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2023 (1) TMI 170 - AT - Income TaxAddition u/s 44DA - PE/Business Connection of the assessee - scope of phrase 'effectively connected with' - income disclosed by the assessee as Overseas Consultancy Income and offered on gross basis of FTS income is normal business and profession income u/s 44DA being effectively connect to the PE/ business collection of the assessee - HELD THAT - As decided in assessee own case 2022 (10) TMI 905 - ITAT DELHI effective connection comes into play if activities in. order to deliver contractual obligations stand performed through project office. Since in this Case, situs of performance of the activities is outside India, the effective connection is not there with the project office. In this case, the assessee has offered the fee for technical services on gross basis and the activities conducted outside India are not effectively connected with PE in India, therefore, the addition made under Section 44DA of the I.T. Act is liable to be deleted. In view of the discussion made above. On careful examination and consideration of the findings of the ld. CIT (Appeals), the evidences placed on record by the assessee, we do not see any infirmity in the order passed by the ld. CIT (Appeal) in holding that the assessee has rightly offered the OCI as fees for technical services under the provisions of section 115A of the Act and the addition made under section 44DA of the Act is liable to be deleted. Ground raised by the Revenue is rejected.
Issues:
- Interpretation of Section 44DA of the Income Tax Act, 1961 regarding taxation of overseas consultancy income - Determination of whether income earned from services rendered from India and overseas is effectively connected to Permanent Establishment (PE)/Business Connection in India - Assessment of income offered as Fees for Technical Services (FTS) under Section 115A of the Act - Application of Rule 10 of the Income Tax Rules for estimating income when expenditure details are not provided Analysis: Interpretation of Section 44DA: The case involved a dispute over the application of Section 44DA of the Income Tax Act, 1961 to the overseas consultancy income earned by a Hong Kong-based company with a Project Office (PO) in India. The Assessing Officer (AO) contended that income disclosed as FTS was effectively connected to the PE/Business Connection in India, justifying taxation at a higher rate. The AO invoked Rule 10 of the Income Tax Rules to estimate the income, leading to an addition of Rs. 33,896,437 to the assessed income. Effectively Connected Income: The Tribunal considered whether the services rendered by overseas employees from Hong Kong for projects in India were effectively connected to the PO/PE in India. The Tribunal analyzed the contracts, invoices, and work arrangements to determine the nature of the services provided and their connection to the Indian operations. It was observed that the services performed from overseas were not directly linked to the Indian PE, and the income from such services should not be taxed under Section 44DA. Assessment of FTS Income: The Tribunal reviewed the assessment order and the arguments presented by both parties regarding the classification of income as Fees for Technical Services under Section 115A of the Act. The Tribunal noted discrepancies in the AO's approach and the lack of evidence to conclusively determine the income attributable to Indian operations. The Tribunal emphasized the need for a clear connection between the income and the PE for taxation purposes. Application of Rule 10 and Judicial Precedents: The Tribunal referenced previous judgments, including decisions of the Coordinate Bench, to support its findings. Citing relevant case law, the Tribunal highlighted the importance of establishing an "effective connection" between income and the PE for tax assessment. The Tribunal emphasized that mere relation to the project office was insufficient, and a direct connection was necessary for taxation under Section 44DA. Conclusion: Based on the analysis of the facts, contractual arrangements, and legal provisions, the Tribunal upheld the order of the CIT(A) to delete the addition made under Section 44DA. The Tribunal dismissed the Revenue's appeal, emphasizing consistency with previous decisions and the lack of merit in the grounds raised by the Revenue. The judgment clarified the interpretation of tax provisions and the requirement for a direct connection between income and the PE for taxation purposes.
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