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Showing 201 to 220 of 1440 Records
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2023 (5) TMI 1240
Money Laundering - closure of proceedings - petitioner would contend that the ‘B’ report has been filed in favour of the petitioner by the investigating agency and the concerned court has after hearing the complainant accepted the ‘B’ report and closed the proceedings.
HELD THAT:- The issue that has fallen for consideration need not detain this Court for long or delve deep into the matter as the three Judge bench of the Apex Court in the case of VIJAY MADANLAL CHOUDHARY & OTHERS VS UNION OF INDIA & OTHERS [2022 (7) TMI 1316 - Supreme Court] has held In view of special mechanism envisaged by the 2002 Act, ECIR cannot be equated with an FIR under the 1973 Code. ECIR is an internal document of the ED and the fact that FIR in respect of scheduled offence has not been recorded does not come in the way of the Authorities referred to in Section 48 to commence inquiry/investigation for initiating “civil action” of “provisional attachment” of property being proceeds of crime.
The Apex Court in the afore quoted paragraph has clearly held that if the accused in the predicate case gets acquitted on three circumstances, (1) by an order of acquittal after full blown trial, (2) if the proceedings are quashed by the High Court in exercise of its jurisdiction under Section 482 Cr.PC, or (3) if the accused gets discharged of the offences. If these circumstances are met, the proceedings in the Enforcement Case Information Report (ECIR) cannot be permitted to be continued. The circumstances narrated by the Apex Court (supra) is not the one that is found in the case at hand.
The petitioner is neither acquitted after a full blown trial nor discharged from the array of accused and the proceedings against him are not quashed by this Court in exercise of its jurisdiction under Section 482 of the Cr.P.C. The circumstance in which the petitioner is placed though does not form a part of the Apex Court’s finding, the effect is the same. The cause is different, but the effect is to what the Apex Court has held.
The closure of the proceedings on acceptance of ‘B’ report and such acceptance becoming final would be closure of proceedings akin to a discharge, as in both the cases no trial is held. Therefore, the petitioner does become entitled to the benefit of the finding of the Apex Court supra and his entitlement leads to obliteration of the proceedings against him as initiated by the Enforcement Directorate - petition allowed.
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2023 (5) TMI 1239
Ex parte order passed by the Tribunal - assessee has demonstrated cause on medical grounds for not appearing before the Bench on 02.08.2022 - HELD THAT:- An ex parte order passed by the Tribunal is to be recalled and heard afresh in case, an assessee is able to adduce sufficient and reasonable cause for non-attending and non-prosecution of its appeal.
In this case, the assessee already proved the medical emergency and late filing of the adjournment letter. In our considered opinion, the above order is to be recalled and fresh hearing is to be accorded as per Rule 24 of the Income Tax Appellate Tribunal Rules. Thus the ex parte order dated 21.10.2022 is hereby recalled and the case is to be fixed for hearing on 20.06.2023, notice be served on the both sides and the appeal is to be argued on merits without seeking further adjournment.
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2023 (5) TMI 1238
Deduction u/s 80P - assessee is a Credit Cooperative Society providing credit facilities to its members - Deduction denied on the ground that the assessee is neither a Primary Agricultural Credit Society nor a Primary Cooperative Agricultural & Rural Development Bank but is a Cooperative Bank - HELD THAT:- As decided in own case [2016 (1) TMI 1455 - ITAT MUMBAI] Assessee cannot be termed as Banks/Cooperative Banks and that being a credit society, they are entitled to exemption under Section 80(P)(2) of the Income Tax Act. Such finding of fact is not required to be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India. Even otherwise, on merits also and taking into consideration the CBDT Circulars and even the definition of Bank under the Banking Regulation Act, the respondent/Assessee cannot be said to be Co-operative Bank/Bank and, therefore, Section 80(P)(4) shall not be applicable and that the respondent/Assessee shall be entitled to exemption/benefit under Section 80(P)(2) - Decided in favour of assessee.
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2023 (5) TMI 1237
Excess claim of Depreciation - appellant had claimed depreciation on assets under “Finance Lease” - Scope of AS-19 issued by the ICAI - determination of ownership of asset - CIT-A deleted the addition - HELD THAT:- We find that the Ld. CIT(A) has duly taken the note that after issuance of AS-19 issued by the ICAI, the CBDT vide Circular No. 2/2001 dated 9 February 2011 has clarified that capitalization of assets acquired under the finance lease by the lessees in their books of account will not have any bearing on the allowance of depreciation on those assets u/s 32 of the Income Tax Act and also states that the ownership of the asset is determined by the terms of contract between the lessor and the lessee.
