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2013 (11) TMI 276 - AT - Income TaxTDS u/s 195 - payment to non residents for Maintenance Charges during warranty period - Applicability of section 9(1)(vii) - Fee for Technical Services (FTS) – Explanation to section 9 which is inserted with retrospective amendment - scope the term 'make available' - Held that:- CIT(A) has completely ignored the fact that the service agreements have real genesis in the purchase agreement qua the equipment ie Dense Wave Division Multiplexing equipment The impugned Service agreements, as amended from time to time, are required to be studied in conjunction with the purchase agreement of the equipment if the services which are rendered constitutes extended warranty with additional payments by way of AMC From the point of view of the provisions of Article 12(4)(b), it is a case of mere attending to the services by the Sycamore Networks Inc, USA to the complaints / troubleshooting of the assessee/assessee's customers through online requests. As such nothing is brought on record by the DR to counter the findings of the CIT (A) with regard to his conclusions on the applicability of the provisions of Article 12(4)(b) to the extent analysed and adjudicated. Thus, for the limited purpose of examining the (i) applicability of Article 12(4)(a); and (ii) the Article 12(4)(a) to the extent of 'make available' of the 'processes' mentioned therein, we remand the matter to the files of the CIT(A) for fresh examination and adjudication after obtaining the relevant facts – Decided in favor of Revenue for statistical purpose. TDS u/s 195 - payment for repair charges - whether constitute Fee for Technical Services (FTS) - scope of section 9(1)(viii) – Held that:- Following the decision in the case of M/s. BHEL-GE-Gas Turbine Servicing (P)Ltd. [2012 (8) TMI 199 - ITAT HYDERABAD], the payments for the repairs should not be subjected to TDS as the said payments outside the scope. - No TDS - Decided in favor of assessee.
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