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2014 (2) TMI 737 - AT - Income TaxLiability to tax u/s 9(1)(vii) of the Act r.w Article 12 of India-Switzerland Tax Treaty - Revenues earned considered as Fees for Technical Fees (FTS) Held that:- The decision in eBay International AG Versus Assistant Director of Income-tax, Range - 3(2) [2012 (9) TMI 807 - ITAT MUMBAI] followed - The Tribunal after considering the modus operandi of the transactions undertaken through the websites operated by the assessee has held fees accrued to the assessee on successful completion of the transactions between the buyer and seller cannot be described as FTS as the assessee has no role to play in effecting sales - That it is in the nature of business profits Decided in favour of Assessee. Permanent Establishment in India - Attribution of profits Held that:- The decision in eBay International AG Versus Assistant Director of Income-tax, Range - 3(2) [2012 (9) TMI 807 - ITAT MUMBAI] followed - The Tribunal in view of the above has held that though eBay India and eBay Motors are dependent agents of the assessee, but do not constitute 'dependent agent PEs' of the assessee in terms of Article 5 of the DTA - these concerns cannot be treated as the PEs of the assessee in terms of Article 5(2)(a) of the DTA - Since the assessee has no PE as per Article 5 of the DTA, there can be no question of computing business profits of the assessee as per Article 7 of the DTA in relation to the revenue generated from India the business profit of the assessee which has been held to be business profit of the assessee but it cannot be taxed in India as the assessee has no PEs' as per Article 5 of the DTA Decided in favour of Assessee. Non granting of credit for taxes deducted at source Availability of credit of taxes u/s 199 of the Act Held that:- The decision in Escorts Ltd. v. Dy. CIT [2007 (5) TMI 362 - ITAT DELHI] followed Decided in favour of Assessee. Levy of interest u/s 234B of the Act Held that:- The decision in DIT (International Taxation) Vs. NGC Network Asia LLC [2009 (1) TMI 174 - BOMBAY HIGH COURT] followed - when a duty is cast on the payer to pay the tax at source, on failure, no interest can be imposed on the payee-assessee thus, the assessee is not liable for payment of any advance tax and hence no interest u/s. 234B of the Act is attracted Decided in favour of Assessee.
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