TMI Blog2022 (11) TMI 1313X X X X Extracts X X X X X X X X Extracts X X X X ..... in USA only regarding the four folded services i.e. Cloud Infrastructure Managed Private Cloud, Colocation, Mainframe and Data Recovery services. Revenue could hardly dispute that the even if we agree to Revenue s arguments under section 9(1)(vii) r.w.s. 9 (2) Explanation that the above services give rise to application of Sec.9 s applicability the assessee is found very well entitled for the benefit of India USA double taxation avoidance agreement DTAA u/s 90(2) of the act wherein Article 12 (4) (b) stipulates taxability of the income arising therefrom only if the services concerned make available technical knowledge to the recipient/payer Revenue could not refer to any material in the case file satisfying the forgoing make ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to fulfil all conditions as laid down in clause (b) of section 9(l)(vi) of the I T Act. 2. On the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in treating the FIS received by the assessee from Infosys Ltd, being not accrued or arose in India, without appreciating the fact that, the assessee had fulfilled all the conditions as enumerated in clause (b) of Article 12(4) of India-USA DTAA. 3. The appellant craves leave to add to, alter, amend, modify or withdraw all or any of the above ground(s) of appeal either at the time of the hearing or before the-hearing of this appeal. 3. Both the learned representatives next invited our attention to the CIT(A) s detailed discussion reversing the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in USA. The Appellant also provides Colocation services i.e. that allow Infosys to store their own equipment/hardware which is utilized by Infosys for provision of services to its customer i.e McDonalds. These services by its very nature can only be provided/utilized/ availed only where Colocation facilities/infrastructure is situated (which is in Philadelphia 1500 Spring Garden, 19130) Thus Infosys is availing and utilizing the services of the Appellant in USA, to earn income from its customer i.e. McDonald s located in USA (i.e. from a source outside India). Infosys has availed the services from the Appellant for in turn rendering services to its customer outside India and hence the source of income lies outside India. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indeed provided fee for technical services FTS to M/s. Wipro Ltd. and therefore, the Assessing Officer had rightly invoked deeming fiction of income u/s. 9(1)(vii) read with Sec. 9(2) Explanation that mere absence of payee/assessee s permanent establishment PE in India would not be fatal to the Revenue s cause. He also quoted this tribunal s co-ordinate bench order in Groupo Antolin Irausa SA V/s. DDIT ITA NO. 1442/PN/2017 that assessee s services rendered to M/s. Wipro Ltd. in USA give rise to its taxability in India only. 5. We find no merit in Revenue s instant arguments. This is for the precise reason that the assessee herein ; M/s. Sungard Availability Services LLP (a USA based entity) had entered into a service agreement with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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