9911796707
TMI Blog2025 (1) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment proceedings Ground No.2 Provision of distance learning courses Ground No.2 Ground No.3 Ground No.2 Sale of physical publications Ground No.3 Ground No.4 Ground No.6 Provision of advertising space Ground No.4 Ground No.5 Ground No.3 Data base access facility Ground No.5 Ground No.6 Ground No.5 Survey charges Ground No.6 Ground No.4 Joining & annual fees collected towards IATA clearing house facility and data processing charges Ground No.7 Ground No.7 Ground No.7 Non-grant of credit for self assessment tax Ground No.8 Short grant of TDS credit Ground No.9 Interest under section 234A Ground No.8 Ground No.8 Ground No.10 Initiation of penalty Ground No.9 Ground No.9 Ground No.11 2. The assessee is a corporation incorporated under the Special Act of Parliament of Canada and is a tax resident of Canada. The assessee holds a valid tax residency certificate. It is stated that it is a non-profit organization carrying out its activity for the benefit of all stakeholders of the World's Commercial Aviation Industry. Assessee has a branch office in India approved by the Reserve Bank of India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egister/ enrol directly with the assessee or with an authorized Training Centre ('ATC'). For the provision of the distance learning courses, Assessee receives enrolment fees from students/ATCs. Such fees have been paid for course material/ training kit fees, shipping fees, exam fees which is conducted by a third party in India, fees for issuance of certificates on successful completion of the courses. The AO / DRP held that the ATCs are agents of the assessee and therefore the amount received by the assessee towards distance learning courses are taxable in India as per the provisions of Article 5(4) and 5(5) of India - Canada DTAA. 4. The ld AR submitted that the Authorised Training Centres (ATC) have been wrongly considered as agents of the assessee without appreciating the fact that the activities of the ATCs i.e. registration and training of students was carried out by them in their ordinary course of business in an independent capacity. It was further submitted by the ld. A.R that the relationship between the assessee viz. IATA, Canada and the ATCs was on principal to principal basis and there was no element of agency between them. The ld AR further submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so generated. For a fair appreciation of the issue under consideration we shall briefly cull out the fact pattern as regards the provision of the distance education courses of the assessee by the ATC"s in India. As is discernible from the records, we find that the assessee viz. IATA, Canada allowed students to avail various distance learning courses pertaining to aviation sector, viz. IATA Proprietary Training Programs, International Aviation Training Program, International Cargo Agent Training Program, International Travel and Tourism Training Program etc., for which the interested students could either directly register/enrol on the website of the assessee or approach an ATC. The assessee during the year under consideration had 59 ATC"s in India. On a perusal of the records, we find that the ATC"s for carrying out training and being able to provide the assessee's courses in their syllabus had to register themselves with the assessee and pay one-time ATC fees viz. ATC network access fee, ATC annual authorization fee, and branch fee. Insofar such ATC fees is concerned, the same had undisputedly been offered to tax by the assessee as "royalty". For the provision of the distance lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Kuoni Certified Advanced Course in Travel & Tourism Management, Kuoni Certified Abacus Operator-Level-1, Kuoni Certified Program in Tour Guiding Skills, IATA Foundation, Kuoni Certified Program in Travel Agency Operations-IOTAA, IATA Consultant, Kuoni Certified Galileo Operator-Level-1, Kuoni Certified Galileo Specialist- Level 1 & 2, Kuoni Certified Abacus SpecialistLevel 1 & 2, Kuoni Certified Tour Manager Program, Kuoni Certified Air Ticketing Specialist, Kuoni Certified Program in Airport Customer Services, Kuoni Certified Program in Visa Facilitation etc. Also, our attention was drawn towards the financial statements of another ATC viz. Thomas Cook India Pvt. Ltd, as available in the public domain. On a perusal of the financial statements of Thomas Cook India Pvt. Ltd., we find that the primary source of revenue of the said party was by way of commission received from traveller"s cheque, margin on foreign exchange, and net commission earned on travel management. Insofar the revenue generation from conducting training programs is concerned, we find that the same was a miniscule amount of Rs. 0.39 crores as against the total revenue of Rs. 377.12 crores generated by the said e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved by the assessee, and for providing training to the students were mandatorily required to be registered with the assessee. Also, it was observed by the DRP that the training could be provided by the ATC"s to