- (1.) THIS appeal has been filed by the Revenue against the judgment of the Tribunal dt. 30th Oct., 2001 under Section 260A of the IT Act.
(2.) THIS appeal was admitted on 29th Jan., 2003 by framing the following substantial question of law: Whether on the facts and in the circumstances of the case the Tribunal was justified in law in directing the AO to allow the deduction of Rs. 4,13,37,165 disallowed by him Under Section 40(a) of the IT Act and confirmed by the CIT(A) out of the claim of the assessee Under Section 35AB amounting to Rs. 8,10,37,633 ignoring the facts and material brought on record? Arguing the appeal it was contended by the learned Counsel for the appellant that in Paragraph 15 after taking into account the stipulations contained in the agreement between the assessee and the contractor which agreement was entered on 28th Feb., 1987 that the amount was payable by the assessee to the contractor, and negativing the contention of the assessee it was held as under: We, therefore, reject this contention of the learned Counsel for the assessee and held that the liability in respect of fees for technical services provided by DML to the assessee company had actually accrued as per the terms and conditions of the agreement entered into by these two parties... Prior to this it has also been held as under: In that view of the matter, we find no merit in the contention of the learned Counsel for the assessee that the fees was never payable by the assessee company to M/s DML and, therefore, the income from the same having not been deemed to accrue or arise in India within the meaning of Section 9(1)(vii), was not chargeable under the IT Act, 1961.
(3.) AS against this while passing the impugned order, in Paragraph 18 the learned Tribunal has arrived at diametrically contrary finding by holding as under: From the perusal of the above, it is evident that the amount of fees for technical services was never payable by the assessee company to M/s DML outside India.;