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Partners Medical International, Inc. (Earlier known as Partners Harvard Medical International, Inc.) C/o. Pricewaterhouse Coopers (P) Ltd. Versus Dy. CIT (Intl. Taxation) -3 (3) (2) , Mumbai

2017 (12) TMI 572 - ITAT MUMBAI

Order passed beyond the time limit prescribed under section 144C(4) - Action of the Dispute Resolution Panel - 2 day delay in receipt of draft assessment order against the date recorded by the Assessing Officer - Held that:- In our considered opinion, on the facts and circumstances of the case, the two day delay in furnishing the objections to the DRPís objections deserves to be condoned. Accordingly, we condone the delay in submission of the objection of the DRP. The ld. DRP is directed to pass .....

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ated 09.12.2014 for the assessment year 2011-12. ITA No. 3609/Mum/2016 2. The assessee has appealed against the order of the ld. Commissioner of Income Tax (Appeals) dated 28.02.2016. The assessee has raised multiple grounds but the fact of the case are that the ld. Commissioner of Income Tax (Appeals) has held that the assessee should have filed the appeal before the ITAT and not before him, hence, he has dismissed the appeal. The order of the ld. Commissioner of Income Tax (Appeals) in this re .....

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his background the DRP have decided the objections to be non-este, the having been filed on March 26, 2014. Therefore, as per the AO, a stand supported by the DRP the appellant was late in filing its objections before the DRP. It is seen that the A.O. finally passed the order on 9 December, 2014. The present appeal has been filed in this office on 13 Jan, 2015 with the order having been received by the appellant on 17 December, 2014. However, the appellant has not been able to demonstrate as to .....

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gard is dismissed. Considering therefore that the said appeal cannot be taken to be admitted, since the correct forum was the Honorable ITAT the grounds are not adjudicated on merit. 3. In light of his above order, the ld. Commissioner of Income Tax (Appeals) has dismissed the other grounds raised by the assessee. 4. Against the above order of the ld. Commissioner of Income Tax (Appeals), the assessee has filed an appeal before us. 5. Upon careful consideration, we find ourselves in agreement wi .....

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nds of appeal read as under: Ground No. 1 - Action of the Dispute Resolution Panel On the facts and circumstances of the case, and in law, the Dispute Resolution Panel ('DRP') erred in holding that the objections were filed by the Appellant before it beyond the time limit prescribed in section 1440(2) of the Income-tax Act, 1961 ('the Act'), and in treating the same (objections filed) as non-est. The Appellant prays that requisite directions be given so as to restate the objectio .....

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received by the authorised representatives of the Appellant on February 24, 2014 (i.e. the date mentioned in Form No. 35A filed by the Appellant). It is prayed that the said observation of the learned DCIT ought not to be considered as the Appellant had not provided any wrong information in Form 35A. Ground No, 3 - Validity of the learned AO's order dated December 09, 2014 On the facts and circumstances of the case, and in law, the learned DCIT erred in passing the assessment order, dated De .....

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against the returned income of NIL. It is prayed that the learned DCIT be directed to delete the additions made. Ground No. 5 - Addition on Account of Royalty On the facts and circumstances of the case, and in law, the learned DCIT erred in concluding that 90% of the receipts of the Appellant during the year amounting to ₹ 4,97,25,117 are in nature of 'Royalties' under the provisions of Article 12(3) of the Double Taxation Avoidance Agreement between India and USA ('DTAA') .....

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year amounting to ₹ 55,25,013 constitute 'Fees for Included Services' ('FIS') under Article i2(4)(b) of the DTAA and thus liable to tax in India. It is prayed that the learned DCIT be directed to hold that the entire payment received by the Appellant is for services rendered, and are not 'Included Services' within the meaning of Article i2(4)(b) of the DTAA read with the Memorandum of Understanding to the DTAA and hence, payments received for such services fall outs .....

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by virtue of Article i2(s)(c) of the DTAA. Ground No. 7 - Business profits not taxable in absence of a Permanent Establishment On the facts and circumstances of the case, and in law, the learned DCIT erred in not appreciating that, if at all, the payments received by the Appellant during the year are in the nature of 'Business Profits', and hence, not taxable in India under Article 7 of the DTAA in the absence of a Permanent Establishment in India (under Article 5 of the DTAA). The Appe .....

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ned DCIT be directed not to invoke the provisions of Rule 10 of the Income-tax Rules, 1962. Ground No. 9 - Addition on account of reimbursement of expenses On the facts and circumstances of the case, and in law, the learned DCIT erred in including as part of the total income, a sum of ₹ 47,24,930, being reimbursements received for actual expenses incurred by the Appellant on the ground that the facts of the current year are identical with the facts of Assessment Year ('AY1) 2000-01 and .....

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ts entered after June 1, 2005. The Appellant prays that the learned DCIT be directed to delete the erroneous rate of tax applied. Ground No. 11- Short credit of TDS On the facts and circumstances of the case, and in law, the learned DCIT erred in not granting TDS credit to the extent of ₹ 32,96,715. The Appellant prays that the learned DCIT be directed to grant full TDS credit of ₹ 51,33542 as claimed by the Appellan tin the return of income. Ground no. 12- Levy of interest under sec .....

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3,191 and ₹ 1,62,006 respectively. The Appellant prays that the learned DCIT be directed to delete the interest levied under the said sections. 7. In this case, the draft assessment order was passed by the Assessing Officer on 21.2.2014. according to the Assessing Officer the date of service of the draft assessment order was 22.2.2014, however, the assessee claimed that the date of service of draft assessment order was 24.2.2014. The assessee filed objection against the draft assessment or .....

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file his objections to the Dispute Resolution Panel and the Assessing Officer. The concerned provisions of Act for the sake of ready reference are reproduced herein under :- On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order, - (a) file his acceptance of the variations to the Assessing Officer, or (b) file his objections, if any, to such variation with, (i) the Dispute Resolution-Panel; and (ii) the Assessing Officer. 5. It can .....

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ns proposed in the draft order within thirty days of the receipt by him of the said draft order. In the provisions relating to filing of objections before Dispute Resolution Panel, there is no provision which allows the delayed filing of objections by the eligible assessee. 6. In the facts of the case, the objections filed are beyond the period of thirty days and against such factual position of the delayed, filing of the objections before this Panel by the assessee. There is no dispute or conte .....

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