TMI Blog2015 (10) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... y in which the other transacting company is located and there is a variance between the provisions of the DTAA and the Indian Income-tax Act, then the provisions which are beneficial to the assessee are to be applied. As regards the appeal before the CIT(A), we find that the CIT(A) has only gone on the premise that mention of the word ‘design’ in the invoice proved that the holding company has provided designs to the assessee and therefore, it satisfies the phrase of ‘make available’ in the definition of ‘Fees for Technical Services’ in the treaty between India and Singapore. Before us, the assessee has filed documents to claim that no services relating to ‘design’ were rendered by the holding company to the assessee. In our opinion, all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mt. P.MADHAVI DEVI, JM: This is an appeal filed by the assessee against the order of the CIT(A)-III, Bangalore, dated 26-3-2012 for the assessment year 2008-09. The assessee is aggrieved by the order of the CIT(A) in confirming the order of the Assessing Officer (AO) holding that the assessee is liable to make TDS before making payment to the non-resident holding company and thus invoking the provisions of sec.40(a)(ia) of the Incometax Act, 1961[hereinafter referred to as 'the Act']. 2. Brief facts of the case are that the assessee-company is engaged in the business of manufacturing and installation of structural glazing works in India. It entered into a separate management services agreement with its holding company on 7-1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the management fee agreement between the assessee and its holding company at Singapore, only management services were rendered and they did not fall under the category of Fees for Technical Services under the DTAA between India and Singapore and therefore no TDS was made. He submitted that the AO has only invoked the provisions of sec.9(1)(vii) of the IT Act to hold that even management services come under the category of fee of technical services and TDS was liable to be made. He submitted that where there is a treaty between India and the country in which the non-resident transacting company is located, the treaty provisions also have to be considered and the beneficial provision has to be applied. He submitted that as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the assessee has further drawn our attention to the copy of the agreement between the assesseecompany and the holding company at Singapore to demonstrate that none of the services rendered or agreed to be rendered were technical services and no technology was being made available to the assessee. During the course of hearing, the learned counsel for the assessee has also filed additional evidence in the form of a letter from Singapore company to state that no designs were supplied to the assessee-company and that only management services were rendered. An affidavit was also filed in support of this contention. The assessee has sought admission of additional evidence and consideration thereof as it goes to the root of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a book entry and payment was not made to the holding company, no TDS was liable to be made. 5. The learned Departmental Representative, however, supported the orders of the authorities below and submitted that the assessee has been taking different stands before each of the authorities below. He submitted that the assessee has filed a copy of the Agreement between the assessee and the holding company and its group company at Italy before the CIT(A) whereas before this Tribunal, the assessee has filed a copy of the agreement between the assessee and its holding company at Singapore. He submitted that the additional grounds of appeal raised by the assessee also need verification of facts by the AO and therefore they should not be admitted. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the holding company to the assessee. In our opinion, all these documents need verification by the AO. Further, the additional grounds raised by the assessee are also legal grounds which need adjudication on the basis of facts on record. Before us, no facts are available to come to a conclusion as to whether the payment is reimbursement of expenses or payment for services rendered by the holding company. As regards the applicability of TDS provisions only on payment basis also, we find that no facts are available on record. In view of the same, we are of the opinion that the issue needs re-consideration by the AO in the light of the details available in the records of the AO as well as those filed before us and the judicial precedents on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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