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2023 (1) TMI 18 - AT - Income TaxTP Adjustment - Validity of TP order u/s. 92CA(3) - period of limitation - HELD THAT - As we hold that the order date 01.11.2019 is passed beyond the period of limitation and therefore the adjustment proposed by way of transfer pricing order u/s. 92CA(3), therefore needs to be quashed. It is ordered accordingly. TDS u/s 195 - Disallowance u/s 40(a)(ia) - payments under the head management fees - 'make availble claause' - nature of services rendered by the related parties to the AE is such that there is a knowledge that is transferred and imparted to the assessee and once the agreement is terminated, the assessee would be able to do the services based on the knowledge acquired - HELD THAT - On perusal of the Service clause in the MSA, it is noticed that the service provider is providing regular management services relating to the business administration of the company and in our considered view there is no technical knowledge was imparted to the assessee. In view of the above and placing reliance on the decision of De Beers 2012 (5) TMI 191 - KARNATAKA HIGH COURT we hold that the services rendered by the related parties to the assessee are not liable to tax deduction at source since there is no technology or technical knowledge is made available to the assessee. Appeal of the assessee is allowed.
Issues Involved:
1. Validity of Transfer Pricing (TP) Adjustment Orders. 2. Disallowance under Section 40(a)(i) for Non-Deduction of Tax at Source on Management Fees. Detailed Analysis: 1. Validity of Transfer Pricing (TP) Adjustment Orders: The primary issue revolved around the validity of two TP adjustment orders dated 31.10.2019 and 01.11.2019 issued by the Transfer Pricing Officer (TPO). The assessee contended that the order dated 31.10.2019 was issued manually without a Document Identification Number (DIN), violating CBDT Circular No.19 of 2019. The subsequent order dated 01.11.2019, although containing a DIN, was argued to be time-barred. The Tribunal examined the CBDT Circular No.19/2019, which mandates that no communication shall be issued without a DIN unless under exceptional circumstances, and such manual orders must follow specific procedures. The Tribunal found that the order dated 31.10.2019 did not conform to these requirements, rendering it invalid and deemed never issued as per Para 4 of the circular. Consequently, the TP adjustment made through this invalid order was also rendered invalid and deleted. Regarding the order dated 01.11.2019, the Tribunal noted that it was issued beyond the prescribed time limit, as per Section 92CA(3A), which requires the order to be passed 60 days prior to the expiry of the limitation period under Section 153. Since the order was issued after the deadline, it was deemed time-barred and invalid. 2. Disallowance under Section 40(a)(i) for Non-Deduction of Tax at Source on Management Fees: The second issue concerned the disallowance of management fees payments under Section 40(a)(i) due to non-deduction of tax at source. The assessee argued that the payments to its related parties for management services did not qualify as "Fees for Technical Services" (FTS) under the Double Taxation Avoidance Agreement (DTAA) with the USA and Singapore, as no technical knowledge, experience, skill, know-how, or processes were made available to the assessee. The Assessing Officer (AO) disagreed, citing the Master Services Agreement (MSA) which indicated that the service provider imparted technical knowledge enabling the assessee to apply such knowledge independently. The AO relied on the confidentiality clause in the MSA, which suggested that the assessee had access to the service provider's confidential information, thereby making technical knowledge available. The Tribunal reviewed the relevant clauses of the MSA and the DTAA provisions, emphasizing that to qualify as "making available" technical knowledge, the service must enable the recipient to apply the technology independently. The Tribunal referred to the Karnataka High Court's decision in CIT vs. De Beers India Minerals Pvt. Ltd., which clarified that mere provision of services does not constitute "making available" technical knowledge unless the recipient can utilize it independently in the future. The Tribunal concluded that the services provided were regular management services without imparting technical knowledge. Therefore, the payments did not qualify as FTS under the DTAA, and no tax deduction at source was required. Consequently, the disallowance under Section 40(a)(i) was deleted. Conclusion: The Tribunal allowed the appeal, invalidating the TP adjustment orders due to procedural non-compliance and time-barred issuance, and deleted the disallowance under Section 40(a)(i) for non-deduction of tax at source on management fees, as the payments did not qualify as FTS under the DTAA.
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