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TMI Blog2024 (7) TMI 1588X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of ground no. 6 of this appeal only. 02. Ground no. 6 of the appeal is as under:- "Ground No. 6- Collection of membership fees, BSPL ink charges and fees for IATA clearing House facility' (ICH facility). In relation to collection of membership fees. a. Erred in taxing the membership fees as 'business profits' under Article 7 of the India- Canada tax treaty, by treating the Indian branch office of the Appellant as a PE of the Appellant under Article 5 of the India - Canada tax treaty, without appreciating the fact that the membership fees collected by the Appellant is independent and not related to the BSP activities undertaken by the Indian branch office. b. Erred in failing to provide any reason or basis for de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appellant as being the PE of the Appellant in India as per Article 5 of the India - Canada tax treaty, without appreciating the fact that the activity of provision of ICH facility is completely independent and separate from the BSP services provided by the Indian branch office and accordingly, taxing the said receipts as 'business profits' under Article 7 of the India - Canada tax treaty. g. Erred in not accepting the contentions of the Appellant that as the ICH facility is provided by the Appellant outside India and the income is also received by the Appellant in a bank account maintained outside India, the revenues pertaining to the said ICH facility cannot be taxed as business profits in India under Article 7 of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014, at a total income of Rs.4,26,07,201/-. The assessment order under Section 143(3) read with section 144C(13) of the Act pursuant to the direction of the learned Dispute Resolution Panel was passed on 30th December 2015. The appeal of the assessee in ITA No. 587/Mum/2016 and appeal of the learned Assessing Officer in ITA No. 964/Mum/2016, travelled to the co-ordinate Bench. It passed an order on 18th January 2021, wherein the appeal of the assessee was partly allowed while appeal of the learned Assessing Officer was also partly allowed for statistical purposes. 06. Subsequently, a Miscellaneous Application No. 131/Mum/2021 in ITA No. 587/Mum/2016 was filed and disposed of vide MA order dated 24th August, 2021, wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the conditions are satisfied, no addition is warranted. The ground No. 6(c) is allowed for statistical purpose." 07. Looking carefully at Para no.7, ground no. 6(c), was allowed for statistical purposes. 08. Subsequently, the assessee filed a second Miscellaneous Application in MA No. 474/Mum/2023 which came to be decided on 23rd February 2024. In this Miscellaneous Application, it was claimed that the Tribunal had failed to record the correct submission of the assessee on the principle of mutuality and BSP Link charges. Vide paragraph no.5 of the order, the co-ordinate Bench held that certain mistakes have been crept in the order of the Tribunal while recording the facts are in turn has led to aberration in the decision maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee cannot be considered as not taxable in India on the principle of mutuality. 013. We have carefully considered the rival contentions and perused the orders of the lower authorities. The only dispute is whether surplus arising to the assessee is chargeable to tax in India based on the principle of mutuality or not. We find that the Dispute Resolution Panel in its direction for A.Y. 2014-15 dated 29th February 2017, in paragraph no.7 has considered all the issues and in paragraph no.7.4 has held that assessee qualifies as mutual concern having regard to the tests laid down by various courts. In view of the above finding of the learned Dispute Resolution Panel, which is not under challenge, there is no need for us to express any opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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