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Deputy Director of Income-tax, Circle-3(1), International Taxation, New Delhi Vs M/s JC Bamford Excavators Ltd., C/o Pricewaterhouse, 11-A, Sucheta Bhawan, Vishnu Digamber Marg, New Delhi-110002
May, 23rd 2014
              DELHI BENCH `D', NEW DELHI
      Before Sh. R. S. Syal, AM And Sh. I. C. Sudhir, JM
                   ITA No. 111/Del/2012 : Asstt. Year : 2008-09
Deputy Director of Income-tax,          Vs M/s JC Bamford Excavators Ltd.,
Circle-3(1), International Taxation,       C/o Pricewaterhouse, 11-A, Sucheta
New Delhi                                  Bhawan, Vishnu Digamber Marg,
                                           New Delhi-110002
(APPELLANT)                                (RESPONDENT)

                   CO No. 303/Del/2012 : Asstt. Year : 2008-09
M/s JC Bamford Excavators Ltd.,         Vs Deputy Director of Income-tax,
C/o Pricewaterhouse, 11-A, Sucheta         Circle-3(1), International Taxation,
Bhawan, Vishnu Digamber Marg,              New Delhi
New Delhi-110002
(APPELLANT)                                 (RESPONDENT)

        Assessee by : Shri G. C. Srivastava, Adv. & Saurabh Srivastava
        Revenue by : Shri Sanjeev Sharma, CIT DR
Date of Hearing : 20.5.2014             Date of Pronouncement : 21.5.2014

Per R. S. Syal, AM:
      This appeal by the Revenue and Cross Objection by the assessee
arise out of the order passed by the CIT(A) on 30.09.2011 in relation to
the assessment year 2008-09.
                                    2      ITA No. 111/Del/2012 & CO No. 303/Del/2012
                                                            JC Bamford Excavators Ltd.

2.   First ground of the Revenue's appeal is against the holding by the
ld. CIT(A) that the assessee company did not have a service permanent
establishment in India.

3.   Having heard both the sides on this issue and perused the relevant
material on record, it is palpable that this ground does not arise out of
the assessment order. The Assessing Officer has no where held that there
is any permanent establishment. The ld. DR candidly accepted the
position by admitting that this ground does not arise out of the order
passed by the authorities below. In view of the above discussion, it is
clear that this ground is not maintainable and is hereby dismissed.

4.   Second ground of the Revenue's appeal is against not holding by
the ld. CIT(A) that royalty income of Rs. 92,13,440/- earned by the
assessee during the financial year 2006-07 is taxable in the assessment
year 2008-09.

5.   After considering the rival submissions and perusing the relevant
material on record, it is observed that the same issue was there in the
appeal for the assessment year 2007-08. The Tribunal, vide its order for
the said assessment year 2007-08, has held that the amount of Rs.
92,13,440/- should be included in the total income of that year. Since,
the same amount has been held to be includible in the total income of the
assessee for the assessment year 2007-08, there can be no question of
                                      3     ITA No. 111/Del/2012 & CO No. 303/Del/2012
                                                             JC Bamford Excavators Ltd.

including the very same amount in total income for the year under
consideration as well. This ground is not allowed.

6.      The only issue raised by the assessee in its Cross Objection is
against the direction of the ld. CIT(A) in holding that the interest u/s
234B is consequential in nature. The ld. AR fairly accepted that in view
of the inclusion of the amount of Rs. 92.13 lakh in the total income for
the assessment year 2007-08, there survives nothing on which interest
u/s 234B could be charged. In view of this position stated by the ld. AR,
we dismiss this ground as having become academic in nature.

7.      In the result, the appeal of the Revenue and the Cross Objection of
the assessee are dismissed.

  Order pronounced in the open Court on 21/5/2014.

              Sd/-                                             Sd/-
   (I. C. Sudhir)                                  (R. S. Syal)
JUDICIAL MEMBER                               ACCOUNTANT MEMBER
Dated: 21/5 /2014
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
                                                     ASSISTANT REGISTRAR
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