Ac Nielsen Corporation, Mumbai vs Assessee

ACNielsen Corporation, बनाम/ Dy. Director of Income Tax C/o. Nielsen (India) Private (International Tax) - 1(1), Vs. Limited, 6 t h Floor, Block-C, Aaykar Bhavan, Maharshi Godrej I T Park, 02 Godrej Karve Marg, Business District, Mumbai 400 079. Phirojshanagar, LBS Marg, Vikhroli (W), Mumbai 400079 थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAAEC 8632R

(अपीलाथ /Appellant) .. ( यथ / Respondent)

Appellant by Shri Madhur Agarwal Respondent by Ms. S.Padmaja सनु वाई क" तार$ख / Da te o f Hearing : 20/05/2015 घोषणा क" तार$ख /Date of Pronouncement : 20/05/2015

आदे श / O R D E R

PER I.P.BANSAL, J.M:

All these appeals are filed by the assessee and they are directed against three separate orders passed by Ld. CIT(A)-10, Mumbai, dated 30/09/2013 for 2 ITA No.1200-1202/MUM/2014 A.Y.2004-05 TO 2006-07

assessment years 2004-05, 2005-06 and 2006-07. Grounds of appeal in all these appeals are identical except difference in figures. Grounds of appeal for A.Y. 2004-05 read as under:

"Ground No.1: Levy of penalty under section 271(1)(c):

1.1 The learned CIT(A) erred in confirming penalty under section 271(1)(c) of the Income-tax Act, 1961 (the Act) of Rs.1,16,51,874 on the alleged ground that inaccurate particulars of income were furnished.

1.2 The learned CIT(A) erred in observing that the Appellant did not adduce evidence / documents while filing the return of income for making the assertion.

He further erred in observing that the Appellant did not disclose its true and correct income while filing the return of income". 1.3 The learned CIT(A) erred in not considering the detailed submissions made by the Appellant.

For other assessment years the figures are as under:

Assessment Year Amount -------------------- ---------- 2005-06 Rs. 1,77,96,519

2006-07 Rs. 1,75,20,159

2. It was submitted before us that the quantum addition in respect of all the above mentioned assessment years was subject matter of consideration before the Tribunal in the appeals filed by the assessee and the same have been decided vide consolidated order dated 8/8/2014 in ITA No.1901 to 1903/Mum/2010. Copy of the said order was placed on our record and it was submitted that the impugned addition in respect of which the impugned penalty is levied have been set aside by the Tribunal to the file of AO with a direction to examine the issue afresh by duly considering the submissions made by the assessee, the relevant case laws and take appropriate decision in accordance with law. Copy of the said order was filed before us and was also given to Ld. DR, who did not controvert the aforementioned submissions made by Ld. AR. The relevant observations of the Tribunal are as under:

"8. The expressions "Royalty" and "Fees for included services" have been given distinct meaning in the Indo US treaty. We have already noticed that the tax 3 ITA No.1200-1202/MUM/2014 A.Y.2004-05 TO 2006-07

authorities were not able to come to a conclusion as to whether the consideration received by the assessee company would fall within the meaning of "Royalty" or "Fees for included services", even though there are plethora of case laws explaining both the terms. Hence, from the foregoing discussions, we are of the view that the tax authorities have not examined the impugned issue in proper perspective, i.e., the matter has not been examined in the context of Indo-US treaty by considering the meaning of various terms used therein. As stated earlier, the meaning to be ascribed to various terms used in the treaty has been the bone of contention in various case laws and we notice that the tax authorities have not considered the applicable case laws. Under these circumstances, we are of the view that the impugned matter requires fresh examination at the end of the assessing officer. When we expressed our view to both the parties, they also accepted the fact that the matter has not been examined by the tax authorities in proper perspective and accordingly agreed that the matter requires fresh consideration at the end of the assessing officer.

9. Accordingly, we set aside the orders passed by Ld. CIT(A) in all the three years and restore the matter to the file of the assessing officer with the direction to examine the issue afresh by duly considering the submissions made by the assessee, relevant case laws and take appropriate decision in accordance with the law."

3. In this view of the situation, after hearing both the parties, we set aside the impugned penalties in respect of all the years and restore these appeals to the file of AO with a direction re-adjudicate the issue regarding levy of concealment penalty after deciding quantum as per aforementioned order of the Tribunal and after giving the assessee a reasonable opportunity of hearing. With these observations, appeals filed by the assessee are treated to be allowed for statistical purposes in the manner aforesaid.

4. In the result, all the appeals filed by the assessee are allowed for statistical purposes in the manner aforesaid.

Order pronounced in the open court on 20/05/2015 आदे श क" घोषणा खुले यायालय म* +दनांकः 20/05/2015 को क" गई ।

Sd/- Sd/- (डी. क णाकर रावु / D.KARUNAKARA RAO) (आय.पी. बंसल / I.P. BANSAL) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai; +दनांक Dated 20/05/2015 4 ITA No.1200-1202/MUM/2014 A.Y.2004-05 TO 2006-07

आदे श क त ल प अ!े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. आयकर आयु/त(अपील) / The CIT(A)- 4. आयकर आयु/त / CIT

5. 0वभागीय त न2ध, आयकर अपील$य अ2धकरण, मुंबई / DR, ITAT, Mumbai

6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER, स या0पत त //True Copy//

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मंब ु ई / ITAT, Mumbai व. न.स./Vm, Sr. PS