TMI Blog2023 (3) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... ot thoroughly verified the materials / document that were filed by the assessee. Infact before the DRP, various documents filed by the assessee has not been considered. As has been submitted by Ld.CIT.DR that identical issue has been remanded to the Ld.AO for fresh consideration for A.Y. 2014-15 [ 2022 (3) TMI 1509 - ITAT BANGALORE] we do not wish to express our opinion in the present facts as it would prejudice the rights of assessee as well as the revenue. In the interest of justice, we deem it proper to remand this issue back to Ld.AO to be decided along with A.Y. 2014- 15 as there are voluminous details available in the present assessment year under consideration before us. It is appropriate to remit the issue in dispute to the file of the Ld.AO for deciding the comparability of these transactions in the light of the judgment of the Hon ble Supreme Court in Engineering Analysis Centre of Excellence Private Limited (supra) and the decisions relied by the Ld.AR reproduced herein above. Accordingly, the issue in dispute is remitted to the Ld.AO for fresh decision with the above directions. In the result the appeal of the assessee is partly allowed for statistical purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered into between India and Malaysia. 3.2 The learned AO has erred in not appreciating that the income of the appellant constitutes business profits under article 7 of the DTAA, and in the absence of a Permanent Establishment in India. the business profits is not chargeable to tax in India under the Treaty. 4. Ground relating to TDS Credit 4.1 The learned AO has erred in giving TDS Credit of Rs.36,15,113/- as against an amount of Rs.40,70,116/- claimed in the return of income. 5. Prayer 5.1 In view of the above and other grounds to be added at the time of hearing, the appellant prays that the assessment order passed under section 143(3) r.w.s 144C be quashed or in the alternative the aforesaid grounds including relief as prayed for in these grounds be allowed. The appellant prays accordingly. 2. Brief facts of the case are as under: The assessee is a non resident company incorporated in Malaysia. It is engaged in the business of provision of distant education courses to individuals for various post-graduation courses. During the FY 2015-16, the assessee provided services to certain Indian companies like Aditya Birla Management Corporation P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of assessment proceedings for the year under consideration, the assessee was again asked to submit the formal agreement that it had with the Indian companies if any. This time, the assessee submitted copies of sample agreements with some of the Indian Companies. The Ld.AO after going through one of the sample agreement submitted as the Master Service Agreement with ABMC, analysed in detail, the scope of work, mentioned in the agreement. The Ld.AO noted that EduNxt has made available the GlobalNxt Platform to ABMC participants of the program . (para 3.3). The platform comprises of a customized program designed for the employees of ABMC by the faculties and the GlobalNxt platform (owned by the assessee) is where the program is hosted. The Ld.AO thus was of the opinion that, the service fee payment by ABMC to the assessee is in the nature of royalty as per the definition contained in the Act. The Ld.AO held that, as per section 5(2), the total income of the previous year earned by the assessee who is a non-resident includes all income from whatsoever sources that is derived which is: Received or deemed to be received in India or Accrues or arises or is deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the assessee does not provide the customer any right to use the copyright in the database. It is submitted, the assessee does not transfer any ownership right to the subscriber such as right to copy the database for reproduction and sale, right to grant license to any person who wishes to use the database. 4.3 He submitted, by providing access to the database, the assessee does not impart any information relating to underlying experience, skill, etc., which is required for evolving the database. It was also submitted that assessee do not share its experience, technique, or methodology employed in evolving the database with the subscriber. It does not provide any right to the subscriber to use any industrial, commercial or scientific equipment. Thus, he submitted, the subscription fee received by the assessee for providing publicly available information cannot be treated as royalty. He placed reliance on the following decisions: DIT(IT) v Dun Bradstreet Information Services India (P.) Ltd [2012] 338 ITR 95 (Bombay) Dun Bradstreet Espana. S.A., In re [ 005] 272 ITR 99 (AAR) Elsevier Information Systems GmbH v DCIT(IT) [2019] 106 taxmann.com 401 (Mumbai - Trib.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est under Rule 29 of the ITAT Rules for the same to be admitted. The Ld.CIT.DR referred to following decision to support of her argument that the issues may be remanded to the Ld.AO for proper verification. Decision of Hon ble Supreme Court in case of Hukumchand Mills Ltd. vs. CIT reported in 1967 SCR(1) 463 Decision of Hon ble Mumbai Tribunal in case of Linklaters LLP vs. ITO in ITA Nos. 4896 5085/Mum/2003 by order dated 16/07/2010 Decision of Hon ble Mumbai Tribunal in case of Volkswagen Finance Pvt. Ltd. vs. ITO in ITA No. 2195/Mum/2017 by order dated 19/03/2020. 4.8 The Ld.DR relied on the decision of Coordinate Bench of this Tribunal in assessee s own case for A.Y. 2014-15 wherein similar issue has been remanded to the Ld.AO for fresh consideration in the light of principles laid down by Hon ble Supreme Court in case of Engineering Analysis Centre of Excellence Pvt. Ltd. vs. CIT reported in (2012) 432 ITR 471. 4.9 On the contrary, the Ld.AR objected for the same to be admitted. We have perused the submissions advanced by both sides in respect to the request made by the Ld.CIT.DR under Rule 29 of I.T. Rules, 1963. 5. We have perused the submission advan ..... 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