THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
I.T.T.A. No. 585 of 2014
DATED:15.10.2014 Between:
Gulf Oil Corporation Ltd., Hyderabad.
… Appellant And The Assistant Commissioner of Income Tax, Hyderabad.
….Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR
I.T.T.A. No.585 of 2014
Judgment: (per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is sought to be preferred and admitted against the order of the learned Tribunal dated 22.1.2014 on the following suggested question of law.
1. Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal is correct in restricting the allowance of royalty on export sales to only 1% of the sale against 3.45% paid by the appellant to Gulf Oil International Mauritius (Inc.) (Associated Enterprise) ?
2. Whether on the facts and in the circumstances of the case, the learned Income Tax Appellate Tribunal is correct in confirming the disallowance of payment of royalty on export sales to Gulf Oil International Mautirius (Inc.) in excess of 1% of export sales, merely based on such acceptance for the subsequent years by the appellant company, ignoring the other relevant factors ?
We have heard the learned counsel for the appellant and have gone through the impugned judgment and order of the learned Tribunal.
The learned Tribunal after considering the factual aspects has come to the conclusion as follows:
“Coming to the export sales, the learned counsel relied on the various factors for allowing the entire claim. However, considering the fact that same issue was also examined by the DRP in Assessment years 2007-08 and 2008-09, which the assessee/appellant seems to have accepted, we are of the opinion that the royalty on export sales can be restricted to 1% as was done in later years and accordingly the royalty is restricted to an amount of Rs.18,05,788/-.. Therefore out of the amount of Rs.62,29,972/- Assessing Officer is directed to allow royalty at Rs.18,05,788/- and balance amount of Rs.44,24,184/- stands disallowed.”
The learned Tribunal has also considered the judgment of the coordinate bench in the case of Kinetic Motor Ltd., vs.
[1]
JCIT , and it was held that the said judgment is not applicable to the facts of the case. We are of the view that on the given facts, as rule of res judicata may not be applied for tax purpose, but the rule of consistency on accepted fact and question of law can very well be applied, even on the same assessee.
We, therefore, do not find any element of law involved in this appeal and the same is accordingly dismissed.
Consequently, the miscellaneous applications, if any pending, shall also stand closed. No order as to costs.
K.J. SENGUPTA, CJ 15th October, 2014 Pnb
[1] JCIT 77 ITD 393
SANJAY KUMAR, J