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2023 (8) TMI 1182 - AT - Income TaxDetermination of fixed place of permanent establishment of assessee in India - HELD THAT:- As decided in assessee own case [2013 (11) TMI 564 - ITAT DELHI] employees of the assessee frequently visited the premises of CIS to provide supervision, direction and control over the operations of CIS and such employees had a fixed place of business at their disposal. CIS was practically the projection of assessee’s business in India and carried out its business under the control and guidance of the assessee and without assuming any significant risk in relation to such functions. Besides assessee has also provided certain hardware and software assets on free of cost basis to CIS. Thus, the findings of the CIT(A) that assessee has a fixed place PE in India under Article 5(1) of the DTAA is upheld. The ground is decided against the assessee and the order of Ld. CIT(A) in holding that assessee has a fixed place PE in India is upheld. Dependent Agent PE in India - HELD THAT:- This issue is decided in favour of assessee in A.Y. 2006-07 [2013 (11) TMI 564 - ITAT DELHI] as held even assuming, CIS is not an agent of CMC, it does not have any authority to conclude contracts or secure orders on behalf of CMC and hence CMC does not have a Dependent Agent PE in India. Taxability of link charges/IPLC as royalty - HELD THAT:- As decided in assessee own case for A.Y. 2006-07 [2013 (11) TMI 564 - ITAT DELHI] there is no transfer of the right to use, either to the assessee or to CIS. The assessee has merely procured a service and provided the same to CIS, no part of equipment was leased out to CIS. Even otherwise, the payment is in the nature of reimbursement of expenses and accordingly not taxable in the hands of the assessee. Therefore, it is held, that the said payments do not constitute Royalty under the provisions of Article 12 of the tax treaty and the ground is allowed in favour of assessee.
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