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TMI Blog2017 (11) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... two before him is justified or not. Needless to add, the assessee should be granted adequate opportunity of being heard. We make it clear that we have not considered the issue of reopening and the disallowance u/s.40(i)(a) i.e., in any manner whatsoever. Both the parties are free to take up necessary issues as deemed necessary after the order of the Ld. CIT-A is completed in terms of our remitting as above. Both the counsel fairly agreed to the above proposition. - I.T.A. No. 3510/Mum/2015 - - - Dated:- 1-11-2017 - SHRI SHAMIM YAHYA, AM AND SHRI SANDEEP GOSAIN, JM For The Appellant : Shri Niraj Sheth For The Respondent : Shri M. V. Rajguru ORDER Per Shamim Yahya, A. M.: This Appeal by the assessee is directe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) of the Act without appreciating that the payments made by your Appellant to Fractal Singapore Pte. Ltd. ('Fractal Singapore') falls within the exclusionary part of section 9(1)(vii)(b) of the Act which provides that FTS shall not be taxable in India where said services are utilized for earning income from any source outside India. 4) That based on the facts and circumstances of the case and in law, the learned CIT(A) has erred in confirming the requirement of withholding of tax at source to transactions entered by your Appellant in AY 2007-08 by applying Explanation to section 9(1) of the Act amended by Finance Act, 2010 with retrospective effect from 01/06/1976 which provides taxability of 'Fees for technical services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Circular 23 of 1969 dated July 23, 1969 was in force during the AY 2007-08 since the payments made to the Fractal Singapore were considered by the learned AO as akin to commission. 7) That based on the facts and circumstances of the case and in law, the learned CIT(A) has erred in confirming the levy of interest under section 234B of the Act amounting to INR 45,91,224. Your Appellant respectfully submits that on granting relief under above grounds, no additional interest is payable by your Appellant under section 234B of the Act. 3. The learned counsel of the assessee has also filed following addition ground: 6. That on the facts and in the circumstances of the case, the CIT(A) erred in not adjudicating the Appellant s Ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and admit the additional ground of appeal which was inadvertently omitted to be raised in the original memo of Appeal. The Appellant most humbly pray to your honour to kindly admit and adjudicate upon aforesaid ground of appeal and oblige. 5. Upon careful consideration and hearing both the ld. Counsel, we admit the addition ground. In the present case, the assessment was reopened u/s. 147 of the Income Tax Act. In the reassessment proceeding, the assessing officer made a disallowance of ₹ 1,85,90,396/- being commission paid to Fractal Private Limited, Singapore, being the associated enterprise of the assessee. The assessing officer made the disallowance u/s. 40(a)(i) of the Income Tax Act, for non-deduction of tax at source. Ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,85,90,396. Notwithstanding Ground no . 1 above, the learned AO in the order has erred in disallowing expenses of INR 1,85,90,396 under section 40(a)(i) r.w.s. Section 195 of the Act without appreciating the beneficial exception under Section 9(l)(vii)(b) of the Act available in the case of your appellant and also that the payments are outside the purview of Fees for Technical Services' under section 9(1)(vii) of the Act. Further, the learned AO erred in not applying the beneficial provisions of Article 12 of the Agreement of Double Taxation and Prevention of Fiscal Evasion between India and Singapore (hereinafter referred to as, the 'the India-Singapore tax treaty') whereby if the services are not made availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile of learned CIT(A) to complete his appellate order. 12. We have carefully considered the submissions and perused the records. We find that this tribunal in assessee's own case in ITA No.4037/Mum/2015 and CO No. 82/Mum/2017 for assessment year vide order dated 21.08.2017 has held as under: 10. Upon careful consideration, in our considered opinion, when the reopening as well as merits of the case were before the learned CIT(A), it was incumbent upon him to pass an order and adjudicate by speaking order on both aspects. In the cross objection assessee is rightly aggrieved that despite filing the appeal and raising the necessary grounds the learned CIT(A) has not adjudicated upon the merits of the case. There are catena of decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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