9911796707
TMI Blog2025 (1) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO nor the ld. CIT(A). The No PE certificate submitted by the assessee now was also not available with lower authorities. It is contended that except agreement, nothing else was asked for by the ld. AO. Now it has been submitted before us, legible agreement, no PE certificate of Tevlon LLC USA, therefore, we restore the whole issue back to the file of ld. AO with a direction to the assessee to show that the income of Tevlon LLC USA is business income as per Article 5 & 7 of the DTAA as business income applies to it. Alternatively, the Assessee may also prove that provisions of Article 12(4) of that including 'make Available test' applies to the facts of the case - Appeal filed by the assessee is allowed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 195 of the Act are not applicable and has no relevance. 5. That the learned CIT(A) erred in law and facts by failing to appreciate the applicability of provisions of DTAA and thereby ignored the binding tax treaty. 6. That the learned CIT(A) erred in law and on facts in holding that the services rendered by M/s Tavelon satisfies the definition of "Fees for Included Services" even though the said services does not amount to make available knowledge to the appellant. 7. That the learned CIT(A) erred in law and facts by not taking into account the non-applicability of make available in the instant case and restricted the transaction to applicability of provisions as per Income Tax Act. 8. That the learned CIT(A) erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reason of compliance with TDS provisions and also foreign outward remittances. It was found that assessee has remitted Rs. 5,40,96,815 to Tavelon LLC USA without tax deduction at source. The claim of assessee is that same is not chargeable to tax in the hands of recipient in India and therefore the provisions of section 195 does not apply. A show cause notice was issued on 29.11.2021 asking the assessee to justify why tax is not deducted at source on the above payment and why above amount so remitted is not to be disallowed u/s. 40(a)(i) of the Act. 4. The assessee submitted that payment made to Tavelon LLC is for services rendered for business development, project management, marketing and related services in procuring projects an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of any Article dealing with fees for technical services under the DTAA, income of the non-resident is exigible to tax under the provisions of domestic law. Accordingly the appeal of the assessee was dismissed. 6. Assessee, aggrieved with the appellate order, has preferred this appeal. The claim of assessee is that assessee has entered into agreement with Tavelon LLC for receiving the services of business development, project management, marketing & related services in procuring the projects and introducing the clients. The assessee further referred that project management includes carrying out the project efforts between the assessee and client of the assessee i.e., Oracle teams. He referred to the scope of services rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders of the ld. lower authorities. The issue involved in this case is that assessee an individual, carrying on business of software development and testing services. It is receiving services from M/s. Tavelon LLC USA of project management, business development, marketing and other related services. The services are stated to be in the nature of co-ordinating the efforts between the assessee and the clients of the assessee outside India. This is based on Agreement dated 28.11.2016. The service provider was to raise the bills on the basis of rate per hour in US $ on various persons. The invoices raised by assessee are on rate basis only. During the year it paid to Tavelon LLC USA a sum of Rs. 54096815/-, on which it did not deduct any tax so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 the case of the assessee was selected for scrutiny also for remittances made by assessee to Tavelon LLC and no addition was made. Therefore, it is apparent that similar issue has been accepted in the case of assessee by the ld. AO in the assessment order passed u/s. 143(3) of the Act for AY 2017-18 wherein in para 6 similar facts are noted. 10. However, we find that the services emanating from the Agreement dated 28.11.2016 was not placed in legible from before the ld. AO, therefore, the ld. AO could not look at correct nature of services. The issue that identical matter has been examined in AY 2017-18 were emanating from the same Agreement or not was also not known to the AO nor the ld. CIT(A). The No PE certificate submitted by the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
