TMI Blog2013 (11) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... elong to the assessee, but to these two companies only - The assessee firm which is only a representative of these companies and is carrying out its obligation for filing of the return of income as well as managing the entire affairs - Income per-se cannot be taxed in the hands of the assessee as a partnership firm but as a representative of these two companies – Decided against Revenue. Sharing of global software cost - Payments received from gropup company Maersk India Pvt. Ltd – Held that:- The assessee is not rendering any service of managerial, technical or consultancy to its agent or group entities by allowing its group companies to be usage of software. The assessee's main income is only from freight receipt received from operations of ships and it is not providing any technical service to them. It has developed a software for running of shipping business globally in a more effective and efficient manner and access of such software has been provided to various agents / group companies - They are reimbursing the cost to the assessee without any mark-up. Such a recovery of a cost cannot be held to be fees for technical services - The cost recovered from the various agents/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertion of Explanation (2) in Section 234D - Section 234D cannot be applied retrospectively – Decided against assessee. - ITA No. 5825/Mum./2006 - - - Dated:- 8-11-2013 - Shri Rajendra Singh And Shri Amit Shukla, JJ. For the Petitioner : Mr. Porus Kaka a/w Mr. Divesh Chawla For the Respondent : Mr. Ajay Shrivastava ORDER Per Bench These bunch of cross appeals and the cross objections have been preferred by the Department and the assessee for various assessment years, challenging the separate impugned orders passed by the learned Commissioner (Appeals)-XXXI, Mumbai, the details of which are as under:- (i) For the assessment year 1997-98, ITA no.5825/Mum./2006, has been preferred by the Revenue, Cross Objection no.60/Mum./2007, has been preferred by the assessee, which is arising out of Revenue's appeal in ITA no.5825/Mum./ 2006, and appeal in ITA no.5392/Mum./2006, has been preferred by the assessee, all challenging the impugned order dated 10th July 2006; (ii) For the assessment year 1998-99, ITA no.1968/Mum./2008, has been preferred by the assessee, appeal in ITA no.2477/Mum./2008, has been preferred by the Revenue and the cross objection no.134/Mum./2008, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involving common issues arising out of identical set of facts and circumstances, which are permeating through in all the assessment years, therefore, as a matter of convenience, these were heard together and are being disposed off by way of this consolidated order. However, in order to understand the implication, it would be necessary to take note of the facts of one appeal. 3. We are, accordingly, discussing the facts and issues, as they appear in the appeals for the A.Y. 2001-02 in ITA no. 3019/Mum./2005, which has been preferred by the Revenue, following grounds have been raised:- "On the facts and in circumstances of the case and in law the Ld.CIT(A) erred in holding that- A) the assessee is only managing the day-to-day operations of AKTIESELSKABET DAMPSKIBSSELSKABET, SVENDBORG (SVENDBORG); AND DAMPSKIBSSELSKBET AF 1912, AKTIESELSKAB (1912) in its capacity as managing owner, inspite of the fact that the return has been filed by the assessee and freight income has been claimed by the assessee in the computation of income filed with the return of income. B) The freight receipts from shipping business from India should be assessed in the hands of SVENDBORG and1912 and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut prejudice to ground No.1, your Appellants submit that if it is held that management fees are chargeable to tax in India under the Act, they are entitled to the benefits of the AADT and the management fees are not chargeable to tax in India under the AADT and pray that the AO be directed accordingly. 4. The CIT(A) erred in confirming levy of interest under Section 234D of the Act." In the aforesaid grounds of appeal, the assessee has mainly raised the following issues which require our adjudication on merits:- (i) Whether the management fees received and the reimbursement of expenditure to A.P. Moller A/S is chargeable to tax in India; (ii) Whether the treaty benefit under India and Denmark DTAA is available to the assessee or nor; and (iii) Whether interest under section 234D can be levied. 4. Facts in brief:- The factual background of the case, which are culled out from the order of the learned Commissioner (Appeals) and also the submissions made by the parties which have a very relevant bearing on the issues involved are that the assessee i.e., A.P. Moller, is a partnership firm existing under the laws of Denmark. The said partnership firm consisted of four individ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also, the assessee had filed return of income under section 139(1) on 29 th October 2001, at "Nil" income after claiming benefit of Article-9 of India Denmark DTAA. The gross receipts from the shipping business from India were shown at Rs. 13,82,79,58,262, which has been claimed to be non-taxable in India by virtue of Article-9 of the treaty. It has been submitted by the learned Senior Counsel, Mr. Porus Kaka, on behalf of the assessee, that prior to the commencement of the assessment proceedings, the assessee has written a letter dated 15th March 2002, filed on 18th