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2021 (2) TMI 1370 - AT - Income TaxTaxability of income in India - Determination of taxability of the payment received as a consideration for data transmission services - royalty receipts - PE in India or not? - whether assessable as business profits in India? - whether AO erred in holding that the payments received by the Appellant as consideration for data transmission services are in the nature of ‘Royalty’ as defined under section 9(1)(vi) of the Income Tax Act and Article 12(4) of the DTAA. HELD THAT:- The matter is in litigation since last many years starting AY 2006-07 and upto AY 2014-15. The AO in his draft order, brought out that the department is in appeal before Hon'ble Supreme Court against the judgment of Hon'ble Delhi High Court in case of the assessee which has been admitted. It has to be borne in mind that the panel is an extension of the assessment process and the AO is now bound by the directions of DRP. Accordingly, the matter needs to be kept alive in view of its pendency before the Apex Court. The panel accordingly upholds the adjustment made by the AO in this matter. The objections are rejected. Before us, the ld. CIT DR fairly submitted that the additions have been made as the revenue is filed appeal against the order of the Hon’ble Jurisdictional High Court and the matter is being agitated before the Hon’ble Apex Court. From the above, it is clear that the addition made by the AO is due to the fact that the revenue is agitating the issue before the Hon’ble Apex Court. Since, the matter stands adjudicated in favour of the assessee as on today, we hold that the decision of the Hon’ble Jurisdictional High Court is applicable to the appeal before us. Appeal of assessee allowed.
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