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1 - 10 of 17 (0.31 seconds)Engineering Analysis Centre Of ... vs The Commissioner Of Income Tax on 2 March, 2021
12. The aforesaid Order of the Tribunal (para 6.2) had followed the judgment
of Hon'ble Apex Court in the case of Engineering Analysis Centre of Excellence
Pvt. Ltd., Vs. CIT (supra) and held that reimbursement of computer and hardware
maintenance from entity in India cannot be FTS/FIS. Since the facts of instant
case and the facts considered by Tribunal for Assessment Year 2019-20 in
assessee's own case are identical, we allow ground 7 and its sub-grounds. It is
ordered accordingly.
Section 234C in The Income Tax Act, 1961 [Entire Act]
Section 234A in The Income Tax Act, 1961 [Entire Act]
Section 234B in The Income Tax Act, 1961 [Entire Act]
Section 154 in The Income Tax Act, 1961 [Entire Act]
Director Of Income Tax vs M/S Siemens Aktiengesellschaft on 2 July, 2018
- CIT v. Siemens Aktiongesellschaft - (reported in [2009] 177
Taxman 81 (Bombay)) para 33; and
Commissioner Of Income-Tax vs Dunlop Rubber Co. (I) Ltd. on 3 October, 1975
- CIT v. Dunlop Rubber Co. Ltd. (reported in [1982] 10 Taxman
179 (Calcutta)) pages 37-39 of the caselaw compilation.
The Commr Of Income Tax vs M/S De Beers India Minerals Pvt Ltd on 15 March, 2012
4.5 The ld. A.R. submitted that while the Assessing Officer held the above
to be FTS, the ld. CIT(A) held the receipts to be in the nature of royalty.
Under the DTAA, in order for a payment to be in the nature of fees for
technical services, the services ought to 'make available' technical
knowledge, experience, skill, know-how or processes, or consists of the
development and transfer of a technical plan or technical design.
Technology will be considered 'make available' when the person acquiring
the service is enabled to apply the technology without depending on the
provider. He placed reliance in this regard on the decision of the Hon'ble
High Court of Karnataka in the case of CIT v. De Beers India Minerals (P.)
Ltd. (reported in [2012] 21 taxmann.com 214 (Karnataka) - para 22. In
the present case, the mandatory precondition of 'make available' is not
satisfied in any of the aforesaid services, and therefore the payments are
not in the nature of fees for technical service. In view of the above, he
submitted that the reimbursements received from BY India is not taxable in
India either under the Act or under the DTAA.
Goldman Sachs & Co, Mumbai vs Dcit (It)-2(3)(2), Mumbai on 8 May, 2023
- Goldman Sachs & Co. LLC v. DCIT (reported in [2023] 152
taxmann.com 251 (Mumbai - Trib.)) - paras 16-19; and