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2021 (8) TMI 363 - AT - Income TaxIncome taxable in India - Addition on Account of Royalty and/or FIS - PE in India - DRP confirming the action of the AO in bringing to tax 90% of the receipts as "Royalties” under the provisions of Article 12(3) of the Double Taxation Avoidance Agreement between India and USA ('DTAA') and thus, liable to tax in India - assessee is an entity incorporated in United States of America (USA) - HELD THAT:- As stated by the ld. A.R, and rightly so, in the preceding years i.e A.Y. 2012-13 and A.Y. 2013-14 too the arrangement between the assessee and Wockhardt Hospital Limited was regulated by the terms and conditions of the Master Services Agreement, dated 31.01.2011. In the backdrop of the aforesaid facts, we are of the considered view that the issue as to whether or not the amount received by the assessee from Wockhardt Hospital Limited could be brought to tax in its hands as royalty and/or FIS had been decided by the Tribunal while disposing off the aforementioned appeals in in A.Y. 2012-13 [2018 (5) TMI 2077 - ITAT MUMBAI] and in A.Y. 2013-14,[2018 (11) TMI 1862 - ITAT MUMBAI] wherein held that the consideration received by the assessee pursuant to the Master Services Agreement”, dated 31.01.2011 was neither in the nature of royalty nor FTS, but was in the nature of business profits, which in the absence of the assessee’s PE in India could not be brought to tax in India. Short credit of TDS - HELD THAT:- As the grievance of the assessee would require verification of facts, therefore, in all fairness we herein direct the A.O to verify the factual position and in case the claim of the assessee is found to be in order, then, allow the credit for the deficit amount of TDS to the assessee as per extant law. The Ground of appeal is allowed for statistical purposes. Levy of interest u/s 234B and 234D - HELD THAT:- As the levy of interest is mandatory as held by the Hon’ble Supreme Court in the case of CIT Vs. Anjum H.M. Ghaswala [2001 (10) TMI 4 - SUPREME COURT] therefore, we herein direct the A.O to re-determine the interest liability of the assessee while giving effect to our appellate order. The Ground of appeal is allowed for statistical purposes. Incorrect recovery of interest u/s 244A - HELD THAT:- Claim of the assessee that the A.O had erred in recovering interest u/s 244A of the Act require verification of facts, therefore, in all fairness we herein direct the A.O to verify the factual position. In case the claim of the assessee is found to be in order, then, the consequential relief be allowed to the assessee. The Ground of appeal allowed for statistical purposes.
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