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TMI Blog2023 (6) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... red under Article 9(1) of the India France Tax Treaty, hence, not taxable in India. This issue is also confirmed by HC [ 2012 (8) TMI 1211 - BOMBAY HIGH COURT] . Agency PE - CMA CGA Agencies (India) Pvt. Ltd. Whether Agency Permanent Establishment (PE) of the assessee in India? - HELD THAT:- This issue is recurring and has been repeatedly subject matter of appeal since assessment year 2012-13 [ 2020 (1) TMI 1641 - ITAT PUNE] - The Tribunal has been consistently holding that the assessee has no Agency PE in India. No material has been placed on record by the Revenue to force us to take a different view. Non-taxability of income in the nature of IT support services (FTS) - HELD THAT:- In the instant case, the DRP rejected the claim of assessee merely following its own order in assessment year 2017-18 [ 2022 (11) TMI 379 - ITAT MUMBAI] . Now, that the assessment order for assessment year 2017-18 has been reversed by the Co-ordinate Bench and has restored the issue back to the file of Assessing Officer for adjudication, we deem it appropriate to decide this issue in similar terms as the issue has neither been examined by the Assessing Officer or the DRP. Thus, ground of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of Hon'ble Jurisdictional High Court in the case of Safmarine Container Lines NV in ITA No.952 of 2011 147 of 2009 decided on 17/01/2013. In the said case the relevant treaty for Double Taxation Avoidance Agreement (DTAA) was between India and Belgium, whereas in the present case, the relevant treaty for that of France. The treaty clauses of Belgium and France are not at par. Hence, the decision in the case of Safmarine Container Lines NV(supra) is distinguishable. 5. We have heard the submissions made by rival sides and have examined the orders of authorities below. The Revenue has not disputed that the facts and grounds raised in the present appeal are in any manner different from the grounds and the facts in the preceding Assessment Year. We find that the primary grounds raised by the assessee in ground No.2 to 19 are perennial. Majority of the issues have been subject matter of repeated appeals before the Tribunal since Assessment Year 2012-13.The grounds/issues raised by assessee in appeal are decided as under: INLAND HAULAGE CHARGES(IHC): 6. During the relevant period, the assessee collected IHC Rs. 384,82,82,478/- and claimed to be not taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the case of Safmarine Container Lines N.V (supra) has been rendered by Hon ble Bombay High Court in the context of India-Belgium DTAA. However, in the case of DIT Vs. A.P.Moller Maersk A/S (ITA No.1306 of 2013 dated 29- 04-2015), to which India-Denmark treaty would apply, the Hon ble Bombay High Court has held that the principles involved in the decision of Safmarine Container Lines N.V (Supra) also govern the case of A.P. Moller Maersk A/S (supra). There is no dispute that the Article 9 of India-France DTAA is identically worded to the corresponding Article in India-Denmark DTAA. 17. We shall now discuss in brief the facts available in M/s A.P. Moller Maersk A/S case. The said company was resident of Denmark and hence India-Denmark DTAA applied to it. In order to help its agents in booking cargo and carrying out clearing agent works, the assessee maintained a global telecommunication facility called MaerskNet, which is a vertically integrated Communication system . The assessee recovered pro-rata costs from its agents and accordingly the Indian agents also remitted pro-rata costs to the above said assessee. Before AO, the assessee contended that it was merely a system ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he OECD model convention discussed supra. 21. In view of the foregoing discussions, we agree with the contentions of the Ld A.R on this issue. Accordingly we hold that Inland Haulage Charges received by the assessee shall form part of income from operation of ships in international traffic and accordingly Article 9 of India-France DTAA shall apply to it. Accordingly we uphold the order passed by Ld DRP in Ay 2012-13 on this issue and reverse the orders passed by it on this issue in AY 2013-14 and 2014-15. 8. Respectfully following the decision of the Co ordinate Bench rendered in assessee s own case in the preceding assessment years, we hold that IHC, since, forms part of income from operation of ships in International Traffic, is covered under Article 9 of the India France Tax Treaty, accordingly, not taxable in India. These grounds are decided allowed. No contrary material has been brought on record distinguishing facts or the aforesaid decision. Respectfully following the decision of Co-ordinate Bench in assessee's own case, grounds of appeal No.2 to 4 are allowed for parity of reasons . The ld. Departmental Representative has raised objection that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by Department in Income Tax Appeal No.2175 of 2009 decided on06/08/2012 has decided this issue in favour of assessee and has dismissed the appeal of Revenue. We find that in assessment year 2015-16 the Co-ordinate Bench following the order of Tribunal in assessee's own case for assessment years 2012-13 to 2014-15 dated 14/03/2018(supra) and the decision of Hon'ble Bombay High Court in assessee's own case held as under: 17. Facts being identical, respectfully following the aforesaid decision of the Co ordinate Bench rendered in assessee s own case, we hold that freight charges received from transportation of cargo through feeder vessels being part of shipping income in International Traffic is covered under Article 9(1) of the India France Tax Treaty, hence, not taxable in India. In fact, the aforesaid view of the Tribunal was upheld by the Hon ble Jurisdictional High Court while dismissing Revenue s appeal in assessee s own case in Assessment Year 2002 03 in Income Tax Appeal no. 2175 of 2009, vide judgment dated 6th August,2012. Accordingly, these grounds are allowed. [Emphasized by us] No contrary material has been brought to our notice to take a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23;s case vide order dated 02/01/2020 in ITA No. 2314/PUN/2017 held that fee for technical services paid by Indian agency company is not chargeable to tax in India as per the beneficial provisions of DTAA and hence the Indian agency company is not liable to withhold any tax on the same in India. As the income has been offered to tax inadvertently by the assessee, therefore, the assessee has filed aforesaid additional grounds and additional evidences. We find that similar additional grounds and additional evidences were also filed by the assessee before the coordinate bench of the Tribunal in its appeal for assessment year 2016 17. The coordinate bench in CMA CGM SA vs ACIT (supra), for assessment year 2016- 17 admitted the additional grounds of appeal as well as additional evidences filed to support the additional grounds and restore the same to the file of AO for de novo examination, by observing as under: 17. We have examined additional grounds of appeal raised by the assessee and additional documents supporting the claim made in additional grounds of appeal. The assessee in its return of income has offered to tax FTS @ 10%+ surcharge and educational cess. In the additional ..... X X X X Extracts X X X X X X X X Extracts X X X X
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