the students only after they had purchased the necessary study material from the assessee, i.e either directly by online payment or indirectly through sales by ATC"s. In the backdrop of its aforesaid observations, the DRP was of the view that the projection of the relationship of the assessee and the ATC"s as that of principal to principal basis was a farce. For so concluding, the DRP was of the view that though the students enrolled by the ATC"s were apparently the customers of the ATC"s on their own account and for their own benefit, but the moment the student enrolled for the training, the subscription of the assessee for the training material was secured and the charges were ensured. As such, the DRP was of the view that the payment of charges by the ATC"s (as an agent) to the assessee was disguised in the form of sale of materials. On a perusal of the observations of the DRP, we find, that except for its generalised observation that the distance learning courses of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "5. An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent, or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise and the transactions between the agent and the enterprise are not made under arm's length conditions, he shall not be considered an agent of independent status within the meaning of this paragraph." As such, an enterprise carrying on business in the other contracting state through a broker, general commission agent or any other agent of an independent status, or merely maintaining in that other State a stock of goods with an agent of an independent status from which deliveries are made by that agent, shall not be deemed to have a PE in the other Contracting state, subject to the condition that such agent of an independent status is acting in the ordinary course of its business. But then, if the activities of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the ATC"s were not made under arm's length conditions, would therein result to an absence of a cumulative satisfaction of the aforesaid two fold conditions prescribed in Article 5(5) of the tax treaty for divesting the ATC"s of their status as that of an independent agent. In sum and substance, as the assessee viz. IATA, Canada, was carrying on its business in India through ATC"s which were independent organizations doing their business of providing training to students to enable them to work in aviation, travel and tourism industry, therefore, the assessee de hors any such observation recorded by the lower authorities that the transactions between the assessee and the ATC"s were not made under arm's length conditions, cannot be held to have a PE in India within the meaning of Article 5(5) of the India-Canada tax treaty. Our aforesaid view that in the absence of any observation that the transactions between the assessee i.e IATA, Canada and the ATC"s were not made under arm's length conditions, the ATC"s which are independent organizations acting in the ordinary course of its business cannot be divested of their status as that of an independent agent under Article 5(5) of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, that enterprise shall be deemed to have a permanent establishment in the first-mentioned Contracting State" subject to fulfillment of certain other conditions which are admittedly fulfilled in the present case. Therefore, as long as the agent is of independent status, the provisions of Article 5(5) cannot be invoked. It is also important to bear in mind that since provisions of Article 5(5) override the provisions of Article 5(1) and 5(2), no permanent establishment under article 5(1) and (2) can be said to come into existence, so far agency situations are concerned, until the conditions of Article 5(5) are also satisfied. Learned Departmental Representative fairly does not dispute, and rightly so, that the permanent establishment in the present case will be governed by Article 5(5) read with Article 5(6). Learned Departmental Representative's only objection is that since an important aspect, i.e. aspect relating to the transactions having been done in arm's length conditions, has not been examined by the Assessing Officer, the matter should be restored to the file of the Assessing Officer for specific adjudication on the transactions between principal and agent having been done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fixed place PE do not apply to the DAPE situations. As regards the reference to the OECD Model Convention commentaries or other standard literature in the context of DAPE, it cannot be of any help in interpretation of DAPE provisions in Indo French DTAA because of a somewhat peculiar provision in Article 5(5) read with Article 5(6), which is not part of OECD or UN Model Convention, and which provides that "However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise, he will not be considered an agent of an independent status within the meaning of this paragraph if it is shown that the transactions between the agent and the enterprise were not made under at arm's length conditions.". We have also noted that the DRP has held that there