August 2002 before the Assessing Officer requesting for grant of certificate for 100% relief with regard to the income from shipping business in India. Along with the said letter, the assessee firm had submitted various documents which goes to show that not only these companies were the owners of the vessels and carrying out the shipping operations, but also the status and the capacity under which the assessee firm was looking after the affairs of these companies. The documents enclosed along with the letter included the following:- Bills of lading which were issued in the name of the listed Companies as owners of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the entire income from the partnership firm is divided between the partners, which are subjected to tax in Denmark, therefore, the partners are taxable entity under the Danish laws. If the partnership firm is not entitled to benefit of the treaty, then the benefit ought to have been granted to the partners. Various commentaries of OECD and other eminent authors were also relied upon in support of this contention. Thus, the entire income of the partnership flows to the partners only which are fully taxable and, therefore, the conditions of Article-4 and Article-9(1) stand fulfilled. The other main submissions were that the return of income of the two limited companies have also been filed on 5th March 2004, claiming same benefit of Article-9 and, therefore, these returns of income should be regularized and to be proceeded thereon, as ultimately the shipping income belongs to these two companies only. 9. The Assessing Officer, from the facts and material on record before him, deduced that the return of income was filed in case of A.P. Moller under section 139(1) and the computation of income filed along with the return of income mentioned gross receipts of shipping operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lip Baker and held that the entire gross receipts from shipping income has to be taxed as per the provisions of section 44B and, accordingly, 7.5% of the gross receipt was held to be taxable. The relevant findings of the Assessing Officer for coming to this conclusion, are as under:- "7.12 On the basis of the above, it becomes obvious that M/s. A.P. Moller cannot be considered a resident of Denmark for the express purpose of claiming benefit under the DTAA as it is not liable to tax in Denmark. 7.13 It needs to be mentioned here that the returns of income of 'Svendborg' and '1912', as filed on 05-03-2004, cannot be considered for the purpose of the present assessment as they are non-est in law. Further, the AR of the assessee has made a claim that the income is finally flowing to 'Svendborg' and '1912', and those entities are liable to tax in Denmark and thus are resident in Denmark for the purpose of claiming the benefit of the DTAA. Accordingly, the income is fully attributable to them and non taxable in India as per Article 9 of the DTAA. Claim of the AR is not acceptable as no specific discussion on this issue is available in the DTAA. Unless and until the DTAA itself provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fleet. The expenditure incurred by these two companies mainly includes network cost, data communication, data production, project and development cost, etc. In this entire system, the charges are paid by these two companies and share of the cost is recovered from various group entities / agents including MIPL and MLIL in India based on the invoices raised. Thus, recovering of such cost cannot be treated as income either of the assessee firm or of these two companies. In any case, this I.T. systems are used for business operations for carrying on shipping business efficiently and, hence, it is a part of shipping business only. However, the Assessing Officer rejected such contention and held that such a payment is to be taxed as fee for technical services in the hands of the assessee under section 9(1)(vii) in the following manner:- "10.4 It is seen that the system acquired by AP. Moller is for the use of its shipping business and inter alia, processes data related to its ships, cargo and their movement around the world. MIL and MLIL are making payments to AP. Moller for the use of the services. Thus, what is being termed as 'reimbursement of costs' is basically payment for the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessable in the hands of the assessee or the two limited companies, agreed with the contention of the assessee and directed the Assessing Officer to examine the taxability of freight receipts in the hands of Svendborg and 1912 separately. Relevant observation and finding of the learned Commissioner (Appeals) for the sake of ready reference are reproduced herein below:- "5.7 I have carefully considered the contentions of both, the Assessing Officer as well as the appellant. Mere fact that the appellant while furnishing its return of income has made certain wrong declarations does not imply that the position declared by the appellant in a return of income is a correct position. If certain facts are unearthed during the course of assessment proceedings then the same have to be factored in while determining the correct tax position. 5.8 It is very clear on the basis of submissions made by the appellant that it is only a managing owner of Svendborg and 1912 and acts as a representative on behalf of both the companies. The ships and other assets used in the shipping business are owned by Svendborg and 1912 and not by the appellant. Further, it is apparent from the bill of lading that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India under the respective Article of the DTAA between India and Denmark. 