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2021 (4) TMI 344 - AT - Income TaxIncome deemed to accrue or arise in India - Treatment towards IT Support services provided by the assessee to its four Indian affiliates as 'Fees for technical services' (FTS) within the meaning of Article 12 of India-Sweden Double Taxation Avoidance (hereinafter also called 'the DTAA') read with India-Portugal DTAA (via Protocol) - HELD THAT:- As the authorities below have relied on their respective views taken in the assessee's own case for the assessment year 2016-17 [2020 (11) TMI 867 - ITAT PUNE] which has been overturned by the Tribunal, respectfully following the precedent, we hold that the amount received by the assessee from SAPL is not chargeable to tax within the meaning of Article 12 of the DTAA. Assessee also received IT support services fee from Walter Tools India Pvt. Ltd.; Seco Tools India Pt. Ltd.; and Dormer Tools India Pvt. Ltd. - AO held such amount to be chargeable to tax under Article 12 of the DTAA because the assessee could not provide the correct nature of services - we find that similar issue came up for consideration before the Tribunal for the immediately preceding assessment year. Relevant discussion has been made in para nos. 5 and 6 wherein the matter has been restored to the file of AO for fresh determination of the issue in accordance with the direction given by the Tribunal for preceding years. Insofar as the factual scenario for the year under consideration is concerned, both the sides fairly agreed that the same is identical to that for the immediately preceding assessment year, 2016-17. Respectfully following the precedent, we set-aside the impugned order on this score and remit the matter to the file of AO for a fresh determination of the nature of services offered by the assessee to Walter Tools India Pvt. Ltd.; Seco Tools India Pvt. Ltd.; and Dormer Tools India Pvt. Ltd. in the terms as given in the orders for the earlier years and thereafter determine its taxability or otherwise in law after affording due opportunity of hearing to the assessee. Assessee appeal is partly allowed.
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