JUDGMENT
K.S. Pahipoornan, J.
1. At the instance of the Revenue, the Income-tax Appellate Tribunal (in short, “the Tribunal”) has referred the following two questions of law for the decision of this court :
” 1. Whether, on the facts and in the circumstances of the case, the reassessment under Section 147 of the Income-tax Act is valid ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in confirming the order of the Commissioner of Income-tax (Appeals) and holding that there was no business activity of the foreign company in India in respect of which the income could be said to have accrued or been earned in India?”
2. The respondent is a public limited company. It entered into a collaboration agreement with Messrs. Davy Power Gas Inc., U. S. A. for designing and constructing certain chemical plants. For this purpose, the foreign collaborator was to receive an agreed lump sum for technical know-how or fee. Apart from this, for deputing technicians to India, the company had to pay remuneration to the foreign technicians. A portion of this remuneration was payable in India in rupees. The question is whether income arose or accrued to the non-resident. The Tribunal considered the matter for the assessment years 1972-73, 1973-74 and 1974-75, which came up before this court in I. T. Rs. Nos. 446 to 451 of 1985 (see [1990] 185 ITR 398). The relevant Tribunal Appeals are I. T. As. Nos. 243 to 248/(Coch.) of 1977-78. The Tribunal decided the matter in favour of the assessee. But, in the references, this court held that the Tribunal had failed to pose the proper question from a proper angle or perspective. This court declined to answer the questions referred by the Tribunal and directed the Tribunal to decide the appeals afresh.
3. Two references relate to the assessment years 1976-77 and 1977-78. In the appeals, the Tribunal has relied on its earlier decision in I. T. As. Nos. 243 to 248/(Coch) of 1977-78 and held that there was no business activity of the foreign company in India in respect of which the income could be said to have accrued or earned in India, In this view, the assessee was held not liable to file any return in the representative capacity. Counsel for the Revenue submitted that the earlier decision relied on by the Tribunal in these two decisions has not been accepted by this court in the decision in CIT v. Fertilisers and Chemicals Travancore Ltd. [1990] 185 ITR 398 and so the very foundation on which the Tribunal rendered the decision in these two cases has become non est. We arc of the view that, in so far as the earlier decision relied on by the Tribunal, rendered in I. T. As. Nos. 243 to 248/(Coch) of 1977-78, has been set aside or not accepted by this court in I. T. Rs. Nos. 446 to 451 of 1985 (see [1990] 185 ITR 398), the appellate order passed by the Tribunal in the present cases cannot be upheld. We decline to answer the questions referred to this court by the Tribunal, but, at the same time, direct the Tribunal to restore the appeals to file and dispose of the same in accordance with law and the decision of this court in Fertilisers and Chemicals Tramncore Ltd.’s case [1990] 185 ITR 398.
4. The references are disposed of as above.
5. A copy of this judgment under the seal of this court and the signature of the Registrar will be forwarded to the Income-tax Appellate Tribunal, Cochin Bench.