14. The learned Commissioner (Appeals), however, did not accept the assessee's contention and observed that as a managing owner, the assessee is required to represent Svendborg and 1912 in all the matters and exercise any authority vested in the capacity of managing owner which may bind these two companies. The fees received by the assessee would thus, qualify for fees for technical services, as the same have been received by the assessee firm for rendering managerial services for the purpose of earning freight income from India. Regarding taxability of management fees under the provisions of DTAA, he agreed with the contention of the Assessing Officer that the said DTAA is not applicable in the case of the assessee as the assessee being a partnership firm, which is not liable to tax in Denmark. In the absence of the applicability of DTAA, the taxability of management fees receivable or received by the assessee pertaining to Indian operations would, therefore, be determined under the provisions of Indian Income Tax Act only. Hence, he held that the said payment is taxable under section 9(1)(vii). He fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been shown in the assessee's name only. He further submitted that even if the firm was filing return of income in the capacity of managing owner for the two companies, then also, it does not make any difference as the assessee has been actually managing the shipping business and all the day-to-day decisions and management of the shipping business is being carried out by the assessee and, therefore, the freight belongs to the assessee firm only. The Assessing Officer has rightly taxed the income in the status of the partnership firm in the assessment order. In the return of income also, there is no such declaration that the assessee has been filing the return of income as managing owner of the two companies and in fact, the A.P. Moller firm has itself represented as "assessee" before the income tax authorities in India. He thus, strongly relied upon the various observations and the reasoning given by the Assessing Officer in the assessment order. 19. On the issue of taxability of payments received from the two companies in India namely, MIPL and MLIL towards cost of software development by the assessee for global telecommunication facilities and for the use of its global shippi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate. Along with such application, the assessee has been enclosing, agency agreement entered between the assessee firm on behalf of two limited companies and MLIL, which is an agent in India, bills of lading which are issued in the name of the two listed companies as owners of the vessels, tax residency certificate issued by Danish tax authorities relating to these two companies and other documents showing that shipping income and the vessels belong to the two companies and not the assessee firm. In the earlier years as well as in the subsequent years, the status of the assessee has been shown as the managing owner and the fact that shipping income belongs to these two companies have been accepted at the stage of the assessment itself. In support of his contention, he referred to compilation of various assessment orders right from the assessment years 2004-05 to 2010-11. He specifically drew our attention to the assessment order for the assessment year 2008- 09, wherein the Assessing Officer has categorically held that income from shipping business belongs to the companies and has also given relief under Article-9 of the DTAA. In the other years also, the Assessing Officer has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment have been made towards the cost of software which has been allocated to all such agents / companies all over the world. This recovery of the cost, neither can be termed as "Fees for Technical Services" nor in the nature of chargeable income in the hands of the assessee. The learned Commissioner (Appeals) has held that these amounts should be examined in the hands of the two companies. However, in case of these two companies, the Tribunal in the assessment years 2001-02 to 2003-04 in ITA no.2083- 2085/Mum./2009, has decided this issue in favour of the assessee after detail discussion and reasoning. This order of the Tribunal has been followed successively up to the assessment year 2007-08. The relevant observations made by the Tribunal were also highlighted before us. Thus, this issue, he submitted that, is squarely covered in favour of the assessee. 22. In the rejoinder, the learned Departmental Representative submitted that if in the earlier years, the Assessing Officer has assessed the income in the status of company, then it was an mistake which can be rectified under section 292B. He submitted that the confusion was always is on the part of the assessee, because t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secondly, the entire payment is made by these two companies to the assessee firm in Denmark; and lastly, the management fees or commission does not depend upon the freight receipts but on the basis of GRT, which is the carrying capacity of the ships per annum and, therefore, the payment does not have any co-relation with the receipts from the ships from any of the country including that of India. There is no management of any Indian company by the assessee firm and it is also very difficult to apportion any income to the assessee firm from the Indian operation. The