TMI Blog2018 (5) TMI 1844X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement between the assessee and its parent organization has also not been placed before us to know whether any technical services have actually been provided and whether the same has passed ‘Make Available Test”. In the interest of justice, this issue is restored to the file of AO for readjudication. The assessee shall be at liberty to prove before AO that the days the trainers were in India were less than 90 days and that what has been provided is not fees for technical services. Assessee’s appeal are partly allowed for statistical purposes. TDS u/s 194H - commission payment - Agreement between the assessee and M/s.TQ Services, Hyderabad - HELD THAT:- A perusal of the agreement between the assessee and M/s.TQ Services, Hyder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice and fair play. 2. The CIT(A) erred in not considering that the foreign entity was an educational institution and the payments made to it by the Applicant is exempt as there is no make available made under Article 13 clause 4(c) and 5(c) of the DTAA between India and the UK DTAA 3. The CIT (A) further erred in assuming the existence of Permanent Establishment for TWI UK under article 5 of the DTAA. 4. The CIT(A) erred in upholding the disallowance of the lecturer cost amounting to a total of ₹ 1,04,51,762/- for non deduction of TDS u/s.40(a)(i) of the Act. 5. The CIT failed to appreciate that Article 5 of the DTAA is not applicable and that the duration of the independent courses cannot be aggregated, but to be cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting that it is curative in nature and can be considered retrospectively. Further, the CIT(A) failed to appreciate that the entities had offered the amount received from the appellant for tax and has filed return of income for the AY: 2012- 13. Therefore cannot be held as assessee In default as per sec 40(a)(ia) r.w.s Section 201(1) of the Income Tax Act. 11. For these grounds and such other grounds that may be adduced before or during the hearing of the appeal, it is prayed that the Hon ble Tribunal maybe pleased to pass such other orders as the Hon ble Tribunal deem fit. 4. Before us, ld.A.R submitted that two issues are involved in the assessee s appeal. It was a submission that grounds Nos.2 to 8 of the assessee s appeal was agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the behest of the assessee. It was a submission that none of the trainers stayed in India for more than 90 days. It was a further submission that on the ground that the trainers from M/s.TWI, UK was in India for more than 90 days, more specifically 127 days cumulatively, the ld. Assessing Officer had held that the Associated Enterprises (AE) of M/s.TWI, UK existed in India and the services rendered by the trainers were technical services, the fees paid to M/s.TWI, UK was fees for technical services and consequently, TDS was liable to be made u/s.195 of the Act and the same having not been done, the payment was disallowed by invoking the provisions of the section 40(a)(ia) of the Act. It was a submission that the trainings given were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the file of ld. Assessing Officer for readjudication. The assessee shall be at liberty to prove before the ld. Assessing Officer that the days the trainers were in India were less than 90 days and that what has been provided is not fees for technical services. Consequently, grounds Nos.2 to 8 of the assessee s appeal are partly allowed for statistical purposes. 8. In regard to Grounds Nos.9 10, it was submitted by ld.A.R that assessee had entered into an agreement with M/s.TQ Services, Hyderabad on First, April, 2011. It was a submission that as per the said agreement, the assessee was to pay M/s.TQ Services, share of income in accordance with the agreement, which was shown in Schedule-A, the percentages. It was a submission that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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