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TMI Blog2019 (3) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... istence of Permanent Establishment in India. Therefore, as prayed by the learned AR, the disputed matter is restored to the file of the AO for the limited purpose to examine and inquiry whether there is any permanent establishment in India. In case if it is found with supporting evidence and documentation and also the assessee proves that there is no permanent establishment in India, then the assessee be granted the benefit of non-taxability - Assessee’s appeal is allowed for statistical purposes. - IT(IT)A No.2101/Bang/2016 - - - Dated:- 28-2-2019 - Shri B.R. Baskaran, Accountant Member And Shri Pavan Kumar Gadale, Judicial Member For the Appellant : Shri Sampath Raghunathan, Advocate. For the Respondent : Shri Pradeep Kumar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs under section 271(1)(c) of the Act. 3. Relief a) The appellant prays that directions be given to grant all such relief arising from the above grounds and also all relief consequential thereto. b) The appellant craves leave to add to or alter, by deletion, substitution, modification or otherwise, the above grounds of appeal, either before or during the hearing of the appeal. c) Further, the appellant prays that all the above adjustments/additions /disallowances made by the learned AO and upheld by the learned DRP are bad in law and liable to be deleted. 2. Brief facts of the case are that the assessee is a nonresident company incorporated in United Arab Emirates and is engaged in providing management services includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 90 of the Act and the judicial decisions on taxability of such income in India referred at para.6 of the order and also perused the service agreement between ABB Industries and UAE in respect of services to be rendered. Finally, the ld.AO is of the firm opinion that the services rendered by the assessee-company are in the nature of the managerial, technical, consultancy services and the amounts received by the assessee-company for such services shall attract provisions of section 9(1)(vii) of the Act read with Explanation 2. Accordingly, such payments are taxable in India and made addition to the Returned income and passed the Draft assessment order u/s 143(3) r.w.s 144C(5) of the Act, dated 26/02/2016. 3. Aggrieved by the draft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not taxable in India and allow the appeal. Contra, the learned DR objected to the submissions of the learned AR and supported the orders of the lower authorities. 5. We heard rival submissions and perused material on record. The sole crux of the disputed issue is with reference to the consideration received from M/s.ABB India by the assessee as per the service agreement. The learned AR vehemently argued that the AO has erred in treating it as FTS whereas the same is in the nature of managerial and technical services from M/s.ABB India Ltd., As the assessee-company is a non-resident company incorporated in UAE and as per India-UAE Tax Treaty, the assessee has claimed such payments as not taxable because of DTAA between India and UAE do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of business profit. We found the coordinate bench of this Tribunal in the case of M/s.ABB FZ-LLC vs. ITO in IT(IT)A No.188/Bang/2016 dated 28/10/2016 has very specifically observed in page 29 of the order which reads as under: It is clear that the Tribunal has given the finding after considering the decision of the co-ordinate bench as well as decision of Hon'ble Madras High Court in the case of Bangkok Glass Industry Co. Ltd. Vs. ACIT (supra). In view of the above discussion and by following the decision of the co-ordinate bench in the case of IBM India Pvt. Ltd. Vs. DDIT (I.T) (supra), we are of the considered opinion that in the absence of the provision in the DTAA to tax Fees for Technical Services the same would be taxed as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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