As per the above circular the owner is entitled to depreciation, whether he is lessee or lessor, depending upon the terms of the contract.
CIT(A) taken the note of case of ICDS Ltd. [2013 (1) TMI 344 - SUPREME COURT] wherein as reaffirmed the position that in a leasing transaction it is the lessor and not the lessee, who is entitled to claim depreciation on the leased assets. Hence, the order of the Ld. CIT(A) is in accordance with law - Decided against revenue.
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2023 (5) TMI 1236
TP Adjustment - Comparable selection - inclusion of Jeevan Scientific Technologies Ltd. in the list of comparable for determining the ALP of international transactions - HELD THAT:- As seen from the financial of M/s. Jeevan Scientific Technologies Ltd. for the assessment year 2011-12, the total income from BPO operations was only Rs.79.21 lakhs., thus this company M/s. Jeevan Scientific Technologies Ltd. cannot be included as comparable to determine the ALP of international transactions. Accordingly, we direct the AO/TPO to exclude M/s. Jeevan Scientific Technologies Ltd. from the list of comparables and directed accordingly.
M/s. Universal Print Systems Ltd. - Contention of ld. A.R. is that the total RPT transactions in this case is more than 25%, as such this company cannot be included as a comparable - We direct the AO/TPO to pass the consequent order in conformity with the Tribunal order extracted herein above. This ground of assessee is partly allowed for statistical purposes.
M/s. Universal Print Systems Ltd. - As the required information u/s 133(6) of the Act is not made available to the TPO, in such circumstances, T.P. adjustment on this count cannot be made reasonable or accurately made in this regard. Accordingly, this company is to be excluded from the list of comparable companies as reliance placed by this Tribunal while deciding this issue in assessee’s own case on the decision of Zyme Solutions Pvt. Ltd. [2018 (11) TMI 1793 - ITAT BENGALURU]. Accordingly, we direct the AO/TPO to exclude this company.
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2023 (5) TMI 1235
Assessment u/s 153A - incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search or not? - HELD THAT:- As decided in ABHISAR BUILDWELL P. LTD. [2023 (4) TMI 1056 - SUPREME COURT] no addition can be made in respect of completed/ unabated assessment in absence of any incriminating material. Also see KABUL CHAWLA [2015 (9) TMI 80 - DELHI HIGH COURT] and SAUMYA CONSTRUCTION PVT. LTD. [2016 (7) TMI 911 - GUJARAT HIGH COURT] - No substantial question of law.
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2023 (5) TMI 1234
Seeking for interim order - HELD THAT:- There is no scope of passing any interim order in the matter and the issues involved require affidavits from the respondents for final adjudication.
List the matter for final hearing in the monthly list of August, 2023.
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2023 (5) TMI 1233
Auction - rejection of bid - Disqualification of petitioner to participate in the tender/auction process - seeking to issue direction to opposite party no.4 to treat the bid of the petitioner as valid and reconsider the entire tender process from the stage of considering the technical bid afresh and award the tender in favour of the petitioner within a stipulated period.
HELD THAT:- There is no dispute that the petitioner had submitted his bid quoting higher price of Rs.685/-and also furnished a letter of the bank without incorporating the bank guarantee as required under Rule-27(4)(iv) of the OMMC Rules, 2016. Once the bid submitted by the petitioner was not incorporated by the bank guarantee or the previous year’s income tax return, it was defective one and cannot be entertained as per the tender notice. It was also clarified in the tender notice that in absence of any documents, as enumerated in clause-1 to 14, the application submitted by the bidder would not be taken into consideration. Therefore, fully knowing the conditions stipulated in the tender notice, the petitioner should not have filed this writ petition claiming consideration of his bid on the ground that he had quoted higher price than opposite party no.5.
In TIRUMALA TIRUPATI DEVASTHANAMS VERSUS K. JOTHEESWARA PILLAI (D) BY LRS & OTHERS [2007 (5) TMI 594 - SUPREME COURT], the apex Court held that the principle on which the writ of mandamus can be issued are well settled and referring to BIHAR EASTERN GANGETIC FISHERMEN COOPERATIVE SOCIETY LTD. VERSUS SIPAHI SINGH [1977 (9) TMI 114 - SUPREME COURT], the apex Court observed that The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.
