Whether On The Facts And In The Circumstances Of The Case Theincome Tax Appellate Tribunal Was Justified In Upholding Thecommissioner Of Income Tax (Appeals)’S v. Whether On The Facts And In The Circumstances Of The Case The

OD-12 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITA/264/2009IA NO. GA/1/2009 (OLD NO. GA/2566/2009)COMMISSIONER OF INCOME TAX, KOLKATA – IIIVs.M/S. ERNST AND YOUNG PRIVATE LTD. BEFORE:The Hon'ble JUSTICE T. S. SIVAGNANAM AND The Hon’ble JUSTICE HIRANMAY BHATTACHARYYADate : 9[th] February 2023. Appearance:Mr. Tilak Mitra, Adv.…for the appellant. Mr. J.P. Khaitan, Sr. Adv.Mr. Akhilesh Kr. Gupta, Adv.Mr. Asim Chowdhury, Adv.Mr. Sohom Sen, Adv.…for the respondent The Court : Heard learned Counsel for the either side. This appeal filed by the revenue under Section 260A of the Income TaxAct, 1961 (the Act) is directed against the order dated 13.2.2009 passed bythe Income Tax Appellate Tribunal “B” Bench, Kolkata (the Tribunal) in ITANo. 1787/Kol/2008 for the assessment year 2005-06. The revenue hasraised the following substantial questions of law for consideration:- I.Whether on the facts and in the circumstances of the case theIncome Tax Appellate Tribunal was justified in deleting thedisallowance under section 40(a)(i) of the Income Tax Act ofRs.5,31,56,332/- and erred in accepting the claim of the assesseethat the amount only represented reimbursement of costs andthere was no element of income which is prerequisite forapplication of Section 195 ? II. Whether on the facts and in the circumstances of the case theIncome Tax Appellate Tribunal was justified in holding thatalthough the supply of date pertained to technical services, theactual factual aspect of the matter was that it was a result of anagreement between the parties for sharing the data amongst themember firms in the globalization process ? III. Whether on the facts and in the circumstances of the case theIncome Tax Appellate Tribunal was justified in rejecting the groundof the Revenue by following its own decision in the assessee’s owncase for the Assessment Years 2003-04 and 2004-05 and erred innot considering the reference under Section 260A is filed before theHon’ble High Court at Calcutta ? IV. Whether on the facts and in the circumstances of the case theIncome Tax Appellate Tribunal was justified in upholding theCommissioner of Income Tax (Appeals)’s deletion of the additionmade by the Assessing Officer under Section 40(a)(i) ? V. Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal was justified in holding that thepayment of Rs.5,31,56,332/- is to be treated as reimbursement ofcosts and not fees for technical services liable to TDS underSection 195 of the Income Tax Act, 1961? The learned Tribunal had dismissed the appeal filed by the revenue by relying upon its decision in assessee’s case for the assessment year 2003-04 in ITA No. 1750/Kol/2006. The revenue had filed an appeal before this Courtagainst the said order in ITA No. 471 of 2008 which was dismissed by this Court by judgement dated 5.01.2023. The operative portion of the orderreads as follows :- “The first substantial question of law is with regard to thedeletion of the disallowance under Section 40(a)(i) of the Act. Onperusal of the order passed by the learned Tribunal, we find that theTribunal has recorded that there is no rebuttal from the side of theIncome Tax Department that the expenses are not relating toreimbursement of expenses for supply of data as per the agreementmade amongst the global firms to which the assessee is treated asone of the members. The Tribunal also took note of the decision if thecase of CIT vs. Dunlop India Ltd. reported in 142 ITR 493 and decidedthe factual issue in favour of the assessee. Thus, we find that thereis no error in the said decision for us to interfere. Accordingly, thesubstantial question of no.(a) is rejected.” Thus in the light of the above decision, the order passed by the learnedTribunal requires to be affirmed. In the result, the appeal is dismissed and the substantial questions oflaw are answered against the revenue. Consequently, GA/1/2009 (Old No. GA/2566/2009) stands closed. (T. S. SIVAGNANAM, J.) Thus in the light of the above decision, the order passed by the learnedTribunal requires to be affirmed. In the result, the appeal is dismissed and the substantial questions oflaw are answered against the revenue. Consequently, GA/1/2009 (Old No. GA/2566/2009) stands closed. (T. S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.)