9911796707
TMI Blog2018 (12) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... at the issue raised by assessee is purely legal in nature and the same is admitted for adjudication. The assessee has also pleaded that the evidence in this regard could not be furnished before the Assessing Officer but the same is being filed before the Tribunal by way of additional evidence. Admitting the same, we direct the AO to verify the copies of invoices in this regard and adjudicate the issue in turn, giving reasonable opportunity of hearing to the assessee. The assessee is in any case, is entitled to claim the credit for TDS against the aforesaid receipts and we direct the Assessing Officer to allow the same in accordance with law after verifying the claim of assessee. - ITA No.1440/PUN/2018 And SA No. 113/PUN/2018 - - - Dated:- 11-12-2018 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Assessee : Shri Abhishek Tilak For The Revenue : Shri S.B. Prasad, CIT ORDER PER SUSHMA CHOWLA, JM: The appeal filed by assessee is against order of ACIT (International Taxation), Circle-1, Pune, dated 01.08.2018 relating to assessment year 2014-15 passed under section 143(3) r.w.s. 144C(13) of the Income-tax Act, 1961 (in short the Act ). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia (Germany) and carries out no operations in India, no income can be attributed to the alleged PE in India under Article 7 of the Tax Treaty, and even otherwise pursuant to Article 7(3) of the Tax Treaty, the taxation on gross basis at higher rates of 20% on gross basis under Section 115A / 44D of the Act is unwarranted and the taxation ought to be at 10% on gross basis under Articles 11 and 12 of the Tax Treaty as offered in the Return of income and the AO be directed accordingly. Ground No. 3 - Denial of recourse to Non-discrimination clause - Article 24 of the Tax 3.1. Without prejudice to the above and on the facts and the in the circumstances of the case, the AO has erred in proposing and the DRP has further erred in not interfering with the AO's conclusion of not granting benefit of Article 24 of the Tax Treaty relating to Non-Discrimination to the facts of the Appellant's case. 3.2. The AO and the DRP failed to appreciate that under Article 24 - 'Non-Discrimination of the Tax Treaty, the Appellant and its alleged PE in India cannot be subjected to taxation requirement which is more burdensome than the taxation of Resident in India for its alleged PE a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case, and in law, the AO has erred in construing reimbursement of expenses from its Indian subsidiary as income of the Appellant and making an addition of ₹ 49,85,935/- to its total income. 4.2 The AO failed to appreciate that the amounts recovered from Indian subsidiary are for reimbursement of expenses and hence not liable to tax. 4.3 It is prayed that the AO be directed to delete the addition of ₹ 49,85,935 made to its total income. Ground 5 Non grant of credit of TDS deducted on reimbursement of expenses ₹ 5,,10,826/- 5.1 On the facts and in the circumstances of the case, the AO failed to grant credit of the tax withheld by the Indian subsidiary on a conservative basis on the reimbursement of expenses. 5.2 It is prayed that the AO be directed to grant the corresponding credit for tax deducted at source by the Indian subsidiary. 5. The assessee also furnished an application for admission of additional grounds of appeal along with additional evidence, admittedly which were not filed before the authorities below. 6. Briefly, in the facts of the case, the assessee was a Non-resident entity of Germany and was rendering servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 in ITA Nos.496/PUN/2016, 222 223/PUN/2017 along with SA Nos.123 124/PUN/2017, relating to assessment years 2011-12, 2012-13 2013-14, dated 15.12.2017, in turn, relying on earlier decisions and have held that there is no merit in invoking provisions of section 115A of the Act in respect of interest and 115A r.w.s. 44DA of the Act in respect of support / royalty services; the receipts are to be taxed in the hands of assessee under Indo-German Treaty @ 10%. 9. The issue arising before us is squarely covered by earlier orders of the Tribunal, on which we are placing reliance but for the sake of brevity, the same are not being reproduced. The Revenue has filed appeal before the Hon ble Bombay High Court. Since the appeal against the order of Tribunal is pending before the Hon ble Bombay High Court, but the Revenue has not brought on record any change in facts for the year under consideration. Accordingly, following the same parity of reasoning as in earlier order, grounds of appeal No.1 to 3 raised by assessee on the issue of assessability of royalty income and interest is decided in favour of assessee. 10. The grounds of appeal No.4 and 5 raised in original grounds of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
