9911796707
TMI Blog2021 (12) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... that the amounts taxable as royalty/fees for technical services under the Act read with section 90/90A of the relevant double taxation avoidance agreement [DTAA] will not be exigible for being considered for the charge of Equalisation Levy. Petitioner in its application for certificate under section 197 dated 23.09.2021 describes itself as an e-platform operator. In the later part of the same application the petitioner claims itself to be a university for the purposes of article 12(5)(c) of the DTAA between India and United States of America. The AO, in the Impugned Order holds the Petitioner is not eligible for the benefit of article 12(5) (c) of the DTAA. However, the Impugned Order does not contain any reasoning or discussion on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021-22. 2. Learned counsel for the Petitioner states that the impugned order dated 27.09.2021 rejecting Petitioner s application for NIL deduction directing the customers of the Petitioner to withhold tax @ 10% is arbitrary and no reason has been given in the order for arriving at such a conclusion. She states that the Petitioner acts merely as an aggregator of educational institutions making access to various courses easier and that upon successful completion of the course, a certificate to this effect which bears the seal of the institution concerned is awarded to the student. 3. She further states that the Petitioner being a tax resident of USA, has no PE in India and so business profits arising to the Petitioner in India are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia under this Act read with the agreement notified by the Central Government under section 90 or section 90A . 5. Mr.Agarwal submits that after amendment of section 10(50) of the Act by Finance Act 2021 w.e.f.01-04-2021, the concept of apportionment of receipts has been introduced. Therefore, out of the total amount of receipts of the petitioner, the amount characterised as royalty or fees for technical services will be chargeable to tax under the Act read with provisions of applicable DTAA as royalty and/or fee for technical services for the purposes of TDS under section 195 of the Act. Balance amount, if any, will be chargeable to Equalisation Levy. 6. After hearing the counsels for parties, this court finds the Impugned Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Impugned Order holds the Petitioner is not eligible for the benefit of article 12(5) (c) of the DTAA. However, the Impugned Order does not contain any reasoning or discussion on the applicability or otherwise of various sub-articles of the DTAA to the fact situation of the case. 10. Consequently, the impugned order dated 27.09.2021 is hereby set aside with a direction to the Respondent No. 1 to pass a de novo reasoned order after taking into account the amendments made to the provisions of section 10(50) of the Act w.e.f. 01.04.2021 i.e. to exclude the receipts of the Petitioner which is subject to withholding tax at source to the extent such receipts are exigible to Equalisation Levy within a period of 4 weeks after granting opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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