agent MIPL books the freight for shipping company in India and manages the affair of the freight receipts for India. The assessee firm has nothing to do with MIPL. He also relied upon certain old decision on the concept of managing owner / agency which was their in India in pre and post independence era wherein, the Courts have held that the taxability of managing agency is to be seen where the accounts are maintained and effective management is carried out. The taxability of managing agency cannot be governed by the place of business but from the place where business is managed and profits are calculated. The decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee neither has any P.E. nor has any fixed base in India. The payment has been made by one non-resident to other non-resident in connection with managerial services rendered outside India. The payment is nothing to do with the Indian agent i.e., MIPL. There has to have some economic link of the assessee with the P.E. and such a payment must be deductible in the hands of the P.E. In this case, all these conditions are completely non-existent and, therefore, within the provisions of DTAA, such a payment cannot be held to be either fees for technical services or royalty. In support of his contention, he strongly relied upon the decision of Mumbai Bench of the Tribunal in Set Satellite Singapore Pte. Ltd. v/s ADIT, [2010] 132 TTJ 459 (Mum.). He further submitted that even otherwise also within the meaning of section 9(1)(vii), the payment made by these companies to the assessee do not fall within the ambit of managerial, technical or consultancy services because no managerial service has arisen or accrued directly or indirectly to the assessee or from any business connection in India or through any property in India. No service has been utilized in business or profession carried on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies globally and it is a global advisor in all respects. Such an advise extends to the business carried out in India also. Thus, not only the commission / remuneration on managerial services are taxable in India by virtue of the provisions of section 9(1)(vii) but also under Article 13, because MIPL has some economic connection with the assessee also. Regarding the decision in Linklaters LLP (supra), he submitted that the said decision was rendered in the context of U.K. treaty, wherein there was a special clause which is not applicable in the Denmark treaty. In the Denmark, partnership firm is not a taxable entity and, therefore, benefit of treaty cannot be extended to the assessee firm. In support of his contention, he strongly relied upon the AAR ruling in case of Schelleaverg Wittmer A.R. no.1029 of 2010, order dated 27th August 2012. He submitted that in this case, the AAR, while interpreting similar treaty with Switzerland held that once the partnership firm is not taxable entity under Switzerland, then the benefit of the treaty cannot be given. Moreover, he submitted that the MIPL is the subsidiary of A.P. Mollar group and, therefore, there is a strong economic connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shipping operations is assessable in the hands of the assessee firm or in the hands of two companies namely Svendborg and 1912; ii) Whether the assessee firm is entitled for the benefit of DTAA between India and Denmark and also whether the assessee can be held to be taxable entity in its resident country i.e., Denmark; iii) Whether the management fees received / receivable by the assessee from the two companies Svendborg and 1912 is chargeable to tax in India or not; and iv) Whether the payment made by MIPL and MLIL towards share of cost of the software and global telecommunication facilities developed by these two companies for the shipping operations can be taxed as fees for technical services or royalty either in the hands of these two companies or in the hands of the assessee firm. Decision on the first issue:- 29. It is seen from the material available on record that the assessee firm on behalf of these companies have been making applications from time to time at the beginning of every financial year for obtaining annual double income tax relief / port clearance certificate. Along with the said application, detail information and documents have been filed which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able entity, therefore, benefit of DTAA cannot be given to the assessee. Accordingly, he has taxed the shipping income in the hands of the assessee firm. The learned Commissioner (Appeals), partly accepted by the assessee's contention insofar as that the shipping income does not belong to the assessee firm, because it is only a managing owner and the said income belongs to these two companies and accordingly, directed the Assessing Officer to examine the taxability of the freight receipts in the hands of these two companies. However, he held that the management fees paid by these two companies to the assessee firm are liable for taxation as fees for technical services / royalty under section 9(1)(vii) in India. Regarding denial of benefit of DTAA to the assessee firm, he upheld the contention of the Assessing Officer. 