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2023 (7) TMI 134 - BOMBAY HIGH COURTTaxability of foreign income in India - business connection’ in India or not? - subscription services are provided by the said Hong Kong Company - The website facilitates Indian suppliers to do business online through a global trade market place. - India and Hong Kong do not have a DTAA - as argued assessee has a very limited role which is merely confined to providing facility of posting and advertising or displaying of the information about the product and services in the Electronic Form - benefit of the India-Singapore DTAA - Whether assessee is merely an intermediary between the Indian subscribers and one Alibaba.com Hong Kong Limited? - ITAT came to the conclusion that when Infomedia is not a dependent agent, then, in view of Explanation 2, r/w proviso to section 9(1)(i), the income of the assessee cannot be held to be deemed to accrue or arise in India in terms of section 9(1)(i) of the Act HELD THAT:- ITAT has come to the conclusion that activities highlighted by the AO are not carried out by the assessee at all and the services provided by the assessee to the Indian Customers were merely that of displaying / storing of data of Indian Subscribers, such services are limited to provision of E-commerce platform for advertising of products or services in India. ITAT came to the factual finding that the arrangement between assessee and the subscribers was for the provision of services for standard facility and not for “rendering of any technical, managerial or consultancy services” as provided in section 9(1)(vii) r/w Explanation 2 of the Act. ITAT has also relied upon the judgment of Kotak Securities Ltd. [2016 (3) TMI 1026 - SUPREME COURT] constant human endeavour or human intervention is essential requirement for treating the rendering of services as “technical”. If any technology or a process has been put to operation automatically, wherein it operates without much human interface or intervention, then such technology per se cannot be held as rendering of technical services by human skills. Where there is a standard facility made available for public at large, without giving any special or exclusive services whether to a particular client or class of clients, then it cannot be brought within the ambit of technical services as stipulated in Explanation 2 to section 9(1)(vii). Therefore, on facts, even these grounds of the Revenue were correctly rejected in coming to a finding that no technical services had been provided by the Assessee to treat the subscription fees as to be in the nature of fees for technical services The entire subject matter of the appeal is fact based and in our view, no substantial question of law arises.
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