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2024 (3) TMI 717 - ITAT DELHITaxability of income in India - FIS - sub-contracting charges paid by SPi India to the Assessee - condition of ‘make available’ of technical knowledge - India-USA DTAA - HELD THAT:- As decided in Assessee’s own case for A.Y 2019-20 [2023 (7) TMI 406 - ITAT DELHI] sub-contracting charges received by the assessee does not satisfy the make available condition as envisaged under Article 12(4) of the India-USA DTAA and hence are not chargeable to tax as FIS in India in the hands of the assessee. Accordingly, all the grounds of appeal are decided in favour of the assessee. Taxability of sales commission - The assessee renders services relating to e-publishing work in the nature of editorial services including page composition, language polishing, indexing, correcting faulty grammar and punctuation etc. We have held that the said sub-contracting charges do not come within the purview of “Fees for Included Services” (“FIS”) under the India-USA DTAA the connected service of sales and marketing support service also does not satisfy the make available conditions and hence, is not taxable. Accordingly, we allow ground of assessee and delete the addition. Levying interest u/s 234A - assessee submitted that as per the notification No.93/2020/F. No.370142/35/2020-TPL, dated 31/12/2020, the due date for furnishing income tax return for the impugned AY 2020-21 was extended to February, 15, 2021, therefore, the AO erred in levying interest u/s 234A for the A.Y.2020-21 as the assessee has filed the return of income on February, 2021, which is well within the extended due date - HELD THAT:- We remand the issue to the file of the AO with a direction to verify the extended due date for filing the return and the actual date of return filed by the Assessee and pass appropriate order in accordance with law. According, the ground No.5.1 of the assessee is partly allowed for statistical purposes. Levying of interest u/s 234B - Considering the submission made by the AR, we deem it fit to remand the issue of levying interest u/s 234B of the Act to the file of the AO to verify and re-compute the assessed income and the tax thereon in accordance with law. Accordingly, ground No.5.2 of the assessee is partly allowed for statistical purpose. Non-consideration of refund due to the assesse - assessee submitted that while arriving at the demand payable in the computation sheet, the AO erred in making an erroneous in adjustment towards amount refunded without appreciating the fact that no refund was granted to the assessee and sought for remanding in the issue to the file of the AO - HELD THAT:- Considering the submission made by the AR, we remand the issue involved in ground to the file of the AO to consider the submission
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