9911796707
TMI Blog2023 (1) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... racted order deciding the issue against the department. It is made clear that the Revenue s pleadings nowhere pinpoint any distinction on facts or law; as the case may be, in all these three assessment years. Faced with the situation, we adopt judicial consistency to affirm both the CIT(A) s orders herein under challenge. This Revenue s identical sole substantive ground fails therefore. - ITA Nos. 838 & 839/PUN/2022 - - - Dated:- 19-1-2023 - SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER For the Assessee : Shri Siddhesh Chaugule For the Revenue : Shri Dipak Garg, CIT-DR ORDER PER S.S. GODARA, JM : These Revenue s twin appeals for A.Ys. 2018-19 and 2019-20 arise against the CIT(A), P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the CIT(A) s action in issue reversing the assessment findings holding the assessee s receipts in issue as taxable in India despite the fact that it had rendered the corresponding services in USA only. It further transpires that the instant sole issue raised at the Revenue s behest is no more res integra as the tribunal s recent order in the preceding assessment year 2017-18 involving the departmental appeal ITA No.258/PUN/2021 decided on 28.11.2022 has upheld the CIT(A) identical findings as follows: 2. The Revenue raises the following substantive grounds in the instant appeal:- 1. On the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in treating the amount of Rs.68,72,39,090/- as non taxable in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting agreement: Cloud Infrastructure-Managed private cloud, Colocation and network services, Mainframe services, Disaster/Data recovery services. Perusal of the appellants submission brings out the following: Income accrues or arises to a person at a place where the services are rendered. The place of accrual of income has judicially been interpreted to mean the place where the income generating activity takes place, irrespective of the sites of the payer. The Appellant renders services to Infosys, at or from its facilities located in USA; Necessary infrastructure/ equipment/ hardware/ software used for provision of the services by the Appellant under the subcontracting agreement are installed at facilities owned by App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a technical plan or design. The contract is one for pure provision of services, with no technology or know-how being transferred to Infosys. This is evident from the Work order related to Cloud services (refer page no. 250-258 of factual paper book) and Work order related to Colocation services (refer page no. 264). Considering the nature of services provided such as collocation service mainframe services, data recovery services etc. in which infrastructure and backup / recovery services are provided, it is only a facility which is being given by the Appellant to Infosys / McDonald and not a transfer of technology/ service which can be used by Infosys independently in future on its ow without recourse to the Company. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es give rise to application of Sec.9 s applicability (supra), the assessee is found very well entitled for the benefit of India USA double taxation avoidance agreement DTAA u/s 90(2) of the act wherein Article 12 (4) (b) stipulates taxability of the income arising therefrom only if the services concerned make available technical knowledge to the recipient/payer. Mr. Chavan could not refer to any material in the case file satisfying the forgoing make available condition in assessee s services. This tribunals recent coordinate bench decision in M/s. Faurecia Automotive Holding V/s. DCIT ITA No. 784/PN/ 2015 dated 08.07.2019 holds in light of CIT V/s. De Beers India Minerals Pvt. Ltd. (2012) 346 ITR 467 (Kar.) that such make available ..... X X X X Extracts X X X X X X X X Extracts X X X X
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