In view of the ratio decided in aforementioned judgment, it is made clear that writ of mandamus can be issued where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. Furthermore, a writ of mandamus can be issued to compel the authorities to do something and for that it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance - As such, the same is absolutely absent in the present case in view of the fact that the petitioner having not submitted his bid along with bank guarantee, as required in terms of the conditions stipulated in the advertisement and he has not discharged his duty in terms of Rule-27(4)(iv) of OMMC Rules, 2016 read with the conditions stipulated in the advertisement.
If the tender notice specifies certain conditions and the same have not been adhered to, the bid submitted by the petitioner cannot be taken into consideration. Therefore, the Tahasildar, Jamda is well justified in rejecting the bid of the petitioner, which has been confirmed by the Sub-Collector, Bamanghaty, Rairangpur in appeal. Therefore, this Court is not inclined to entertain this writ petition.
The writ petition merits no consideration and the same is hereby dismissed.
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2023 (5) TMI 1232
Refund of Input Tax Credit (ITC) - goods supplied to SEZ Units (zero-rated supply) effected during the period of August 2017 to March 2018 - rejection on the ground that it was time-barred - HELD THAT:- It is stated that in the present case, the zero-rated supplies are stated to have been made between August 2017 to March 2018. According to the petitioner, the refund in respect of the supplies made during the period of February 2018 to March 2018, is within the period of limitation; if the period after 01.03.2020 to 28.02.2022, is excluded - It is apparent that neither the Adjudicating Authority nor the Appellate Authority has considered the petitioner’s claim that the delay is required to be condoned.
It is considered apposite to set aside the orders dated 26.05.2021 and 25.02.2022 impugned in this petition, and remand the matter to the Adjudicating Authority for considering afresh - petition allowed by way of remand.
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2023 (5) TMI 1231
Maintainability of petition - availability of alternative remedy of appeal - Cancellation of GST registration of petitioner - HELD THAT:- The 2nd respondent had specifically directed the petitioner to show cause as to why the GST registration of the petitioner shall not be cancelled because the petitioner does not have a building number in the registered place of the business and a valid lease agreement. In response to Ext.P13 notice, the petitioner submitted Ext.P14 reply - On going through Ext.P14 reply, the petitioner had only submitted the building tax receipt as evidenced by reference No.4 in Ext.P14. But, the petitioner did not produce the valid lease agreement. Consequently, the 2nd respondent has passed Ext.P15 order, cancelling the registration of the petitioner.
The learned Government Pleader submitted that if the petitioner is aggrieved by Ext.P15, he has a remedy under Section 13 of the GST Act, to seek for rectification of Ext.P15 order or file an appeal under Section 107 of the GST Act - In the light of the alternative statutory remedy available to the petitioner, the writ petition not entertained - petition dismissed.
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2023 (5) TMI 1230
Attachment of Bank Accounts of petitioner - evasion of GST while providing an online payment gateway (Aggregator Services) under the trade name Onion-Pay - respondents allege that that ZIPL was supporting illegal gambling products such as ‘Teen Patti’, ‘Roulette’, ‘Ludo’, ‘Matrix 5’ and all merchants associated with the payment gateway were suspected to be fake and shell companies - creation of web of fake gaming merchant entities, which were operated and managed by ZIPL.
Whether the impugned orders are in accordance with Section 83 of the CGST Act?
HELD THAT:- There is no issue regarding the CGST liability of ZIPL, it is apparent that ZIPL’s bank accounts could not be attached for any amount due and payable to the merchants using the ZIPL’s platform. The provisions of Section 83 of the CGST Act can be invoked for attaching the assets and bank accounts of a taxable person or a person specified under Section 122(1A) of the CGST Act, if in the opinion of the Commissioner it is necessary to do so for the purpose of protecting the interest of government revenue. Thus, the bank accounts of ZIPL cannot be attached for securing the revenue of another taxable person. It is implicit that the bank accounts and assets of only those taxable person or persons specified in Section 122(1A) of the CGST Act can be attached who may be liable for payment of any government revenue and the Commissioner is of the opinion that it is necessary to attach their assets in the interest of government revenue. A debt owed by any person to the taxable person, whose assets or bank accounts are liable to be attached under Section 83 of the CGST Act, can be attached being an asset of such a person. But the bank account of the person owing such debt cannot be subject to a provisional attachment order under Section 83 of the CGST Act.
