The Director Of Income Tax(International Taxation v. M/S. Siemens Akiengesellschaft

ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.5612 OF 2010 The Director of Income Tax(International Taxation). v. M/s. Siemens Akiengesellschaft. ..Appellant. ..Respondent. Mr. Suresh Kumar for the Appellant. Mr. P.J. Pardiwala, Sr.Advocate with Mr. Sameer Chitnis i/by Crawford Bayley & Co. for the Respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATE : 20[th] November, 2012 PC: Three questions of law are raised by the revenue in this appeal read thus: a)Whether on the facts and in the circumstances of the case and in law the Tribunal was right in directing the A.O. to delete the addition made of Rs.49,26,023/- computed @ 5% of the turnover of Rs.9,85,28,40,467/- arising from the supply of the equipment to GPEC in India on the ground- (i)that the case was fully covered by the Board's Circular No.1829 as the supply to GEPC was purely on the FOB basis and therefore no part of supply of design and engineering fees was taxable in India. (ii) that there was no P.E. In India during the P.Y. relevant to A.Y. 1998-1999? b)Whether on the facts and in the circumstances of the case and in law the Tribunal was right in ignoring the fact- (i)that the assessee failed to furnish the details regarding the visits of foreign company's technicians or expert personnel and their stay in India; (ii)that the contract between the assessee company and GPEC was entered into way back in 1994 and these contracts continued during the year under consideration and the activity of consideration site would have continued for more than 6 months. c)Whether on the facts and in the circumstances of the case and in law the Tribunal was right in holding that the assessee being a non resident, the entire income of the assessee was not subject to TDS u/s. 195 of the Income Tax Act,1961 and no liability u/s. 234B would arise ignoring the fact- (i)that since the tax deducted at source was not adequate to meet the entire tax liability, it was the obligation of the assessee to make the deficit good by making payment towards advance tax; (ii)that since the assessee failed to pay advance tax, the AO was right in charging the interest u/s. 234B of the Income Tax Act,1961? 2) Counsel for the parties state that similar issues raised by the revenue in assessee's own case being Income Tax Appeal No.1033 of 2011 have been rejected. For the reasons stated therein the present appeal is also dismissed. (M.S.SANKELCHA, J.) (J.P. DEVADHAR, J.)