TMI Blog2022 (9) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in Protocol to India-Sweden DTAA, in turn, relying on India-Portuguese DTAA and claimed that the amount was not chargeable to tax. Per contra , the AO followed the orders passed by the DRP for earlier years deciding the issue in favour of the Revenue. It is seen that the subject matter under consideration came up for consideration before the Tribunal for the immediately preceding assessment year 2016-17 [ 2021 (6) TMI 667 - ITAT PUNE] following its order for earlier years, has held that the amount received by the assessee towards Management Service fees is not chargeable to tax. DR fairly accepted the position. Thus we overturn the impugned order and direct not to include amount in the assessee s total income. These grounds are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nikhil Pathak For the Revenue : Shri Shishir Srivastava ORDER PER R.S. SYAL, VP : This appeal by the assessee is directed against the final assessment order dated 18-05-2020 passed by the Assessing Officer (AO) u/s.143(3) read with sections 144C(13) of the Income-tax Act, 1961 (hereinafter also called the Act ) in relation to the assessment year 2017-18. 2. The appeal is time barred by 166 days. The ld. AR stated that the delay pertains to Covid-19 Pandemic and hence, covered by the judgment of Hon ble Supreme Court in Cognizance for Extension of Limitation, In re 438 ITR 296 (SC) read with judgment in Cognizance for Extension of Limitation, In re 432 ITR 206 (SC) dated 08-03-2021 and 421 ITR 314 where the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered under India-Sweden Treaty. He also examined India-Portuguese treaty and found that the amount was also covered within the scope of its Article 12(4). The Dispute Resolution Panel (DRP) echoed the draft order. This is how, the AO made an addition of Rs.17.43 crore towards Management Support fees by taking it as fees for technical services. Aggrieved thereby, the assessee has come up in appeal before the Tribunal. 4. We have heard the rival submissions and perused the relevant material on record. The assessee rendered Managerial Support Services to its Indian entity. It claimed the benefit of Most Favoured Nation (MFN) clause contained in Protocol to India-Sweden DTAA, in turn, relying on India-Portuguese DTAA and claimed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately preceding assessment year by taking departure from the Tribunal orders for the earlier years on the ground that the facts were not similar inasmuch as the Revenue has been debarred from this year onwards from contesting the favourable directions before the Tribunal given by the DRP as incorporated in the final assessment order. Aggrieved thereby, the assessee has come up in appeal before the Tribunal. 7. After considering the rival submissions and perusing the relevant material on record, it is seen that two receipts, viz., Leadership seminars and Human Resource Services are involved. The assessee claimed the amounts as not chargeable because of India-Portuguese DTAA. In principle, there can be no controversy about the applicabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 4 of Article 12, it can be seen that the term Fees for Included Services has been defined to mean any consideration for rendering technical or consultancy services, if such services, insofar as it is relevant for our purpose, make available technical knowledge, experience, skill, know-how or processes or consist of the development and transfer of a technical plan or technical design which enables the person acquiring the services to apply the technology contained therein. This issue came up for consideration before the Tribunal for the immediately preceding assessment year in which the receipt from HR services was Rs.4.72 lakh and Leadership training fees Rs.40.41 lakh. For smallness of the amount, the ld. AR did not press the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional evidence which, inter alia , is required to be examined afresh to precisely determine the nature of HR services, we consider it expedient to set aside the impugned order on the issue of Leadership training and HR services. We order accordingly and remit the matter to the file of the AO for examining if both the receipts are covered under Article 12(4)(b) of the DTAA between India and Portuguese. The AO will examine the details of the receipts under both the heads for evaluating if such receipts, other than Leadership training, are covered under Article 12(4)(b) of the DTAA between India and Portuguese for determining their taxability or otherwise. The receipt on account of Leadership training cannot be charged to tax in the light ..... X X X X Extracts X X X X X X X X Extracts X X X X
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