Respondent. & INCOME TAX APPEAL NO. 43 OF 2007 The Commissioner of Income Tax, Dehradun & another. ………..Appellants. Versus Hyundai Heavy Ind. Co. Ltd. …..Respondent. Mr. Arvind Vashisth, learned counsel for the appellant. Mr. O.P Sapra & Mr. S.K. Posti learned counsel for the respondent / assessee. 4th December, 2008 Coram : Hon’ble P.C. Verma, J. Hon’ble Sudhanshu Dhulia, J. These appeals pertain to assessment year 1994-95 and 1995-96. In both the appeals following substantial question arises to be considered: “Whether the Hon’ble I.T.A.T. was legally correct in holding that no portion of the payment made to the NRC outside India for the work done outside India under the composite contract for designing fabrication, installation and commissioning of installations on a turn key basis providing for payment to be made on milestone basis is liable to be taxed in India?” 2. In the similar facts and circumstances, the matter went upto the Supreme Court against the Division Bench of this Court between the same parties relating to previous assessment years, which is reported as CIT V. Hyundai Heavy Industries Col Ltd. [2007] 291 ITR 482 (SC). While affirming the judgment of this Court, the Hon’ble Apex Court has observed as under: “Before concluding, we may point out that the High Court had erred in holding that no substantial question of law arose in this case under section 260A of the Act. In our view, substantial questions of law did arise. We did not remit the matter to the High Court, particularly, when the appeal is in respect of the assessment years 1987-88 and 1988-89.” 3. Therefore, in view of the two answers given in Clause (a) and (b) of Paragraph 15 of the aforesaid judgment, the matter is remitted to the ITAT for deciding the same afresh in the light of Clause (a) and (b) of Paragraph 15 of CIT V. Hyundai Heavy Industries Co. Ltd. [2007] 291 ITR 482 (SC)applying the aforesaid law on the facts of the present case, in case two issues are arising in the facts of the present case, but if no issue arises, the ITAT shall close the proceeding. The order dated 19.5.2006 passed by the Income Tax Appellate Tribunal in ITA No. 2291 / Del/ 2002 for A.Y. 1995-96 and the order dated 19.5.2006 passed by the Income Tax Appellate Tribunal in ITA No. 2290 / Del/ 2002 for A.Y. 1994-95 are set aside. 4. Consequently, present Income Tax Appeals are allowed. No order as to costs. (Sudhanshu Dhulia, J.) (P.C. Verma, J.) 4.12.2008 4.12.2008 Rathour