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2016 (12) TMI 943 - AT - Income TaxTDS u/s 192 - secondment agreement - Addition of payment/reimbursement of amount on account of salary, relocation and other related costs of expatriate employees - Held that:- Hon'ble Delhi High Court in the case of Centrica India Pvt. Ltd. Vs. CIT (2014 (5) TMI 154 - DELHI HIGH COURT ) as well as the decision of the co-ordinate bench of this Tribunal in the case of Foodworld Supermarkets Ltd. Vs. DCIT (2015 (11) TMI 271 - ITAT BANGALORE) is applicable to the facts of the case on hand. The decisions relied upon by the ld. AR are on the point of double deduction of tax at source under Section 192 and further under Section 195 of the Act whereas the issue in the case of the assessee is taxability of the income in the regular assessment and not in the proceedings under Section 201(1) & 201(1A) of the Act. Therefore the TDS deducted by the ITIPL would not change the nature of the payment and chargeability of the same to tax in India. In view of the above facts and circumstances, the decisions of the Hon'ble Delhi High Court as well as co-ordinate bench of this Tribunal, we do not find any error or illegality in the order of authorities below. Receipt on account of transfer of assets assessed as royalty - Held that:- Some of the assets are only power supply equipment of Vanguard and testers. Similarly the servers of IBM and HP are not assessee's own products for captive use but these are products available in the market. Therefore these used products transferred by the assessee to the subsidiary would not constitute transfer of any technology or know how or any other process to bring the same under the definition of royalty as per the provisions of section 9(1)(vii) or as per the provisions of Article XII of the DTAA. There is nothing in the transaction like transfer of any information – technical, industrial, commercialor scientific knowledge or use or right to use any industrial, commercial or scientific equipments but it is only the used assets / computer equipments were transferred by the assessee to ITIPL. It is not the case of the Assessing Officer that these equipments / servers have been specifically programmed by the assessee and not available in the market. Therefore in the facts and circumstances of the case, we are of the considered view that the action of the Assessing Officer in treating the payment as royalty is contrary to the facts as well as the provisions of the Act and the DTAA. Accordingly, we delete the addition made by the Assessing Officer on this count. Transfer of testing boards - Held that:- These testing boards are not the equipments developed by the assessee but these are third party products therefore there is no transfer of any right or right to use in respect of any process or technology know how along with these testing boards. Accordingly in view of our finding on the issue of receipt on transfer of other assets like servers the addition made by the Assessing Officer is deleted. Miscellaneous receipts - Held that:- We find that the Assessing Officer specifically asked the assessee to file the details of receipts in question. In response the assessee submitted that these are reimbursement of expenses. However there was no supporting evidence or complete details regarding the amount in question claimed as miscellaneous reimbursement of expenses. The assessee has not filed any details in support of the claim. In the absence of the requisite details or supportive evidence, we do not find any reason to interfere with the orders of the authorities below. Accordingly, this ground is dismissed.
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