TMI Blog2010 (4) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... like financial/forex/commodity market and royalty for use of equipments such as shared printer, matrix etc., and accordingly, entire receipts are liable to tax at the rate of 20 per cent on gross basis under section 44D read with section 1154A. 3. The relevant facts which reveal from the records are as under : 3.1 The assessee is a branch or a company incorporated in Singapore and it is wholly owned subsidiary of Telerate Holdings Inc. The assessee company is a tax resident of Singapore. The activities of the assessee comprises of dissemination of information with respect to various markets including Equity Market, Fixed Income Market, Commodity Market, Future and Option Market, Forex Market, Derivates and Money Market. The assessee collects orders for various customers for subscription of various online real time products, created by the HO, related to financial/forex/commodity market. On the payment of subscription, the customer is provided with information, depending upon the products they are subscribed such as ( i ) TW (financial) i.e. products providing international financial information on foreign exchange market, money markets and market reports; ( ii ) TW (com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial skill or knowledge is required to disseminate the market information. The assessee is also contended that the online real-time information disseminated to the subscriber cannot be classified as managerial services as no services are provided by the assessee relating to the management of the subscriber s organisation. The assessee has also contended that the same cannot be put to the category for the clarification of consultancy. 3.5 In sum and substance, the contention of the assessee was that the income generated for the subscription fees for providing data or information to the customers is not fees for technical services as per Explanation 2 to section 9(1)( vii ) of the Act. The assessee also contended that the information is transmitted by the assessee via V-SAT, which are not owned by them, but are taken on rentals from the SAT operators. Using V-SAT connection, the subscribers can also access the information stored by its client in their database apart from on line information. 4. The Assessing Officer rejected the contentions of the assessee and he is of the opinion that the services provided by the assessee company are clearly consultancy and technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Singapore. The ld. counsel of the assessee relied on the decision of the Hon ble Madras High Court in the case of Skycell Communications Ltd. v. Dy. CIT [2001] 251 ITR 53 to explain the meaning of the fees for technical services . He, therefore, pleaded that as the issue has already considered by the Tribunal and the facts are identical, the entire activity of the assessee may be treated as business activity and suitable direction may be given to the Assessing Officer that the same should be assessed as business income provided under Article 12 and 7(3) of the Tax Treaty between India and Singapore and to compute the same in accordance with section 28 to 43C of the Act. 6.3 Per contra; the ld. DR supported the order of the ld. CIT(A). The ld. DR fairly admitted that there is no difference in the facts relating to the activity of the assessee in the assessment year 1997-98 to assessment year 2001-02. 7. We have perused the copy of the order of the Tribunal filed by the ld. counsel of the assessee in assessee s own case for the assessment year 1997-98 being ITA No. 558/Mum./2001 dated 18-2-2010. The operative part of the order of the Tribunal reads as under : "7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjected to tax under section 44D, read with section 115 either. ( iv )Scope of fees for technical services under article 12(4)( b ) of DTAA does not cover consultancy service unless those services are technical in nature. ( v )In case of non-technical consultancy services of instant nature, for computing profits attributable to permanent establishment in India limitation on deduction of expenses under section 44D would not be applicable. ( vi )Limitations on deduction of expenses can only be under article 7(3) of DTAA, which can only be such as are applicable for business profits other than profits from royalties and fees for technical services." 12. We find that the facts and circumstances of the case before us are mutatis mutandis similar to those decided by the Tribunal in the case of Bostan Consulting ( supra ), therefore following the decision of the co-ordinate Bench, we dismiss the revenue s appeal." 8. The judicial discipline desires that there should be consistency in the view, if the facts are identical and more particularly in the assessee s own case. We, therefore, following the order of the Tribunal in assessee s own case for assessment year 1997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar under section 72 of the Act for not allowing the set off of brought forward business losses. On the perusal of the order of the ld. CIT(A), it is seen that the ld. CIT(A) has directed the Assessing Officer to verify the position in respect of the claim of brought forward business losses of the earlier years and give the benefit of set off in accordance with the law. In our opinion, no interference is called for in the directions of the ld. CIT(A) as the same are in accordance with law; accordingly ground No. 1 is dismissed. 14. Ground No. 2 is in respect of interest charged under section 234B of the Act. 15. The ld. counsel of the assessee submitted that due to the failure of the person to deduct TDS who makes the payment of tax, the assessee should not suffer by levy of interest under section 234B. He further submitted that now the issue is covered in favour of the assessee by the decision of the jurisdictional High Court in the case of DIT (International Taxation.) v. NGC Network Asia LLC [2009] 313 ITR 187 (Bom.). 16. The ld. DR is fair enough to submit that this issue stands covered in favour of the assessee as submitted by the ld. counsel of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
