TMI Blog2018 (1) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... adducing information as well as the hearing shall be granted to assessee before deciding the issue. In the result ground, No. 1 of the appeal of the assessee is allowed with above direction. Grossing up the above services by the amount of tax deduction at source - Held that:- As we have already set aside the whole issue of determination of fees for technical services back to the file of the ld Assessing Officer the issue of grossing up of those services is related to that issue only, in the interest of justice, we also set aside ground No. 2 of the appeal of the assessee to the file of Assessing Officer. Charging of interest u/s 234B - Held that:- The issue is squarely covered in favour of the assessee by the decision of the Hon'ble Delhi High Court in case of DIT (International Taxation) Vs. GE Packaged Power Inc. (2015 (1) TMI 1168 - DELHI HIGH COURT), wherein, it has been held that where assessee is non-resident company, entire tax to be deducted at source at payments made by the payers to it and there was no question nof payment of advance tax by the assessee, therefore, revenue could not charge any interest u/s 234B. - ITA No. 1503/Del/2014 - - - Dated:- 8-1-2018 - S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding that even if consideration is treated as FTS, interest under section 234B is not applicable on facts and in law since: The entire income of appellant, being a non-resident, was subjected to tax deduction at source and tax was actually deducted by India affiliate, therefore, interest under section 234B of the Act is not applicable. 4. On the facts and in the circumstances of the case and in law, the Ld. AO has erred in initiating penalty for furnishing inaccurate particulars of income. 3. The assessee is a company incorporated under the laws of Singapore engaged in the business of providing transportation, logistics, and supply chain solutions. It is regional operational headquarter to provide management and support activities to its subsidiaries in related corporation in Asia pacific region. It has entered into an administrative support agreement with CEVA Freight India Pvt. Ltd on 01.01.2006 to provide day-to-day administrative support. The assessee filed its return of income on 12.12.2012 showing nil income in the status of non-resident company. The ld Assessing Officer examined the nature of administrative support services rendered to the Indian enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee preferred objection before the ld Dispute Resolution Panel who concurred with the view of the ld Assessing Officer. Therefore, assessee is in appeal before us in Ground No. 1 challenging the above finding of the lower authorities. 4. The ld Authorised Representative referred to the agreement which is placed at page 1-4 of the paper book and also referred to role of the assessee as per that agreement. He submitted that ld Dispute Resolution Panel has held that services are highly technical but has held that services were made available by the assessee. He further held that merely because the services have been availed by the service recipient are on a long term basis and for the limited duration and are the category of managerial and consultancy in nature same are held to be made available. He further referred to Article 12(4) of India-Singapore DTAA. He therefore, submitted that services are not available and hence, same are not chargeable to tax as per DTAA. It was further submitted that the issue is squarely covered in favour of the assessee by the order of the coordinate bench in assessee‟s own for Assessment Year 2005-06 in ITA No. 1527/Del/2011, wherein, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lower authorities. The assessee is providing following services which are under dispute:- Nature of Administrative Support. 1. Marketing and advertising support including service relating to marketing materials, brochures, bids and sales proposals. 2. MIS and accounting support including internal accounting standards and procedures, US GAAP reporting procedures, and formulation of budgetary control systems along with appropriate standard costing procedures. 3. Treasury function support including advice and assistance on financing business operations, credit and collections management, risk and investment management, and treasury and banking management. 4. information technology support including but not limited to systems applications assistance, management information reporting and facilitating and worldwide network connectivity. 7. With respect to the nature of services rendered by the assesee, it has submitted the eight emails as well as the copy of the bills raised on service recipient. The emails also relate to the only two services such as management Information system and I T Support system though assessee rendering for kind of services as per agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Though, observation made by the Ld. Dispute Resolution Panel is very relevant and appropriate, however without looking at the whole gamut nature of the services rendered by the assessee to the service recipient, it is not possible to decide whether the services are capable of make available‟ or not. One needs to examine with respect to the nature of services, various correspondence, conduct of the assessee, conduct of the service recipient and the nature of services involved, it is not possible to say that whether the services have been made available by the assessee or not. In the present case, assessee has not shown before the lower authorities that the natures of services are so that the service recipient is not capable of using them in future on its own without the support of the assessee. In view of this we direct the assessee to lead ample evidence before the ld Assessing Officer to show that services involved are of such a nature that assessee has not made available them to the recipient. The reliance on the order of the coordinate bench for Assessment Year 2005-06 in ITA No. 1527/Del/2011 dated 19.01.2017 was heavily placed by the ld AR. We have carefully perused th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer could not point out anything which remotely suggest that services have made available to that assessee and before the coordinate bench also no such claim was made. In the present case before us the ld Assessing Officer has made out a specific case and ld DRP has also considered all the aspects and held that services have been made available by the assessee to the service recipient. Therefore, reliance placed by the assessee on the decision of the coordinate bench is rejected. Further, the assessee has relied upon the host of decisions where concept of make available‟ has been deliberated. However, applicability of those decisions can only be decided if the assessee leads ample evidence before the lower authorities about the nature of services, manner of rendering those services and further to show that without the support of the assessee the recipient of the services would not be able to perform them on its own. In the present case, the assessee has not provided adequate details before the Assessing Officer as well as before the ld DRP. Before us, also, no evidences were laid but assessee attempted to press upon only the legal arguments. Before laying down the facts of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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