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TMI Blog2015 (8) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... ees for technical services. Moreover, as pointed out by the learned counsel, Article 12 of the DTAA would not be applicable if there is a PE in India. In view of the above, we are of the opinion that clause (BB) of Section 115A was applicable which provides for tax rate of 10% in respect of fees for technical services. This being a more beneficial provision than the Article 12 of DTAA, therefore, assessee had a right to claim the applicability of this provision of the Income-tax Act in view of the provision of Section 90(2) of the Income-tax Act. We, therefore, direct the Assessing Officer to apply Section 115A(BB) and tax the fees for technical services at the rate of 10%.- Decided in favour of assessee Disallowance of credit for tax de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee is directed against the directions of learned Dispute Resolution Panel-II, Delhi dated 17th September, 2012 for the AY 2009-10. 2. Ground No.1 of the assessee s appeal reads as under:- That on the facts and in the circumstances of the case and in law, the order passed by the ld. Assessing Officer ( AO ) is bad in law and void ab-initio. 3. At the time of hearing before us, it is stated by the learned counsel for the assessee that this ground is of general nature and should be treated as not pressed. Accordingly, the same is rejected being not pressed. 4. Ground No.2 of the assessee s appeal reads as under:- That on the facts and in the circumstances of the case and in law, the ld. AO/Ld. DRP has erred in applyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer that the tax should be charged as per Section 115A and not as per DTAA. She submitted that in view of the decision of Hon ble Apex Court in the case of Goetze (India) Ltd. Vs. CIT - (2006) 284 ITR 323, the assessee is precluded from making the fresh claim before the authorities. She further submitted that the assessee has a PE in India and, therefore, Section 115A is not applicable in the case of the assessee. 7. In the rejoinder, it is stated by the learned counsel that the decision of Goetze (India) Ltd. (supra) relied upon by the learned DR would not be applicable because the above decision was with regard to the claim of some expenses which was made by the assessee before the Assessing Officer without filing the revised ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial placed before us. After considering the facts of the case and the arguments of both the sides, we are of the opinion that the decision of Hon ble Apex Court in the case of Goetze (India) Ltd. (supra) relied upon by the learned CIT-DR would not be applicable. In this appeal before us, the only dispute is with regard to the rate of tax and the assessee rightly pointed out that the issue of rate of tax arose only after the receipt of the assessment order. Moreover, it is the duty of the Assessing Officer to charge the tax at the correct rate. Therefore, in our opinion, the assessee can agitate for the first time before the ITAT the issue regarding the rate of tax in respect of fee for technical services. 9. Section 90, sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer has charged to tax the gross amount of fees for technical services. Moreover, as pointed out by the learned counsel, Article 12 of the DTAA would not be applicable if there is a PE in India. In view of the above, we are of the opinion that clause (BB) of Section 115A was applicable which provides for tax rate of 10% in respect of fees for technical services. This being a more beneficial provision than the Article 12 of DTAA, therefore, assessee had a right to claim the applicability of this provision of the Income-tax Act in view of the provision of Section 90(2) of the Income-tax Act. We, therefore, direct the Assessing Officer to apply Section 115A(BB) and tax the fees for technical services at the rate of 10%. 12. Ground No.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned DRP was of the opinion that the income is liable to be taxed in the preceding year and therefore, DRP directed the Assessing Officer to reopen the assessment of the preceding year and tax the income on substantive basis in that year. However, the income offered by the assessee has been directed by the DRP to be assessed on protective basis. The learned counsel for the assessee stated that at present, the assessee is not disputing the protective assessment of the income of this year. His only prayer is the direction to the Assessing Officer for non-recovery of the tax on protective addition. 16. After considering the arguments of both the sides, we agree with the contention of the learned counsel. It is a settled position of law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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