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TMI Blog2018 (9) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... d in proposing that the Appellant has a service PE in India under Article 5(2) (k) of the DTAA without appreciating that: 3.1. Technology Transfer Agreement ("TTA") dated March 5, 2004 and International Personnel Assignment Agreement ("IPAA") dated December 5, 2005 are independent contracts for materially different purposes. 3.2. IPAA between JCB Excavators ("JCBE") and JCB India Limited ("JCB India") provides for employees sent by JCBE to JCB India on deputation (secondment) which is admittedly as per specific requirements of JCB India and not for services in relation to TTA. 3.3. Seconded employees sent as per arrangement under IPAA are employees of JCB India. 4. Without prejudice to ground No. 3, under the facts and circumstances of the case and under law, the Ld. DRP and Ld. AO has grossly erred in holding that royalty earned by the Appellant is effectively connected to alleged service PE of the Appellant in India and has failed to appreciate that: 4.1. Intangible property in respect of which royalty has been paid was wholly developed outside India: 4.2. No functions, assets, or risk associated with such intangible property is undertaken or present in India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 234B of the Act on a higher amount. 9. Under the facts and circumstances of the case and in law, the Ld. A.O erred in law: 9.1. In charging the interest amounting to Rs. 18,63,010/- under section 234C of the Act. 9.2. In levying the interest under section 234A and 234D of the Act. 9.3. In withdrawing the interest under section 244A of the Act. 10. The Ld. AO erred in initiating penalty proceedings under section 271(i)(c) of the Act for furnishing inaccurate particulars of income. That the above grounds of appeal are without prejudice to each other That the appellant reserves its right to add, alter, amend or withdraw any ground of appeal either before or at the time of hearing of this appeal." 3. JC Bamford Excavators Ltd., U.K. ('JCBE' hereafter), is a company incorporated under the laws of the United Kingdom and has its principal office at Rocester Staffordshire England ST 14 5JP. It is a non-resident Company for the purposes of the Indian tax laws and is a tax resident of U.K. under Article 4 of the tax treaty entered into between India and U.K. It is the flagship company of JCB in U.K. which develops and manufactures excavators. The return of income was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyalty income' and 'Fee for Technical Services' from JCB India amounting to Rs. 1,73,77,77,504/- and Rs. 7,29,46,861/-respectively. The said receipts are subject to tax @ 15%/10.506% of the gross amount as 'Royalty & Fee for Technical Services', being the tax rate provided under Article 13(2) of Double Taxation Avoidance Agreement entered between India and UK ('DTAA') and section 115A of the Act, as the case may be. The details of the royalty income earned form JCB India are as under:- S. No. Particulars Amount in INR 1 Royalty received from Model 3DX 1,71,22,15,010/- 2 Royalty received other than Model 3DX 2,55,62,494/- Total 1,73,77,77,504/- It is noteworthy that JCBE used to receive Royalty in the earlier years, i.e. A.Y. 2006-07 & A.Y. 2007-08, it was held by the Assessing Officer in the case of JCBE that the secondment of employees by JCBE to India resulted in establishment of a Permanent Establishment (PE) or a 'service PE' of the JCBE as per article 5(2)(k)(i) of the DTAA between India and UK. And further to it, based on the facts of the case, it was held that the payment of Royalty made by JCB India to the J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India. In the result ground Nos 1 to 3 of the appeal of the assessee are dismissed." Thus, the issue is squarely covered against the assessee as the facts are identical in the present assessment year. Hence Ground No. 2, 3, 3.1, 3.2, and 3.3 are dismissed. 6. As regards Ground No.4, 5 & 7, the Ld. AR submitted that the same are decided in favour of the assessee by the decision of the Tribunal for Assessment Year 2006-07 as well as for A.Y. 2012-13 being ITA No. 1700/Del/2017 order dated 31.07.2017. 7. The Ld. DR relied upon the Assessment Order. 8. We have heard both the parties and perused all the relevant material available on record. As regards Ground No. 4, 5 & 7, in assessee's own case for A.Y. 2006-07 as well as 2012-13, the Tribunal allowed these grounds in favour of the assessee. The relevant extract of the Tribunal's decision for A.Y. 2012-13 are as under: "10. We have carefully considered the rival contentions and also perused the arguments of the parties that issue is squarely covered by order of the coordinate bench and there is no change in the facts and circumstances of the case. The coordinate bench vide order dated 14.03.2014 in ITA No. 540/Del/2011 where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para 16.5 & 18 which read as under: 16.5...... 18. ....Since separate details of such receipts and actual expenses incurred for earning them are not available on record, we remit this matter to the file of Assessing Officer for fresh determination of the amount of income in terms of Article 7 as per our above discussion after allowing a reasonable opportunity of being heard to the assessee." 11. Therefore, respectfully following the aforesaid decision regarding whether royalty is effectively collected to the PE of the assessee is decided in favour of the assessee. Further, the issue of determination income of the service of PE of the assessee is set aside to the file of the ld Assessing Officer and decide it, in accordance with the law and as directed by para No. 18 in the impugned order of the coordinate bench for AY 2006-07. In result ground Nos. 4, 5 and 6 of the appeal of the assessee are decided accordingly." In light of the above findings and also the facts are similar in the present year, we set aside this issue to the file of the Assessing Officer with the direction to decide this issue for fresh determination after following the principles of natural justice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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