9911796707
TMI Blog2022 (12) TMI 1567X X X X Extracts X X X X X X X X Extracts X X X X ..... aising following grounds: "1 On the facts and in the circumstances of the case and in law, the Learned Deputy Commissioner of Income-tax (International Taxation) 3(2)(2), Mumbai ('the Learned AO') and the Dispute Resolution Panel ('the DRP5) erred in holding the amount for business support services of INR 4,15,23,335 and referral fees of INR 6,40,856 as 'Fees for technical services' under Article 12 of the Double Taxation Avoidance Agreement entered into between India and Singapore ('the DTAA1) despite the fact that the Appellant has not 'make available' any technical knowledge, experience, skill, know-how, processes to the Indian Associated Enterprise in terms of Article 12 of India-Singapore DTAA. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essful. Consequent to the directions of the DRP, the Assessing Officer passed the final assessment order which is the subject matter of appeal. The ld. Authorized Representative for the assessee submits that the assessee has provided services to its Indian AE in pursuance to inter company agreement dated 01/01/2012. The said agreement is at page 309 of the paper book. The scope of services is defined in the said agreement. The currency of the agreement is perpetual unless terminated by either of the parties giving 30 days written notice to the other party. The Assessing Officer erred in coming to the conclusion that fees received by the assessee for providing business support services is in fact managerial and consultancy service as defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions made by rival sides and have perused the orders of authorities below. The solitary issue raised in appeal by the assessee is against the addition made on account of fees received by the assessee for providing business support services, by bringing the same in the ambit of "Fee for Technical Services". The assessee provides business support services to Michael Page International Recruitment Pvt. Ltd. in pursuance to the intercompany agreement dated 01/01/2012. The scopes of services to be provided by the assessee (service provider) to its Indian AE (Beneficiary) as per the said agreement are as under: "1. SCOPE OF SERVICES 1.1 The Service Provider will provide the following Services to the Beneficiary: Management support; Admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same services without recourse to the service provider, the services cannot be said to have made available the recipient of services. A mere incidental advantage to the recipient of service is not enough. The test is the transfer of technology, but then it is not even the case of the revenue that there is a transfer of technology, and what is highlighted is the incidental benefit to the assessee, which is treated as an enduring advantage. As observed in the binding judicial precedents referred to above, in order to invoke "make available‟ clause, "to fit into the terminology "making available", the technical knowledge and skill must remain with the person receiving the services even after the particular contract comes to an end" and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee and the facts of the assessee's offering the same income to tax in the immediately preceding assessment years, nothing really turns on the stand of the assessee in the immediately preceding assessment years. There is no res judicata in the income tax proceedings and the mere fact of an assessee's offering an income to tax in an earlier year can be a reason enough to negate his otherwise lawful claim of nontaxability. The matter in required to be examined on merits, and once we find it to be an acceptable claim on merits, such taxability in the immediately preceding assessment years cannot come in the way of the assessee's lawful claim. This objection of the authorities below, therefore, does not deserve our approval either. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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