TMI Blog2023 (7) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... Hygiene Health [ 2022 (6) TMI 1411 - ITAT MUMBAI] wherein after following the decision of ITAT Pune [ 2022 (2) TMI 769 - ITAT PUNE] it is held that there is no requirement of separate notification for importing the beneficial treatment from the agreement. Therefore, respectfully following the aforesaid decisions we are of the considered view that CBDT Circular No. 3/2022 dated 03.02.2022 is not applicable to the present appeal, therefore, assessee is entitled to claim the benefit of the restricted definition under India-Portugal DTAA. Since, the assessee have been found not to have made available any technical knowledge experience or skill or knowhow, therefore, the impugned services received by the assessee cannot be taxed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing of the appeal, so as to enable the Honourable Income-tax Appellate Tribunal to decide this appeal according to law. 2. The fact in brief is that the assessee company Dieffenbacher GmbH Maschinen Und Anlagenbau, 20 was incorporated in the tax/resident of Germany and filed its return of income on 30.11.2018 declaring total income of Rs. 56,01,540/-. The case was selected for scrutiny and notice u/s 143(2) of the Act was issued on 22.09.2019. The assessee company has entered into a contract with Greenply Industries Ltd. (Greenply)to render training, supervision and consultancy in connection with installation services to set up HDF/MDF b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowhow was made available to the Indian client. The A.O further stated that assessee has received managerial technical and consultancy services mainly from CBV, spanning the entire gamut of commissioning and installation of plant etc. and enriching it with the knowledge of enduring nature. The A.O stated that the impugned receipt of Rs. 17,13,981/- certainly falls in the category which qualifies to be FTS under the Act and also under article 12(4) of India Belgium read with India-Portugal DTAA. Therefore, payment of aforesaid remittances was held to be liable for TDS @ 10% + surcharge + EC. The A.O held that technical knowledge was clearly in the nature of FTS falls in the definition of provisions of Sec.9(1)(vii) of the Act as the fees ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regard there is a tax treaty between India Portugal (being OECD opportunity company) as a restricted scope of taxation for fees for included services (entered on 11.09.1998). The ld. Counsel submitted that the make available clause which is mandatory to tax any income characterised as FTS in case of a tax recipient of Portugal was also be required to be applied in the case of the assessee. The ld. A.R has also filed paper book comprising various judicial pronouncements and particularly referred the case of Walters Kluwer Financial Services Belgium NV Vs. DCIT, Circle 3(1)(1) vide ITA No. 8267/Del/2019 dated 28.12.2022 On the other hand, the ld. D.R supported the order of lower authorities and referred CBDT Circular No. F. No.503/1/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complied with as contained in Sec. 90 of the IT. Act, therefore, restrictive definition of FTS as in the India-Portugal DTAA cannot be extended into the India-Belgium DTAA. Regarding the decision of DRP that MFN is not applicable in the case of the assessee by referring the CBDT Circular as cited above, we noticed that in the case of GRI Renewable Industries S.L. Vs ACIT vide ITA No. 202/Pun/2021 the coordinate bench of Pune Tribunal held that CBDT Circular dated 03.02.2022 cannot be invoked for the assessment year which is much prior to the CBDT Circular of the year 2022 the finding of the Tribunal is as under: 13. Notwithstanding the above, it can be seen that the CBDT has panned out a fresh requirement of separate notification t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mum/2021) dated 10.06.2022 (Mum Trib) wherein after following the decision of ITAT Pune as referred supra it is held that there is no requirement of separate notification for importing the beneficial treatment from the agreement. Therefore, respectfully following the aforesaid decisions of the coordinate benches of the Tribunal, we are of the considered view that CBDT Circular No. 3/2022 dated 03.02.2022 is not applicable to the present appeal, therefore, assessee is entitled to claim the benefit of the restricted definition under India-Portugal DTAA. Since, the assessee have been found not to have made available any technical knowledge experience or skill or knowhow, therefore, the impugned services received by the assessee cannot be taxed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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