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2020 (9) TMI 773 - HC - Income TaxTDS u/s 195 - payments made to Opportunity International as Fees for Technical Services - disallowance under Section 40(a)(ia) - provisions of Section 90 of the Income Tax Act read with the Double Taxation Avoidance Agreement between India and USA - HELD THAT:- Admittedly, the issue relating to Section 90 of the Income Tax Act read with Double Taxation Avoidance Agreement between India and United States of America has not been raised before the Assessing Officer or before the CIT (Appeals) or before the ITAT. But for the first time, the appellant/assessee has raised the issue before this Court and the said issue has also been raised in the substantial questions of law - There is no occasion to decide this issue viz., as to whether the disallowance under Section 40(a)(ia) without considering the provisions of Section 90 of the Income Tax Act read with Double Taxation Avoidance Agreement between India and USA, is correct or not, since the said point has not been discussed before the authorities below. The contention of the appellant/assessee is that as per Section 90 of the Act, the assessee is not liable to deduct the tax at source as the assessee did not make available any technical knowledge and therefore, the payment need not be treated as Fees for Technical Services. Admittedly, this point has not been raised before any of the authorities below, but for the first time, this point is raised as substantial question of law, hence, there is no occasion to deal with the said issue in this Tax Case Appeal. This is a fit case for remitting the matter back to the Assessing Officer for considering the issue by taking into account the claim made by the assessee. Assessing Officer, after giving due opportunity to the appellant, shall decide the matter in accordance with law.
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