Case Law Details
In the instant cases, the Tribunal has not dealt with the case of Solid work Corporation (supra), even though the same has been relied upon by Ld Counsel appearing for the assessees and the Tribunal has also recorded the same in its order. In the foregoing case laws, it has been stated that non-consideration of the decision rendered by the co-ordinate bench on identical issue would result in a mistake apparent from record. Accordingly we find merit in the contentions of the assessees that the impugned order of the Tribunal suffers from mistake apparent from record.
Relevant Extract of the Judgment
10. The main contention of the assessees is that the Tribunal did not follow the co-ordinate bench decision rendered in the case of Solid Works Corporation (51 SOT 34) and the same has resulted in a mistake apparent from record. In this regard, the assessees have placed reliance on various decisions referred supra to support their contentions. It is an admitted fact that the decision rendered by co-ordinate bench has been relied upon by the counsel of the assessees and the Tribunal has also noted the same in page 28 of the order. In the case of Solid Works Corporation (supra), the co-ordinate bench of Tribunal has considered the issue, viz., whether the payment received by the assessee cited above from resellers in India on sale of computer software is royalty or not as per DTAA between India and USA. The co-ordinate bench of the Tribunal considered the decisions rendered by the Hon’ble Karnataka High Court in the case of Samsung Electronics Co. Ltd (2009)(185 Taxman 313) and the Hon’ble Delhi High Court in the case of DIT Vs. Ericsson AB (ITA No.504/2007 dated 23.12.2007) and held that the consideration received by the assessee for sale of software was not royalty. The co-ordinate bench held so by following the view expressed by the Hon’ble Delhi High Court in the case of DIT Vs. Ericsson AB, New Delhi (supra) since the same was favourable to the assessee. In this regard, the co-ordinate bench has followed the principle laid down by Hon’ble Supreme Court in the case of Vegetable Products Ltd (88 ITR 192).
11. In the instant appeals, the Tribunal admittedly did not consider the decision rendered by co-ordinate bench in the case of Solid Works Corporation (supra), even though it was relied upon by the assessees The assessees have contended that the non-consideration of the decision of co-ordinate bench, when it was specifically relied upon by the assessee would result in a mistake apparent from record and would warrant recall of the order. In support of this contention, the assessees have placed their reliance on the decision rendered by Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd (supra), wherein the Hon’ble Apex Court has held that the Tribunal was justified in exercising its power u/s 254(2) when it was pointed out to the Tribunal that the judgement of co-ordinate bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record.
12. The Hon’ble jurisdictional Bombay High Court had an occasion, in the case of Hatkesh Co. op Hsg Society Ltd Vs. ACIT (ITA No.328 of 2014 dated 22-08-2016), to consider the question as to whether the Tribunal was justified in taking a view contrary to the decision of the co-ordinate bench of the Tribunal rendered in the appellant’s own case on identical facts without making reference to a larger bench. In the above said case, the Tribunal had passed order in favour of the assessee in AY 2003-04, 2004-05 and 2005-06 after considering the decision rendered by Hon’ble Bombay High Court in the case of Sind Co-op Hsg. Society Vs. ITO (2009)(317 ITR 47)(Bom). However, the Tribunal has taken a different view in another year in the subsequent decision rendered by it and for that purpose; the Tribunal placed reliance on the decision rendered by Hon’ble Bombay High Court in the case of Sind Co-op Hsg. Society (supra). When the assessee filed appeals before Hon’ble Bombay High Court, the Hon’ble High Court held as under:-
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