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TMI Blog2020 (2) TMI 1678X X X X Extracts X X X X X X X X Extracts X X X X ..... inafter the "ld.CIT(A)"), passed u/s. 250 of the Income Tax Act, 1961 (the 'Act'), dt. 28/03/2018, for the Assessment Years 2008-09, 2009-10, 2010-11 & 2011-12. 2. As the issues arising in all these appeals are identical, they are heard together and disposed off by way of this common order. 3. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 4. There are two issues that arise in these appeals. 5. 1) Taxability of Home Office Allocation receipts. 5.1. The ld. CIT(A) has adjudicated the very same issue for the Assessment Year 2002-03 to Assessment Year 2007-08. The ITAT uphel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the nature of advisory services. Nothing is made available to TIL by the assessee. As to whether or not giving advisory services can be considered to be making available included services, example No. 7 given in the MOU between India and USA on the DTAA throws some more light on the understanding of the Government s of India and the USA on the subject. This example is as follows :- "Facts : the India vegetable oil manufacturing firm has mastered the science of producing cholesterol free oil and wishes to market this product worldwide. It hires an American Marketing consultancy firm to do computer simulation of the world market for such oil and to advise it on marketing strategies. Are the fees paid to the US company for included se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the ruling of the AAR in the case of TIL (supra), the Assessee filed a writ petition before the Hon'ble Calcutta High Court in WP 13932 (W) of 2005 in M/S TIMKEN INDIA LIMITED AND OTHERS Vs.DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 8, KOLKATA AND OTHERS. The Hon'ble Calcutta High Court by its judgement dated 28.3.2016 was pleased to hold that s. 44D r/w s. 115A of the Act, provide for a gross basis for taxation of such FTS in the hands of the Assessee, being a non-resident corporate assessee, at the rate of 20 per cent of such fees. A similar presumptive basis of taxation on gross basis is contained in Sec.44AC of the Act and the Hon'ble Supreme Court in the case of Union of India vs. A. Sanyasi Rao & Ors. 219 ITR 330 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fees for included services under Article 12(4)(b) since there is no make available of technology. 5. I find that the home office receipts during the year under consideration are pursuant to the same agreement between the appellant and TIL which has already been considered by the Hon'ble ITAT while adjudicating the appeals for A.Ys 2002-03 to AY 2007-08. 6. Under these circumstances, respectfully following the decision of Hon'ble ITAT in appellants own case for AY 2002-03 to AY 2007-08 in ITA No. 387 & 398/Kol/2010 dated 29 Nov 2017, the addition on account of home office allocation is deleted. These grounds are adjudicated in favour of the appellant-company." 5.2. As the ld. CIT(A) followed the decision of the Co-ordinate Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and were later on reimbursed by TIL to the Assessee in India. We are of the view that there is no basis for the AO to conclude that the payment of reimbursements were in the nature of FTS. As rightly contended on behalf of the Assessee, the Assessee not the ultimate beneficiary of the sum in question nor did it render any service to TIL. There is no basis on which the AO came to the conclusion that the sum in question was FTS in the hands of the Assessee. Even assuming that the sum in question is in the nature of FTS, under Article 12(4)(b) of the DTAA it is only when technical or consultancy services rendered by the Assessee makes available technical knowledge, experience or skill that the sum in question can be taxed in the hands of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any technical skill, knowledge, etc. to the service recipient. 5. The chargeback receipts during the year under consideration are similar to the receipts as adjudicated by the Hon'ble Tribunal in AY 2002-03 to AY 2007-08. Hence, the above observations of the Hon'ble ITAT are applicable to the AY 2008-09 under consideration. 6. Under these circumstances, respectfully following the decision of Hon'ble ITAT in appellants own case for AY 2002-03 to AY 2007-08 in ITA No. 387/Kol/2010 dated 29 Nov 2017, the addition on account of chargeback receipts is deleted." 6.2. As the ld. CIT(A) has followed the decision of the Tribunal in the assessee's own case, on the very same issue, we see no reason to interfere in the same. Hence, we uphold th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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