This Court considers it apposite to dispose of the present petition by setting aside the impugned orders attaching ZIPL’s bank accounts albeit with the further direction that ZIPL shall make payments due to various merchants directly in their respective bank accounts as disclosed by ZIPL to the respondents and as recorded in the impugned order dated 01.02.2023. Insofar as the remaining amount of ₹69.92 crores is concerned, ZIPL shall transfer the same to its current account.
Petition disposed off.
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2023 (5) TMI 1229
Refund claim - delayed application of refund - Department does not dispute the applicability of circular dated 5th July, 2022 as well as the adjudication made by this Court in [2022 (3) TMI 578 - ALLAHABAD HIGH COUR] in the facts of the present case.
HELD THAT:- In that view of the matter and for the reasons recorded by this Court in Writ Tax No. 173 of 2022, this writ petition also succeeds and is disposed of on same terms. The order impugned dated 27.10.2021 stands quashed. Respondent no. 4 is directed to revisit the issue in light of the above observations, by passing a fresh order, within a period of six weeks from the date of presentation of a certified copy of this order.
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2023 (5) TMI 1228
Reopening of assessment u/s 147 - validity of order u/s 148A(d) - concerned ACIT dropped the proceedings, while pertaining to the assessment year 2015-16 opted to proceed further under Section 148A - consistency (or lack thereof) in the decision making - bogus sale entries - as argued two contradictory final outcomes pertaining to assessment years 2015-16 and 2016-17 clearly show not just non-application of mind but even extreme arbitrariness, more so, because the officer serving as the decision making authority of ACIT is the same officer - HELD THAT:- As significant to note that in order dated 28.07.2022, while dropping the proceedings, the ACIT concerned recorded his analysis of the documentary material; but in the subsequent order dated 31.07.2022, while deciding to proceed further u/s 148A the same ACIT recorded not even a whiff of analysis, if any, carried out by him of the documentary record and simply reiterated the allegations borne out of the alleged admission of Shri Rajeev Khushwaha.
There is no dispute to the legal proposition as submitted by counsel for respondents revenue that the doctrine of res judicata does not apply to income tax proceedings pertaining to different assessment years since each assessment year is a separate assessment unit in itself if rests in separate factual scenario.
In the case of J.K. Charitable Trust, Kamal Tower, Kanpur [2008 (11) TMI 8 - SUPREME COURT] the basic question framed by the Hon’ble Supreme Court was as to whether the revenue could be precluded from filing an appeal even though in respect of some other years, involving identical disputes, no appeal was filed. The Hon’ble Supreme Court after elaborate discussion through multiple judicial precedents arrived at a conclusion that fact situation in all the assessment years was same and dismissed the appeal.
The issue before us is the consistency (or lack thereof) in the decision making. There was nothing wrong if in the impugned order dated 31.07.2022 the ACIT concerned had taken a view different from the view taken in order dated 28.07.2022, provided the diversion was supported by way of cogent reasoning.
Consistency does not mean putting iron fetters on the subsequent decision making; it only means expecting that a deviation from the previous decision in similar set of circumstances is explained by way of cogent and rational reasons. In the present case, the decision taken first in point of time (order dated 28.07.2022) was a reasoned decision, based on the analysis of material on record, but the decision taken subsequently (order dated 31.07.2022) not just took a view completely inconsistent with the previous view but even without an iota of reason.
Respondent’s argument of two different sanctioning authorities is concerned, no doubt order dated 28.07.2022 was issued with the approval of Principal Commissioner Income Tax-10 and order dated 31.07.2022 was issued with the approval of Principal Chief Commissioner of Income Tax, but the satisfaction recorded in both orders was of same Assistant Commissioner of Income Tax. There is nothing on record to suggest even feebly that the latter sanctioning authority was apprised of the earlier view taken in order dated 28.07.2022. An assessee, deals with the income tax department as a whole, like a body and not its individual organs, especially where left hand does not know what right had sanctioned.
