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TMI Blog2025 (1) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in issuing the directions as per section 144C of the Act, on the following grounds. 1. On the facts and circumstances of the case and in law, the final assessment order passed by the Ld. AO is bad-in-law and liable to be quashed. 2. On the facts and circumstances of the case and in law, the final assessment order has been passed beyond the time limit prescribed under section 144C(13) of the Act and hence, is barred by limitation. 3. On the facts and circumstances of the case and in law, the Ld. AO has grossly erred in passing the final assessment order without considering the material available on record and is bad in law and void-ab-initio since it has been passed without giving sufficient opportunity to the appellant. 4. On the facts and in the circumstances of the case and in law, Ld. AO has erred in alleging that receipts from provision of other related services amounting to Rs 13,97,78,164 is taxable as Fees for Technical Services ('FTS') as per the Act and also as per the provisions of India-UK Double Taxation Avoidance Agreement ('DTAA'). 4.1. In doing so, the Ld. AO has not considered the order of the Hon'ble Income Tax Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 and 2 as above. However, the Assessing Officer did not accept the claim of the assessee to treat 'Fees for provisions for other related services' amounting to Rs. 13,97,78,164/- and held that these receipts constitute Fees for technical services (FTS) within the meaning and scope of Article 13(4)(c) of India-UK DTAA. 5. At the outset, the ld. AR submitted that this issue is squarely covered in favour of the assessee by the decision of the Co-ordinate Bench of the Tribunal in assessee's own case in ITA No.2006/Del/2022, vide order dated 24.01.2023 for AY 2019-20. The Ld. AR further submitted this fact is also accepted by the DRP in its order dated 06.03.2023, wherein, the DRP in para no.6.3 has dealt this issue stating that the DRP vide order dated 09.05.2022 for the AY 2019-20 held the amount relating to 'Fees for provisions for other related services' as taxable. Further, in para 6.4 of its order, the Ld. DRP held that since the legal and factual matrix in this case on this issue remains the same, the assessee's objections in this regard is rejected and DRP confirms to the stand taken by it to treat the receipt of amount of Rs. 13,97,78,164/- for the subject assessment year as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment associations... The sections of the PRIME manuals affected by these changes will also be updated by the Licensor and supply to the Licensee. 4. In consideration of the Licensing Fees paid under this Agreement, the Licensor will provide two sets of hard copies (as available) of the PRIME System Manuals to the Licensee. All of the documentation, including Project Design and Planning Reports, PRIME Manuals and specification documents for agreed enhancements, provided by the Licensor in respect of PRIME will be in the English language only. 5. Provide the project services in respect of PRIME as specified in Appendix XIV. Install PRIME and provide a training programme on the use of PRIME to the Licensee's nominated personnel in accordance with clause (A) 4.2 of Appendix XIV. 9. The Licensor shall use its best endeavours to provide Service Desk support to the Licensee under this Agreement using locally-based consultants, based on the technical expertise required for the service. Until the establishment of the Licensor's locally-based Service Desk, the Licensor shall provide such support to the Licensee from the Licensor's existing Service Desk in Dubai. " 3.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Software License Agreement with ICICI Bank, custom services shall provide a by the Licensor which include ICICI Bank-specific customisations, modifications and/or enhancement of products and/or such other mutually agreed services (Clause 2.2 (Grant of License)l. In addition to repair and maintenance services, the Licensor shall also provide adequate, general technical advice and consultation to ICICI Bank from the Licensor's site during the Licensor's business hours, with scope for additional, project specific remote or on-site consultancy services from the Licensor as mutually agreed (Clause 7.5) The support services are therefore neither standard nor routine, but are specific and exclusive to the assessee's products and customised to the specific needs of the user so as to enable their usage. Under similar circumstances and in the context of specialised maintenance and repairs vis-à-vis routine service contracts such as cleaning, it has been held by Hon'ble Delhi High Court has in DIT us. M/s Lufthansa Cargo India (ITA 95/2005) held as follows- "Unlike normal machinery repair, aircraft maintenance and repairs inherently are such as at no given p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of technical services. Once in this case it has not been disputed that there is not much of the human involvement for carrying out the tests of circuit breakers in the Laboratory and it is mostly done by machines and is a standard facility, it cannot be held that......(the assessee) is rendering any kind of technical services to assessee". These observations are not only based on erroneous analysis of the legal position but directly contrary to the law laid down by Hon'ble Supreme Court wherein it is held that even in a case of completely automated process like interconnect and port access facility, which is facility to use the gateway and the network of other cellular operator, the Assessing Officer is still required to examine "whether at any stage, any human intervention is involved". It is not a question of more of, or less of, human involvement. It is, in our humble understanding, the question of presence of or absence of human involvement..." (Emphasis supplied) 3.6.6. As seen above, even in a case of admittedly completely automated process like interconnect and port access facility, there is possibility of human involvement. In the present case, the complex solutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of providing information technology related services to financial payments industry. During the subject AY, the assessee had earned revenue from Indian Customer primarily for rendition of software license (referred to as 'PRIME) and provision of software related services including implementation services, enhancement services, annual maintenance services and consultancy services as per the request of the Customers. 5. During the year the assessee received an amount of Rs. 5,21,17,082/- on account of software (Prime) License fee and fee for provision for other related parties of Rs. 12,01,30,877/- and receipt in nature of reimbursement o f Rs. 7,24,821/- totaling to Rs. 17,29,72,780/-. xxxxxxxxxxxxxxxx 9. However, the ld DRP held that the second set o f receipts of Rs. 12,01,30,877 on account of provision of other related services, it is well settled that such services from a distinct set of receipts which need to be examined independently in terms of their taxability or otherwise under specific Article 13 (Royalty/FTS) and cannot be clubbed as business income under Article 7 of the DTAA. The ld DRP held that taxable under Article 13 India-UK DTAA under the head 'FTS'. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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