9911796707
Advanced Search 
TMI Blog2023 (8) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013-14 to 2017-18. 2. Common issues are raised in these appeals; hence, they were heard together and are being disposed off by this consolidated order. 3. Brief facts of the case are as follows: Assessee is a telecommunication operator, headquartered in Belgium and a tax resident of Belgium. In order to facilitate a connecting facility to route its international outbound voice traffic in virtual transit to various foreign destinations, the assessee had entered into a Carrier Service Agreement (hereinafter referred to as 'CSA') with Vodafone Idea Ltd., (hereinafter referred to as 'Vodafone'). During the Assessment Years 2013-14 to 2017-18, assessee provided from outside India the services specified in CSA (hereinafter referred to as 'Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel Shri. V. Sridharan submitted that all the issues raised in these appeals are squarely covered in favour of the assessee by the judgment of the Hon'ble jurisdictional High Court in the case of Vodafone India Ltd., in ITA No.160/2015 and Ors (vide judgment dated 14.07.2023). 6. The learned DR strongly supported the orders of the AO and the DRP. 7. We have heard the rival submissions and perused the material on record. The subject matter of appeals relates taxability of sum received by the assessee from Vodafone. In the hands of the Vodafone, proceedings were initiated under section 201 of the Act for non-deduction of tax on the sum paid to the assessee. Tribunal in the case of Vodafone South Ltd., reported in 44 ITR (T) 330 held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment with the Omantel for utilisation of bandwidth. Omantel transferred certain portion of its capacity to Belgacom and Belgacom had in turn transferred a portion of its capacity to the assessee. 15. Admittedly the equipments and the submarine cables are situated overseas. To provide ILD calls, assessee had availed certain services from NTOs. It is also not in dispute that Belgacom, a Belgium entity with whom assessee has entered into an agreement does not have any 'permanent establishment' in India. 16. Shri. Pardiwala contended that the payments made by assessee cannot be treated as either Royalty or FTS34 or business profits as no part of the activity was carried out in India. Revenue's reply to his contention is that, the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanations will result in amendment of DTAA. The answer to this question must be in the negative because in Engineering Analysis, the Apex Court has held that Explanation 4 to Section 9(1)(vi) of the Act is not clarificatory of the position as on 01.06.1976 and in fact expands that position to include what is stated therein vide Finance Act, 2012. 20. The Explanation 5 and 6 to Section 9(1)(vi) of the Act has been inserted with effect from 01.06.1976. This aspect has also been considered in Engineering Analysis holding that the question has been answered by two Latin Maxims, lex no cogit ad impossibilia i.e. the law does not demand the impossible, and impotentia excusat legem i.e. when there is disability that makes it impossible to obe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether the Income Tax Authorities have jurisdiction to bring to tax income arising from extra-territorial source. Admittedly, the NTOs have no presence in India. Assessee's contract is with Belgacom, a Belgium entity which had made certain arrangement with Omantel for utilisation of bandwidth. In substance, Belgacom has permitted utilisation of a portion of the bandwidth which it has acquired from Omantel. It is also not in dispute that the facilities are situated outside India and the agreement is with a Belgium entity which does not have any presence in India. Therefore, the Tax authorities in India shall have no jurisdiction to bring to tax the income arising from extra-territorial source. 8. In view of the above judgment of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