The impugned notice and order suffer two infirmities, namely the same proceed on a view inconsistent with the earlier order despite the facts and circumstances being similar and the ACIT concerned did not support the said subsequent divergent view with reasoning - unable to uphold the impugned notice and order u/s 148 so the same are set aside - Decided in favour of assessee.
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2023 (5) TMI 1227
Review petition - Reopening of assessment u/s 147 - petitioner/assessee was a “non-filer” - reasons to believe that the cash deposit had been made by the petitioner/assessee from undisclosed sources, which had escaped assessment - HELD THAT:- AO, it appears, received two pieces of information - First, that the said amount had been deposited in the aforementioned bank account, and second, that the petitioner/assessee had not filed a return. The second piece of information was not accurate - once the petitioner/assessee informed the AO that a return had been filed, it came to light that no scrutiny-assessment has taken place.
The return, concededly, had been processed u/s 143(1) - AO, thus, was of the view that the matter required further enquiry and investigation, and therefore, proceeded further after disposing of the objections raised by the petitioner/assessee.
The objections were disposed of by the AO on 27.11.2019. It was only thereafter that a notice u/s 142(1) was issued on 27.11.2019. Therefore, the AO having examined the matter holistically, concluded that the return filed by the petitioner could be accepted.
We find Petitioners argument that reassessment proceedings were commenced because the AO was under the impression that the return had not been filed does not give a complete picture of the background facts. The other facet which triggered enquiry u/s 148 was the deposit of cash by the petitioner/assessee in the aforementioned bank accounts.
It cannot be said that the notice under Section 148 of the Act was invalid. This is evident upon a bare perusal of the reasons given by the AO for reopening the assessment. Thus, in our opinion, it cannot be said that the impugned notices had no basis for triggering an enquiry, and therefore, were invalid.
Although we had closed the writ petition, we granted the petitioner/assessee leeway to take recourse to a statutory remedy as per law, in case he was still aggrieved by the assessment order passed in his case. There is, to our minds, no error apparent on the face of the record. We find no merit in the review petition
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2023 (5) TMI 1226
Reopening of assessment - legality and validity of notice u/s 148 and order u/s 148A(d) - unexplained loan transaction - HELD THAT:- It appears from record which AO has annexed to the notice u/s 148A(b) and order u/s 148A(d) that some of the documents which established the involvement of the petitioner in such type of transactions with the said Anil Kasera and there are names of many other persons who are involved in this type of transactions adopting same modus operandi. There is also finding of the assessing officer in the impugned order u/s 148A(d) that a sum representing in the form of entry or entries in the books of account (loan transaction) has escaped income in this case.
All the aforesaid findings in the impugned order are based on material evidence which cannot be scrutinised by a writ court in exercise of its constitutional writ jurisdiction under Article 226 of the Constitution of India and be substituted with its own findings. Recently this Court has noticed that several writ petitions have been filed involving similar nature of huge unaccounted cash transactions where modus operandi is the same and involving the same broker Anil Kasera.
This court, considering the nature of huge financial scam, is not inclined to entertain this writ petition by exercising its constitutional writ jurisdiction under Article 226 of the Constitution of India. Principal Chief Commissioner of Income Tax, West Bengal & Sikkim is directed to refer this case along with all other cases involving Anil Kasera where similar modus operandi has been adopted relating to unaccounted cash loan, to the Enforcement Directorate (ED) and file compliance report before this Court on 13th June, 2023.
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2023 (5) TMI 1225
Reopening of assessment - validity of order passed u/s 148A(d) - reopening on new set of facts - giving less than three days time to the assessee to respond - typographical errors in the order dated 4th May, 2023 [2023 (5) TMI 1115 - CALCUTTA HIGH COURT]
HELD THAT:- In paragraph 7 of the said order, the date shall be mentioned “21.03.2022” instead of “27.03.2022”.
In paragraph 8 of the said order, the date shall be mentioned “20.03.2023” instead of “23.02.2023”.
In paragraph 14 at page 5 of the said order, the words “fifteen days” shall be mentioned instead of the words “ten days”.
Let the said corrections be carried out and this order shall form part of the order dated 4th May, 2023. Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously upon compliance of all legal formalities.
