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2023 (1) TMI 1234 - AT - Income TaxIncome deemed to accrue or arise in India - Permanent Establishment (PE) in India under Article 5 of India – USA DTAA - attribution of profit to the PE whether the receipts from IPLC/link charges are taxable as royalty in India or not? - HELD THAT:- As all the issues relating to existence of PE and attribution of profit have been decided/resolved in assessee’s own case in earlier assessment years. Therefore, the decision of the Tribunal, as referred will squarely apply to the present appeals as well. Though, learned counsel for the assessee attempted to make out a case that there was no fixed place PE in the year under consideration, however, we are not convinced as the arrangement between the assessee and PE remains identical with earlier years. As regards attribution of profit to PE, we direct the Assessing Officer to follow the directions of the Tribunal in assessment years 2006-07 to 2013-14. Taxability of link charges - As this issue has also been decided by the Tribunal in assessee’s own case in assessment years 2013-14 [2020 (11) TMI 1101 - ITAT DELHI] relying on New Skies Satellite BV [2016 (2) TMI 415 - DELHI HIGH COURT] held that the amendment in section 9 will not affect the DTAA, thus find that the payment of link charges received by the Appellant from Conuergys India Services Rut. Ltd. would not qualify as “process” royalty in terms of Article 12 of lndia-US 39 DTAA. Hence, the ground of appeal allowed.
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