Gujarat High Court
Commissioner Of Income Tax ... vs Welspun Corporation ... on 3 October, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
O/TAXAP/736/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 736 of 2017
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COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION AND
TRANSFER PRICING)....Appellant(s)
Versus
WELSPUN CORPORATION LIMITED....Opponent(s)
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Appearance:
MR NITIN K MEHTA, ADVOCATE for the Appellant(s) No. 1
MR B S SOPARKAR, CAVEATOR for the Opponent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 03/10/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Leave to amend.
2. Tax Appeal is ADMITTED for considering following substantial questions of law.
[A] Whether the Hon'ble ITAT has erred in law and on facts in holding that payment made to non resident export commission agents does not fall in definition of fee for technical service under section 9(1)(vii) of the Act as well as the relevant article of the DTAA ?
[B] Whether the Hon'ble ITAT has erred in law and on facts in holding that payment received by commission agents is not for the service per se but for securing business orders for the assessee, irrespective of whether any technical services are rendered during the course of such Page 1 of 3 HC-NIC Page 1 of 3 Created On Sat Oct 07 09:32:06 IST 2017 O/TAXAP/736/2017 ORDER agency commission business ?
[C] Whether the Hon'ble ITAT has erred in law and on facts in holding that in view of absence of FTS clause in the corresponding DTAA, the payment made to nonresident is not taxable either under provision of IT Act or article "dealing with other income" of respective DTAA, even though receipts in question are in the nature of fees for technical services in the hands of recipients ?
[D] Whether the Hon'ble ITAT has erred in law and on facts in holding that payment made for subscription charge to Metal Bulletin (UK); and The Datamyne Inc. (USA) does not fall under definition of royalty under section 9(1)(vi) of the income tax Act, 1961 as the same is not for use of copyright of specialized database but only for access to the such database ?
[E] Whether the Hon'ble ITAT has erred in law and on facts in concluding that Sec.206AAA of the I.T. Act, 1961, which provides a higher tax @ 20% in the event of foreign entry not obtaining the Permanent Account Number in India cannot be pressed into service to impose obligation on the NonResidents to obtain PAN?
[F] Whether on the basis of the facts and in circumstances of the case and in law, Hon'ble Income Tax Appellate Tribunal was correct in holding that payment made to Bmt Fleet Technology, Canada does not fall in definition of fee for technical service in view of "make available" clause in the concerned treaty although Assessing Officer has given a categorical finding that make available clause is not necessary for treating it as fee for included services under DTAA as there is development and transfer of a technical plan or technical design to the assessee by the Canadian party ?
[G] Whether the Income Tax Appellate Tribunal was right in law in holding that the explanation to section 9 of the Income Tax Act, 1961 brought into statute by Finance Act, 2010, with effect Page 2 of 3 HC-NIC Page 2 of 3 Created On Sat Oct 07 09:32:06 IST 2017 O/TAXAP/736/2017 ORDER from 01.06.1976, substituting the earlier explanation, would not apply to an income by way of fee for technical service where the payment was made prior to interpretation of the said explanation ?"
2. Learned advocate Shri Soparkar waived notice for admission.
3. To be heard with Tax Appeal No.737 of 2017.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) ANKIT Page 3 of 3 HC-NIC Page 3 of 3 Created On Sat Oct 07 09:32:06 IST 2017