30. Now, whether the assessee firm A.P. Moller and the two companies Svendborg and 1912 can be said to be one entity inasmuch as all the shipping income can be said to belong to the assessee firm. From the Article of Association and other material placed on record, it is evident that the assessee firm is the managing owner and in that capacity only, it manages the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en merged and referred to as A.P. Moller Maersk A/S showing shipping income. This status of assessment is being continued till present. Once the Department itself has accepted the assessee firm as a representative of these two companies and has been giving treaty benefit and treating the shipping income belonging to these two companies year- after-year, then in this year, exception cannot be carved out so as to hold that the shipping income belongs to the assessee firm. Thus, we fully agree with all the contention raised by the learned Sr. Counsel before us and, accordingly, hold that the shipping income belongs to these companies only and not in the hands of the assessee firm which is only a representative of these companies and is carrying out its obligation for filing of the return of income as well as managing the entire affairs. Thus, this issue stands decided in favour of the assessee. Decision on second issue:- 31. The Assessing Officer has denied the benefit of the Indo-Denmark treaty to the assessee firm which has also been confirmed by the learned Commissioner (Appeals), on the ground that the assessee firm is transparent entity i.e., not liable for tax in Denmark and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artnership is taxed albeit in the hands of the partners in the resident State, the treaty benefit cannot be denied. The basic purpose is whether the entire income is taxable in the resident State or not. The mode of taxability whether in the hands of partnership or the partners cannot be given much credence, so long as the income is fully taxed in the resident State. There is another aspect which strengthens the above proposition, if the income of the partnership firm is fully taxed in the other contracting State (say, India) and the same income is also taxed in the hands of the partners in the resident State (say, Denmark), then it will result into double taxation. This cannot be the mandate of the treaty, specifically when the shipping income is to be taxed entirely in the resident State (i.e., place of effective management). Without going deep into analyzing this issue, we find that this aspect of the matter has been elaborately explained and analysed by the co-ordinate bench of the Tribunal, Mumbai, in Linklaters LLP (supra), wherein the learned Accountant Member, speaking on behalf of the Bench, has not only considered the various commentaries, international views but also var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India by virtue of Article 13(6) and, secondly, the scope of section 9(1)(i) also does not cover such kind of a payment. Article- 13 of the Indo Denmark DTAA provides for the scope of taxability / non- taxability of the royalty and fees for technical services. Article-13(6) carves out an exception that the royalty and fees for technical services shall be deemed to arise in a contracting State when such non-resident has a P.E. or fixed base in the other contracting State and the liability to pay royalty or fees for technical services has been incurred in connection with such P.E. and such royalty or fees for technical services are borne by such P.E. The relevant portion of Para-6 of Article-13 is reproduced hereunder for the sake of ready reference:- "13(6) Royalties and fees for technical services shall be deemed to arise in a Contracting State when the payer is that State itself, a political sub-division, a local authority or a resident of that State. Where, however, the person paying their royalties or fees for the technical services, whether he is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee that the management fee cannot be taxed in India in the hands of the assessee. Decision on forth issue:- 35. The facts regarding this issue has already been discussed in detail in the forgoing paragraph that these payments were on account of sharing of the cost of I.T. Global Online System and Software which is mainly used for international shipping business of Svendborg and 1912. Out of the total charges paid by these two companies, the cost is shared by all the group entities / agents globally and the same is recovered from them. The MIPL and MLIL have also shared the cost of these Global Online System and Software which is used for shipping business only. This issue has already been decided by the Tribunal in case of these two companies as have been referred and relied upon by the learned Senior Counsel. We have also decided a similar matter in DDIT v/s A.P. Moller, ITA no.1807/Mum./2012, vide order dated 8th November 2013, wherein the earlier decision of the Tribunal has been followed in the following manner:- "10. We have heard the rival contention, perused the relevant findings of the authorities below and the material available on record. It is an undisputed fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar to Article-9 of the Indo- Denmark DTAA) also expresses the same view. If any activity is directly linked with carrying on shipping operations and results into some kind of an income, then it has to be treated as a part of such shipping operations only. This aspect of the matter has been discussed at length by the Tribunal in assessee's own case for the assessment years 2001-02 to 2003-04 in ITA no.2083 to 2085/Mum./2009, wherein this issue has been analysed in detail from Para-24 to 28 which, for the sake of ready reference is reproduced herein below:- "The OECD commentary on Article 8 relating to taxation of income from operation of ships on international traffic is identical