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2023 (5) TMI 1224
Exemption u/s 11 - registration u/s 12AA was refused by holding that the assessee institution did not satisfy the registering authority with the genuineness of its activities and it was held that the assessee Trust had generated surplus (profit) out of their total receipts - ITAT grant registration to the assessee as applied by the assessee - HELD THAT:- As decided in M/s Queen’s Educational Society [2015 (3) TMI 619 - SUPREME COURT] as per 13th proviso to Section 10(23C) is of great importance in that assessing authorities must continuously monitor from assessment year to assessment year whether such institutions continue to apply their income and invest or deposit their funds in accordance with the law laid down. Further, it is of great importance that the activities of such institutions be looked at carefully. If they are not genuine, or are not being carried out in accordance with all or any of the conditions subject to which approval has been given, such approval and exemption must forthwith be withdrawn. All these cases are disposed of making it clear that revenue is at liberty to pass fresh orders if such necessity is felt after taking into consideration the various provisions of law contained in Section 10(23C) read with section 11 of the Income Tax Act.
In view of the judgment passed by the Supreme Court referred hereinabove, the issue in hand is squarely covered. No substantial question of law arises for consideration as the Income Tax Appellate Tribunal, Amritsar while allowing the appeal has considered all the aspects.
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2023 (5) TMI 1223
Penalty imposed u/s. 271(1)(c) - delay in compliance with Regulation 8(3) of SAST Regulations, 1997 - amount paid to SEBI - HELD THAT:- In any case of the matter, whether the payment made to SEBI for violation of certain SEBI Regulations is on account of any offense or is prohibited by law, as per the language of Explanation 1 to section 37 of the Act, in our view, is a highly debatable issue as there are judicial precedents holding that penalty paid for delay in various obligations to SEBI/Stock Exchange/RBI does not amount to infringement/infraction of any law.
Therefore, merely because assessee accepted the disallowance, it will not lead to the conclusion that the assessee has furnished inaccurate particulars of income. Penalty imposed u/s. 271(1)(c) in the facts of the present appeal is unsustainable. Accordingly, we delete the penalty imposed. Appeal of assessee allowed.
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2023 (5) TMI 1222
Reopening of assessment u/s 147 - accommodation entry receipts - reason to believe - HELD THAT:- It is pertinent to mention that even at the time of initiating the reassessment proceedings the AO himself was not sure about the mode of accommodation entry/allege transactions therefore reason to believe had no legs to stand. Therefore ground of assessee deserve to be allowed.
Valid approval u/s. 151 - HELD THAT:- As relying on M/S N.C. CABLES LTD. [2017 (1) TMI 1036 - DELHI HIGH COURT] in the present case also the exercise of approving powers u/s. 151 of the Act appears to have been only ritualistic and formal rather than based on application of mind to the material placed by the AO before the approving authority which could lead to a valid and meaning full approval. Therefore notice u/s. 148 of the Act without obtaining valid approval u/s. 151 of the Act and all consequent reassessment and first appellate order are not validly sustainable and deserve to be quashed - Decided in favour of assessee.
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2023 (5) TMI 1221
Addition on account of services rendered by the assessee to its AE in India - fees for the services rendered by the assessee from outside India to BTPL - whether FTS under the provisions of Article 13(4)(c) of the India-UK DTAA? - Satisfaction of “make available” clause - HELD THAT:- It is an undisputed fact that the assessee is a tax resident of UK and therefore has opted to be governed by the provisions of India-UK DTAA being more beneficial to it under the provisions of section 90 of the Act.
Services provided by the assessee includes administrative services, accounting services, legal services and other support services that are ancillary to the functioning of corporate management function of BTPL. These services are thus essentially in the nature of managerial services which are in our considered view outside the scope of the meaning of FTS under Article 13(4) of the India-UK DTAA.
A mere provision of service may require technical knowledge by service provider but that would not per se mean that such technical knowledge has been made available to the service recipient. Therefore, the assistance, support or advice provided by the assessee to BTPL shall not per se be considered to make technology available since the assessee did not make available any technical knowledge, experience or skill to BTPL by way of rendering the above support services to BTPL. Article 13(4) of the India–UK DTAA does not apply to the assessee’s case and hence the consideration could not be included in FTS.
Services rendered by the assessee to BTPL do not satisfy “make available” clause as envisaged under Article 13(4)(c) of the India-UK DTAA to fall within the scope of FTS. Hence, the fees for the services rendered by the assessee from outside India to BTPL are not in the nature of FTS as per the provisions of Article 13(4)(c) of India-UK DTAA. Decided in favour of the assessee.
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