TMI Blog2020 (11) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... anent to Walter Tools India Pvt. Ltd. and Dormer Tools India Pvt. Ltd. came up for consideration before the Tribunal for the A.Y. 2013-14 wherein the matter stood remitted to the file of the AO for fresh determination of nature of services. Similar view has been reiterated by the Tribunal in its order for A.Ys. 2014-15 and 2015-16. A copy of this order is available at page 19 onwards of paper book. Since the facts and circumstances of the nature of receipt from three Indian entities in this year are admittedly similar to those of two entities in preceding years, respectfully following the precedent, we set aside the impugned order and remit the matter to the file of the AO for a fresh determination of the issue in accordance with the dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Limited (hereinafter referred to as SAPL) under which the IT support services were provided to the latter. He treated such receipts as Fees for technical services‟ u/s 9(1)(vii) of the Act and further came to hold that since the technology was embedded in the hardware and if the Indian entity was enabled to use the same, it amounted to making available‟ technical services and know-how etc. The same was consequently held to be covered within Article 12 of the DTAA. He also took note of the directions issued by the Dispute Resolution Panel (hereinafter referred to as `the DRP‟) for earlier years, in which, relying on its directions for still earlier years, the DRP held that the AO mistook the nature of services as relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 crore received by the assessee from SAPL was covered under Article 12 of the DTAA. Similar view was taken in respect of the other amounts received from the three Indian entities. Aggrieved thereby, the assessee is in appeal before the Tribunal. 4. We have heard both the sides through Virtual Court and scanned through the relevant material on record. In total, the assessee, a non-resident, received IT Support service fees from four Indian entities. First we espouse for consideration a sum of ₹ 25.61 crore received from SAPL. There is no dispute on the nature of services rendered by the assessee to SAPL, being, that of data communication, operational services backup and recovery services, help desk, etc. It is elementary that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nues to remain the same as was there in earlier years. In this regard, it is noted that for the A.Y. 2009-10, the AO treated sum of ₹ 6.76 crore received from SAPL as Fees for technical services‟. The DRP held such amount to be not chargeable to tax. In the appeal by the Revenue, the Tribunal decided this issue in favour of the assessee. A copy of the Tribunal‟s consolidated order for the A.Ys. 2009-10 and 2012-13 has been placed at page 1 onwards of paper book. For the A.Ys. 2010-11 and 2011-12, the AO again treated the amounts received from SAPL as chargeable to tax. The DRP again reiterated its view against the Department. Though the Revenue was competent, yet it did not choose to file further appeal before the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co Tools India Pt. Ltd. and Dormer Tools India Pvt. Ltd. amounting to ₹ 1.23 crores, ₹ 7.84 lakhs and ₹ 23.74 lakhs respectively. The AO has discussed this issue on page 22 of the draft order by observing that the DRP for the A.Ys. 2013-14 and 2014-15 has held fees from Walter Tools India Pvt. Ltd. and Dormer Tools India Pvt. Ltd. as chargeable to tax under Article 12 of the DTAA inasmuch as the assessee failed to provide the correct nature of services and submitted only certain invoices by claiming that no formal agreement was entered into between the assessee and these two Indian entities. As regards the third entity, namely, Seco Tools India Pvt. Ltd., the AO followed the same course as the assessee failed to provide th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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