worded to Article 9(1) of DTAA between India and Denmark. OECD in its commentary on Article 8 paragraph 1 has explained expression profit of an enterprise from the operation of ships in international traffic. It has been opined in that commentary that the profits covered consist of profits directly obtained by the enterprise from transportation of passenger or cargo by ships or aircraft from operations in international traffic. They have also opined that such enterprises carrying on large variety of acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted with such transportation services. There are primarily preparatory and auxiliary activities related to transportation, such as the services of agencies selling passage tickets on behalf of the enterprise concerned or on behalf of third enterprises. Therefore, profits from the activities of legally dependent agencies of shipping or air transport enterprises, together with any other profits made by them, are taxable at the place of management." 28. The Hon'ble Delhi High Court in the case of DIT Vs. K. Royal Dutch Airline, 178 Taxman 291 (Del) had to dealt with the case where the assessee who was tax resident of Netherlands carrying on business of operation of aircraft in international traffic, was given right to use a shed in cargo complex at Bombay for use as a warehouse and office. This license was granted by Airport Authority of India (AAI). The Netherlands company entered into an agreement with an agent in India for handling cargo on its behalf. The Netherlands company allowed the agent to use premises given on license to it by AAI. For allowing such a use, Netherlands company .recovered rent from the agent. The Tribunal held that rent received was also income from operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tware for facilitating the freight receipts from shipping for which software they are reimbursing the cost to the assessee without any mark-up. Such a recovery of a cost cannot be held to be fees for technical services. This issue again has come up for consideration before the Tribunal in assessee's own case right from the assessment year 2001-02 to 2007-08 wherein the Tribunal has very categorically held that such payments received by the assessee towards recovery of cost is not fees for technical services. Even in the latest judgment in for the assessment year 2006-07 and 2007-08, the Tribunal, vide order dated 28th August 2013, have held that such payments are not in the nature of FTS after following the earlier year's decision. Thus, the finding of the learned Commissioner (Appeals) as reproduced above are in consonance with the decisions given by the Tribunal in assessee's own case for the earlier years and, therefore, as a judicial precedence, we do not find any reason to deviate from such a findings and conclusions. Accordingly, the ground raised by the Revenue is treated as dismissed." 36. Thus, the payment made by the MIPL and MLIL can neither be taxed as fees for techni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd cross objections, it is seen that in all there are nine issues raised. The first issue which is common in all the years under appeal in Revenue's appeals is whether the learned Commissioner (Appeals) has erred in law and facts in holding that freight income is assessable in the hands of the two companies Svendborg and 1912 and not in the hands of the assessee firm. 43. This issue has been raised by the Revenue in ground no.1, 2, 3 and 4 in ITA no.5825/Mum./2006, for the assessment year 1997 -98; ground no.1 and 2 in ITA no.2477/Mum./2008, for the assessment year 1998 -99; ground no.1, 2, 3 and 4 in ITA no.5826/Mum./2008, for the assessment year 1999- 2000, ground no.1 and 2 in ITA no.2478/Mum./2008, for the assessment year 2000-01; ground no.1 and 2 in ITA no.3019/Mum./2005 and ITA no.2478/ Mum./2008, for the assessment year 2001 -02, ground no.1, 2 and 3 in ITA no.5032/Mum./2006, for the assessment year 2002-03 and ground no.1, 2 and 3 in ITA no.3632/Mum./2007, for the assessment year 2003 -04. All these grounds are treated as dismissed in view of our findings given in ITA no.3019/Mum./2005. 44. The second issue, raised by the Revenue in its appeals for all the year under a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are treated as dismissed. 47. The fourth issue is whether the management fee receivable by the assessee firm is chargeable to tax in India as raised by the assessee in ground no.2 and 3 in ITA no.5392/Mum./ 2006, for the assessment year 1997-98, in ITA no.1968/ Mum./2008, for the assessment year 1998-99, in ITA no.5393/Mum./2006 for the assessment year 1999-2000, in ITA no.1970/Mum./2008, for the assessment year 2000-01, ground no.1, in ITA no.2786/ Mum./2005, for the assessment year 2001-02, in ground no.2 and 3 in ITA no.1972/Mum./2008, for the assessment year 2001 -02, in ground no.1 and 2 in ITA no.4991/ Mum./2006, for the assessment year 2002-03 and ground no.1 and 2 in ITA no.2953/Mum./2007, for the assessment year 2003-04. In view of our findings given in ITA no.3019/Mum./2005 is decided in favour of the assessee, thus, the grounds raised by the assessee in all these appeals are treated as allowed. 48. The fifth issue is with regard to chargeability of interest under section 234B which has been raised by the Revenue vide ground no.6 in ITA no.5826/Mum./2006, for the assessment year 1999-2000, ground no.4 in ITA no.3019/Mum./ 2005 for the assessment year 2001-02. This i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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