Director IT-I vs Deutsche Bank AG

By this Petition, the Petitioner seeks a review of the order dated 20th November, 2012 passed by this Court. By the order dated 20th November, 2012 DIT (IT) v. Deutsche Bank AG. (IT Appeal No. 233 of 2011, dated 20-11-2012), this Court did not entertain the Revenues Appeal for the Assessment Year 1994-95. This was in view of the fact that the Tribunal by order dated 28th January, 2010 while allowing the claim of the Respondent-Assessee followed the decision of this Court in the matter of Commissioner of Income Tax Vs. Deutsche Bank A.G. (formerly European Asian Bank), . This Review of order dated 20th November, 2012 is sought on the ground that the decision rendered by this Court in the matter of Deutsche Bank AG (supra) dealt with assessment year 1984-85 when Section 44C of the income tax Act, 1961 (the said Act) was different from that existing in the assessment year 1994-95. This was due to the fact that Section 44C of the Act was amended w.e.f. 1st April, 1993. In view of the above, it is the case of the Petitioner that the decision of this Court in the matter of Deutsche Bank AG (supra) would have no application for Assessment Year 1994-95. Therefore, the order dated 20th November, 2012 should be recalled.

In its order dated 28th January, 2010, the Tribunal has referred to the Agreement for the Double Taxation Avoidance Agreement (DTAA) Treaty entered into between Federal Republic of Germany and India on 28th June, 1984. The aforesaid DTAA inter alia, provided that deduction in respect of head office expenses would not be less than what is allowable under the Indian income tax Act as existing on 28th June, 1984. This position changed only by virtue of amendment to the DTAA in the assessment year 1998-99.

It therefore follows that during assessment year 1994-95, Section 44C of the said Act as applicable would be one existing as on 28th June, 1984 and not as existing during the subject assessment year. This is because the preamended section 44C of the said Act allowed more deduction to head office expenses then the amended Section 44C of the said Act. Consequently, the issue as raised before the Tribunal and this Court would continue to be governed for the subject assessment year by the order of this Court in the matter of Deutsche Bank AG (supra).

It was in the aforesaid circumstances that the order of the Tribunal dated 28th January, 2010 was passed by following the decision of this Court in the matter of Deutsche Bank AG (supra). Further this Court also by its order dated 20th November, 2012 refused to entertain the Revenues Appeal. In view of the above, it is clear that the order dated 20th November, 2012 was passed being conscious of the amendment to Section 44C of the Act. In these circumstances. Review Petition is dismissed with no order as to costs.