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2022 (5) TMI 1518 - AT - Income TaxIncome accrued in India - Addition on account of management fee - FTS / FIS - inclusion of managerial services within the scope of FTS/ FIS - HELD THAT:- As decided in assessee own case [2022 (4) TMI 1062 - ITAT DELHI] considering the services provided by the assessee (listed above), in our view, these are not technical services nor do they require any technological knowledge, skill or experience. There is no transfer of technology involved. Everest India is not enabled to apply any technology on its own without recourse to the service provider i.e. the assessee. These services have not resulted in any enduring benefit to Everest India by way of any knowledge which could be applied by it on its own in future without depending on the assessee. These are general managerial services which are received by the assessee on recurring basis. Therefore, the test laid down under Article 12(4)(b), in our considered view, are not satisfied in the present factual scenario. Thus, management fee received by the assessee from Everest India is not taxable as FIS under the provisions of India-USA DTAA. Decided in favour of assessee. Addition on account of subscription to published reports and customized reports - miscellaneous services rendered to third party clients - HELD THAT:- As decided in assessee own case [2022 (4) TMI 1062 - ITAT DELHI] assessee does not grant the right to use the copyright. Hence, consideration (subscription fee) received by the assessee is not taxable as royalty under the provisions of Article 12(3) of the India-USA DTAA. Similarly in customized research advisory services the assessee is providing only advisory services through emails or presentations. The output of custom research advisory is not provided through subscription mode or data base access mode and, therefore, the question of access to data base does not arise at all. Further there is no transfer of any copy right to the customers - thus considerations received by the assessee towards customized research advisory services are not taxable under the head Royalty. This ground of appeal is allowed. However, in Assessment Year 2014-15, we find that the Assessing Officer has made addition of Rs. 3,85,10,715/- and the ld. CIT(A) having noted that the facts are identical to Assessment Year 2011-12, upheld the addition to the extent of Rs. 3,73,67,894/-. However, CIT(A) has not given any finding to the addition of Rs. 11,42,821/- being sale of published reports and custom data set. Therefore, in the interest of justice and fair play, we restore this issue to the file of the ld. CIT(A) for limited purpose of adjudicating addition - Ground of assessee allowed for statistical purposes.
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