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Partners Hardvard Medical International Inc., C/o Pricewaterhouse Coopers (P) Ltd, and others Versus The Asstt. Director of Income Tax (International Taxation) -3 (1) , Mumbai and others

2015 (7) TMI 985 - ITAT MUMBAI

Fees received under consulting agreement from Wokhard Hospitals and M/s Carol Info Services are taxable as “Fee for included services - The tax authorities have examined only the agreements and have drawn conclusion against the assessee. They have not examined about the nature of services actually provided or delivered by the assessee to the Indian entities. In our considered view, one may not be able to come to a conclusion about the nature of services provided unless the actual services/delive .....

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ient of services even in the absence of the financial consultancy firm. In that case, the question that requires to be examined is whether the financial consultancy firm has made available the technology related to Cash management system or not within the meaning of the provisions of Indo-USA DTAA.

In the absence of such kind of examination from the side of tax authorities, we notice that the Tribunal also has proceeded to adjudicate the issue by considering the agreements only. In th .....

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t aside the orders of Ld CIT(A) in AY 2006-07 and the assessment orders passed on the above said issues in AY 2007-08 to 2009-10 and direct the AO to delete the addition of all the receipts discussed above. - Decided in favour of assessee. - I.T.A. No.5835/Mum/2009,I.T.A. No.5976/Mum/2009,I.T.A. No.7425/Mum/2010 And ITA No.7185/Mum/2012,I.T.A. No.7870/Mum/2011 - Dated:- 3-7-2015 - S/Shri B.R.Baskaran and Amit Shukla, JJ. For the Petitioner : S/Shri Kanchan Kaushal, Dhanesh Bafna and Arpit Agrawa .....

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issues are agitated in these appeals, all these appeals were heard together and they are being disposed of by this common order, for the sake of convenience. 2. In all these appeals, the solitary issue urged is whether the assessee is liable to pay tax on the amounts received from the persons mentioned below in respect of services provided to them: a) Wockhard Hospitals Ltd i) Consulting Agreement; ii) Award Agreement; and iii) Education and Teaching Agreement b) Sri Ramchandra Medical College & .....

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ices under the agreements entered with various Indian entities. The assessee claimed that none of the receipt is taxable in India as per the provisions of Indo-US DTAA. 4. In assessment year 2006-07, the AO treated all the receipts as taxable. However, the AO held that 90% of the receipts are taxable Royalty and the balance 10% of the receipts is taxable as Fee for included services . However the contention of the assessee is none of the receipt is liable for taxation in India as they do not fal .....

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fo Services are taxable as Fee for included services . (b) the fees received from Wockhard Hospitals in pursuance of Award Agreement is not taxable. (c) the receipts by way of reimbursement of expenses are not taxable. (d) the fees received from Wockhard Hospitals Ltd under the education and teaching agreement is partially taxable, i.e., 75% of the receipt is not taxable and balance 25% is taxable as Royalty for use of trade name. (e) the fees received from SRMCRI under education and teaching ag .....

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The assessee has filed the appeals for the remaining three years challenging the order of the AO. 7. At the time of hearing, the ld. Counsel appearing for the assessee submitted that the identical issues have been considered by the Tribunal in various years and they have been decided in favour of the assessee by holding that they are not taxable as per the Indo USA treaty. The assessee has also furnished copies of orders passed by the Tribunal from assessment years 2000-01 to 2004-05. The order .....

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e co-ordinate benches from AY 2000-01 onwards. In assessment year 2004-05, the assessee had received fees from M/s Max India Ltd for identical services rendered by the assessee for advisory services rendered. Identical view was taken in the case of receipts from Wokhard Hospitals. The Tribunal in paragraph13 and 14 of its order has held as under:- 13. Consistent with the aforesaid view taken by the Tribunal in Assessee s own case, we hold that the payments received from Max does not constitute F .....

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ed in India. Accordingly, consistent with the view taken in earlier years in assessee s own case, we allow grounds no.1 and 2, raised by the assessee. The above said decision of the Tribunal shall be applicable to the fees received by the assessee in the current year under Consulting Agreement (Wokhard Hospitals and Carol Info Services Ltd) and under Award Agreement (Wokhard Hospitals). 10. The Tribunal also considered the issue relating fees received under Education and Teaching Agreement from .....

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hing Agreement. 11. In respect of amount received by way of reimbursement of expenses also, the Tribunal in paragraph 31 of its order held that the same cannot be held to be taxable, since the main receipts have been held to be not taxable. 12. Thus, it is seen that the Tribunal has considered identical issues in AY 2004-05 and it has held that none of the receipts is taxable in India. 13. We notice that the tax authorities have examined only the agreements and have drawn conclusion against the .....

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