The Director Of Income Tax-Internationaltaxation, Mumbai v. M/S.boston Scientific International B.v.(India Branch

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTIONINCOME TAX APPEAL NO.1223 OF 2011 The Director of Income Tax-InternationalTaxation, Mumbai .. Appellant Versus M/s.Boston Scientific International B.V.(India Branch).. Respondent Mr.Suresh Kumar for the Appellant.Mr.F.V. Irani with Mr.Atul K. Jasani for the Respondent CORAM : J.P.DEVADHAR &M.S.SANKLECHA, J.J. DATE : 11[th] FEBRUARY, 2013. P.C. In this appeal by the Revenue for the assessment year 2002-03, the following questions of law have been formulated for our consideration. a) Whether on the facts and circumstance of the case and in law, the Tribunal was right in upholding the findings of the CIT (A) that it was wrong to hold that the receipt and payment from and to the associated enterprises was required to be separately examined devoid of its inter-se relationship ignoring the provisions of section 92 (1) read with explanation thereto and section 92(3) of the Act” ? (b)Whether on the facts and circumstances of the case and in law, the Tribunal erred in holding that the receipt of marketing support and the commission on direct sales are interlinked without appreciating that these two transactions are mutually exclusive in nature, which has resulted in upholding the assessee's action of not accounting for the adjustment to be made on account of interest receivable on delayed payment receipts”?(c)“Whether on the facts and circumstance of the case and in law, the Tribunal was right in holding that when the entire income of the assessee was subjected to deduction of tax at source and no interest can be imposed u/s.234B and 234 C on the assessee” ? 2.So far as Questions (a) and (b) are concerned, the basic dispute is whether the Assessing Officer is justified in adding sum of Rs.24.32 Lacs on account of respondent/assessee's failure to charge interest in respect of outstanding amounts of commission receivable from its Associated Enterprise one Boston Scientific Far East BV (BSFE) for a period in excess of 130 days. The CIT (A) as well as Tribunal deleted the above addition, after coming to a conclusion on finding of a fact that that Respondent/assessee had not only to receive payment from its Associated Enterprise i.e. BSFE, but also had to make payments to it in respect of purchase of goods for BSFE. The payments to be made to its Associated Enterprise (BSFE) was as noticed by CIT (A) and the Tribunal were throughout the year in excess of the amounts receivable from its Associates Enterprise (BSFE) and on this outstanding payments no interest was being paid. Infact the agreement between the BSFE and the respondent also did not provide for charging of any interest. On the aforesaid finding of fact the Tribunal concluded that adjustment on account of interest on payments receivable on the facts of the case, as done by the Assessing Officer has not warranted. In the above circumstances as the decision of the Tribunal is based on concurrent findings of fact arrived at by the CIT (A) and the Tribunal, we see no reason to entertain the proposed Questions 'a' and 'b'. 3.So far as Question 'c' is concerned, Counsel for the parties state that the issue stands concluded by the decision of this Court in the matter of Director of Income Tax (International Taxation) Vs NGC Network Asai LLC reported in (2009) 313 ITR page 187 in favour of the assessee and against the revenue. Thus we do not entertain the Question 'c'. 4.Accordingly, the appeal is dismissed with no order as to costs. (M.S.SANKLECHA,J.) (J.P.DEVADHAR, J.)