TMI Blog2022 (5) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. - Decided against Revenue. - ITA No. 6641/Del/2017 - - - Dated:- 27-4-2022 - SH. ANIL CHATURVEDI , ACCOUNTANT MEMBER And SH. ANUBHAV SHARMA , JUDICIAL MEMBER Assessee by : Shri Satya Jeet Goyal , Advocate Revenue by : Shri Sanjay Kumar , Sr. D. R. ORDER PER ANIL CHATURVEDI , AM : This appeal filed by the Revenue is directed against the order dated 23.08.2017 of the Commissioner of Income Tax (Appeals)-42, New Delhi for Assessment Year 2013-14. 2. Brief facts of the case as culled out from the material on record are as under:- 3. Assessee is stated to be a non-resident company incorporated under the laws of Netherlands and engaged in the business of providing consulting services for transportation, wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before CIT(A). CIT(A) by following the order of his predecessor in assessee s own case for A.Y. 2011-12 directed the AO to tax the income from contracts on net basis under the provision of Section 44DA of the Act. 5. Aggrieved by the order of CIT(A), Revenue is now before us and has raised the following grounds: 1. Whether on facts and in law, the Ld. CIT(A) has erred in holding that receipts in nature of fee for technical services are to be taxed on net basis under section 44DA without appreciating the fact that the receipts were not effectively connected with the PE of assessee in Indian and thus were liable to be taxed on gross basis @ 10% u/s 115A of the IT Act, 1961. 2. The appellant craves to add, amend, modify or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentical issue arising in assessee s own case came up for consideration before the Tribunal in ITA No.5532/Del/2012, ITA No. 5372 5373/Del/2014 in assessment years 2008-09, 2009- 10 and 2010-11. While deciding the issue in order dated 29.05.2018, the Tribunal has held as under: 13. We have heard both the parties and perused all the relevant records available before us. As regard to Ground Nos. 1 and 2 for A.Y. 2008-09 appeal and Ground No. 1 for A.Y. 2009-10 2010-11, the CIT(A) in A.Y. 2008-09 s order held as under: 5. I have carefully considered the submissions made by the assessee and other material placed on record. The assessee has executed various projects in India either directly from head office or through a branch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintained and operated by branch office. The AO has not pointed out which of the relevant operations have been carried out by the head office. A project/contract has to be effectively connected either with head office or with branch office. There is no whisper by the AO of any activity from head office which can lead to conclusion that contract is effectively connected with head office. In present case, overall supervision and management has been done by the branch office and actual operational part of rendering consultancy services has been done by Indian subsidiary DHV BV India Pvt. Ltd. In view of these facts, there cannot be any other conclusion that the contract is effectively connected with branch office in India. In view of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as all the appeals are having identical facts. 7. Facts being identical, respectfully following the aforesaid decision of the Coordinate Bench, we uphold the decision of learned Commissioner (Appeals) by dismissing the ground raised. 9. Before us, no distinguishing feature in the facts of the present case and that of earlier year has been pointed out by the Revenue nor has Revenue placed any material on record to demonstrate that the order of Tribunal in assessee s own case for A.Y. 2012-13 has been set aside/overruled or stayed by higher judicial forum. We therefore following the decision of the Coordinate Bench for A.Y. 2012-13 and for similar reasons uphold the order of CIT(A) on account of taxability of the receipts and fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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