9911796707
TMI Blog2023 (6) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... he resident country i.e India. However, clause 4 of Article 12 provides that such payments would not be constitute as fees for technical services only if such payment is made to an individual for carrying out independent personal services referred to in Article 14. Since, assessee is a partnership firm and exception for payment referred in Article 14 would be applicable only for individual, therefore, the fees received by the assessee would not be covered under the such exception and accordingly would be subject to withholding tax in Japan. As perused the decision of coordinate bench of ITAT in the case of the assessee for AY. 2014-15 [ 2020 (12) TMI 776 - ITAT MUMBAI ] conclusions arrived at by the Japanese tax authorities, directing tax w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the honourable ITAT order passed for the Assessment year 2014-15 for petitioner in it's owned case for the identical matter which was submitted during the hearing before CIT(A). 3. The Petitioner firm reserves its rights to add, delete or amend any of the grounds of appeal." 2. Fact in brief is that return of income declaring total income of Rs. 786,60,513/- was filed on 30.10.2017. The case was subject to scrutiny assessment and notice u/s 143(2) of the Act was issued on 23.08.2018. During the course of assessment the assessing officer noticed that assessee has claimed relief u/s 90 of the Act in respect of income received for services rendered in Japan. The assessing officer was of the view that credit of withholding tax is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has dismissed the appeal of the assessee. 4. During the course of appellate proceedings before us the ld. Counsel at the outset submitted that identical issue on similar facts in the case of the assessee itself for the assessment year 2014-15 the coordinate bench of the ITAT Mumbai has decided in favour of the assessee. On the other hand, the ld. D.R. supported the order of lower authorities. 5. Heard both the sides and perused the material on record. During the course of assessment the AO has disallowed the claim of credit of foreign tax withholding made by the Japanese clients of the assessee. The assessee firm has provided legal services to certain clients based in Japan for which the clients paid legal fees after withholding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nical service particularly as the definition of the fees for technical services is on 'classical model' of much wider scope and not on the 'make available model' now in vogue in many tax treaties. The only reason for which exclusion from article 12 was canvassed by the Assessing Officer was that rather specific provisions of article 14 have to make way for rather general provisions of article 12, but then when we hold that, in the context of Indo Japan tax treaty, article 14 comes into play only for individuals, this proposition ceases to hold good in the present context. As a corollary to this legal position, and the exclusion clause under article 12(4) not being triggered on the facts of this case as such, it is indeed rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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