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1 - 10 of 10 (0.26 seconds)Article 12 in Constitution of India [Constitution]
Ishikawajma-Harima Heavy Industries ... vs Director Of Income Tax, Mumbai on 4 January, 2007
12. The Learned Counsel for the Assessee submitted that
payment in question is nothing but only for testing of the quality of
the product at the A.E. place and therefore, there is no transfer of any
technology or knowledge much less the making available of any
knowledge or technical service by the A.E. to the assessee. He has
further submitted that even if the A.E. of the assessee is using its
expertise and knowledge in the process of testing the product of
assessee the same i.e., a test for quality purpose and therefore, it does
not fall under the definition of fee for technical services either under
the provisions of Section 9(1)(vii) or under Article 12 of the India-US
DTAA. The Learned Counsel for the Assessee further contended that
since assessee has not incurred any expenditure on the installing, any
facility or acquiring any technology, therefore, this expenditure cannot
be capital in nature. He has further contended that even if the services
are utilised in India, it has not been rendered in India. Therefore, it
will not fall under the definition of 'fee for technical services' or
'included services'. He has relied upon the decision of Hon'ble
Supreme Court in the case of Ishikawajima-Harima Heavy Industries
Ltd., vs. Director of Income Tax, Mumbai (2007) 288 ITR 408 (SC). The
Learned Counsel for the Assessee has further submitted that prior to
the Amendment in the provisions of Section 9(1) by way of inserting
Explanation, even this payment does not fall under the definition of
'fee for technical services'. The Amendment made in the provisions of
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ITA.No.75/Del./2011
M/s. Gates India (P) Ltd., New Delhi.
Rama Vision Ltd., New Delhi vs Acit, New Delhi on 18 November, 2016
Section 9(1) cannot be applied in the case of the assessee when the
transactions pertains prior to the said amendment under the statute.
Thus the Learned Counsel for the Assessee submitted that the
Doctrine of Impossibilities of Performance is applicable in the case of
the assessee when the transaction was completed prior to the
amendment in the statute. Assessee would not be expected to deduct
the tax at source on the basis of subsequent amendment. He has
relied upon the decision of the Tribunal in the case of Kerala Vision
Ltd., vs. ACIT (2014) 35 ITR 81 (Tribu.) (ITAT-Coc.)
Director Of Income Tax (International ... vs Nokia Networks Oy, on 7 July, 2015
The Learned
Counsel for the Assessee has also relied on the decision of Hon'ble
Delhi High Court in the case of Director of Income Tax vs. Nokia
Networks OY (2013) 358 ITR 259 (Del.) (HC) and submitted that the
Hon'ble Delhi High Court has held that the amendment in the statute
cannot change the provisions of treaty. Therefore, when the treaty is
having an overriding effect then the amendment in the statute
becomes irrelevant.
Section 9 in The Companies Act, 1956 [Entire Act]
Bayer Pharmaceuticals P.Ltd, Mumbai vs Acit Cir 15(3), Mumbai on 25 November, 2016
respect of various incentives and benefits available to the assessee for
making export to the A.E. The assessee sought the adjustment in respect of
duty drawback of import duty @ 6.13%; market and selling expenses at
5.57% and loan working capital requirement on 1.13%. All these
adjustments were granted by the TPO while computing the ALP under CUP
and therefore, the TPO allowed the adjustment of 12.83% from average
unrelated price of the commodities to determine the ALP of export made to
the A.Es. The Ld. D.R. has submitted that once TPO accepted the quantified
adjustment as claimed by the assessee while computing the ALP under CUP
method in respect of the export made to the A.E. then the CIT(A) is not
justified in deleting the adjustment proposed by the TPO and made by the
A.O. in respect of these international transactions. He has relied upon the
order of the TPO. The Ld. D.R. has relied upon the decision of the Mumbai
Bench of the Tribunal in the case of Serdia Pharmaceutical P. Ltd., vs. ACIT
44 SOT 391.
The Companies Act, 1956
I.P. India Pvt. Ltd.(Now Known As ... vs Acit, New Delhi on 19 April, 2017
(ii) BA Continuum India (P) Ltd., vs. ACIT (2013) 40 taxman.com
311 (Hyd.) (Tribu.),
Commissioner Of Income Tax Vi vs Virtual Soft Systems Ltd. on 28 April, 2015
(v) CIT vs. Virtual Soft Systems Ltd., (2012) 341 ITR 593 (Del.)
6.2. Alternatively, the Learned Counsel for the Assessee
submitted that in case depreciation is not excluded for the purpose of
computing the margins of the assessee as well as comparables,
atleast, adjustment must be given on account of difference of
depreciation provided by the assessee as well as comparable
companies.
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