TMI Blog2023 (8) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... India and carried out its business under the control and guidance of the assessee and without assuming any significant risk in relation to such functions. Besides assessee has also provided certain hardware and software assets on free of cost basis to CIS. Thus, the findings of the CIT(A) that assessee has a fixed place PE in India under Article 5(1) of the DTAA is upheld. The ground is decided against the assessee and the order of Ld. CIT(A) in holding that assessee has a fixed place PE in India is upheld. Dependent Agent PE in India - HELD THAT:- This issue is decided in favour of assessee in A.Y. 2006-07 [ 2013 (11) TMI 564 - ITAT DELHI ] as held even assuming, CIS is not an agent of CMC, it does not have any authority to conclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof. The Appellant provides information technology enabled customer management services by utilizing its advanced information system capabilities, human resource management skills and industry experience. Appellant has claimed to be entitled to the benefits of the Double Taxation Avoidance Agreement between India and United States of America (hereinafter referred to as the DTAA ). Tax residency certificates were furnished during the course of the assessment proceedings and was accepted as such. The Appellant has a subsidiary in India by the name of Convergys India Services Private Limited (hereinafter referred to as CIS ). To service its customers, the Appellant claims that it procures services from India and does not carry out any ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee had fixed place PE in India, the appeals are yet to be disposed of by the Hon ble High Court. Thus, as of date, the order of the Coordinate Bench of the Tribunal for Assessment Years 2006-07 and 2008-09 have a binding precedential value for us because bound by judicial discipline, we are to follow the decisions of the Co-ordinate Bench, especially if the same have been rendered in assessee s own case. The relevant observations and findings of the ITAT in assessee s own case for Assessment Years 2006- 07 and 2008-09 and contained in para 9.8 of the said order and the same are reproduced herein under for a ready reference:- 9.8 Looking at the entirety of facts and circumstances, we are of the view that the Ld. CIT(A) s order on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dependent Agent PE in India. 7.1 In the absence of any thing to distinguish on facts or law, following the aforesaid, the ground is decide against Revenue. Ground no. 2 of Department s appeals : 8. The issue arises out of service PE of assessee in India, where learned CIT(Appeals) has held that there was no service PE in India. The issue has been considered in favour of assessee in Coordinate Bench order for A.Y. 2013-14 and followed in A.Y. 2014-15 2017-18. It will be appropriate to reproduce para 7.0.1 in order for AY 2013-14, here as follows: 7.0.1 We also note that the Ld. CIT (A) has returned a finding based on the order of the IT AT and has also noted that even in assessment year 2006-07, the Ld. CIT (A) had held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd followed thereafter in A.Y. 2013-14, 2014-15 and 2017-18. The relevant findings in paras 6.0, 6.4 and 7.3 for A.Y. 2013-14 are reproduced below: 6.0 .. It has also been held by the ITAT in assessee s own case for assessment year 2006-07 and 2008-09 as aforesaid that profits could be attributed on account of assets provided by the assesee to Convergys India Sendees Pvt. Ltd. . . 6.4 As far as the methodology of profit attribution is concerned, the Coordinate Bench in assessee s own case for Assessment Years 2006-07 and 2008-09 has laid down the methodology in paragraphs 11.17 to 11.26 of the said order and respectfully following the same, the TPO is directed to adopt the same methodology as enumerated by the Co-ordinate Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reproduced here under: 7.2 Similarly, the issue of payment link charges/IPLC charges being taxable under royalty has been decided in assessee s favour by the Tribunal in assessment year 2006-07 'n Para 3.5 of the said order. The same is being reproduced here in under for a ready reference:- 3.5. In view of the foregoing observations we hold that there is no transfer of the right to use, either to the assessee or to CIS. The assessee has merely procured a service and provided the same to CIS, no part of equipment was leased out to CIS. Even otherwise, the payment is in the nature of reimbursement of expenses and accordingly not taxable in the hands of the assessee. Therefore, it is held, that the said payments do not const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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