is a PE on the short ground that assessee's claim for applicability of Article 9 presupposes existence of a PE, but it is difficult to comprehend as to how existence of a PE can be inferred merely because the assessee has made a particular claim, which is rejected anyway. The onus of establishing that there is a PE, as we have noted earlier in the discussions, is on the revenue authorities and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contracting State, that enterprise shall deemed to have been a permanent establishment in the first mentioned Contracting State. That is also provided he exercises habitually an authority to conclude contracts on behalf of the enterprise and his activities are not relevant to purchase of goods or merchandise for the enterprise. He may also be having no such authority, but if he maintains habitually in the first mentioned Contracting State a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the enterprise, then, the business of an enterprise is wholly or partly carried out within the meaning of Article 5(5) and the said enterprise has a permanent establishment in India. Insofar as Article 5(5) and para 6 is concerned, there is a deeming fiction, and by virtue of that, the enterprise of one of the Contracting States is deemed not to have permanent establishment in other Contracting State merely because it carries on business in that other Contracting State through broker, general commission agent or any other agent of an independent status, provided that such persons are acting in ordinary course of their business. Then comes the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions between the principal and agent were done in arm's length conditions. Under such circumstances, the Tribunal relying on the order of the "Special bench" of the Tribunal in the case of Motorola Inc. Vs. Dy. CIT(2005) 95 ITD 269 (Del)(SB), had held, that the onus was on the Revenue to demonstrate that a PE of the foreign enterprise exists in India. In its aforesaid order it was observed by the Tribunal, that in the case before them, the onus was even greater inasmuch the very foundation of DAPE did rest on a negative finding with respect to the wholly dependent or almost wholly dependent agent i.e. "if it is shown that the transactions between the agent and the enterprise were not made under arm's length conditions". As such, in the absence of any such negative finding being available on record, it was observed by the Tribunal that it could not be inferred that the agent was not of an independent status. Further, noticing that neither any such finding was given by the A.O or by the Dispute Resolution Panel, nor in the course of the proceedings before the Tribunal any material was brought on record which could at least prima facie demonstrate, or even indicate, that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee, therefore, the addition of Rs. 4,84,95,494/- i.e 40% of the revenue generated from sale of distance learning material, attributed to them in their status as that of DAPE of the assessee corporation, viz. IATA, Canada, and assessed as the business income of the assessee in India under Article 7 of the India-Canada tax treaty cannot be sustained and is therefore vacated. 14. We shall now deal with the claim of the assessee that the DRP had erred in concluding that the income received by the assessee on sale of distance learning courses is alternatively taxable as royalty, both under the Act and the India- Canada tax treaty. On a perusal of the DRP order, we find, that it was therein observed that as the assessee by providing training material to the students was providing knowledge, information and training about the aviation and travel and tourism industry in general, which was in nature of proprietary commercial knowledge, information and skill acquired from experience provided to the students on enrolment in ATC"s, the receipts were thus taxable as royalty both under the Act and the India-Canada tax treaty. We have deliberated at length on the issue under conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is towards a simplicitor sale of training material/books, thus, the same cannot be brought within the definition of "royalty" under Article 12(3) of the India-Canada tax treaty. Our aforesaid view that the consideration received for providing the study material to the students in distance learning courses cannot be held as "royalty" is fortified by the order of the ITAT, Delhi in the case of Hughes Escort Communication Ltd. Vs. Dy. CIT (2012) 31 CCH 128 (Del), wherein it was observed as under: "8.12. On a careful perusal of the above it is seen that the nature of payment made to eCornell is not 'royalty' as the payment is not for the use or the right to use any copy right or literary work. The fact that it is not for artistic, scientific work, work on film, tape, radio, television, broadcasting etc. does not arise. It is also not for use or right to use patent, trade mark, design, plan, secret formula or process etc. It is purely and simply a case of pooling of resources by way of an Affiliate Agreement wherein the respective roles and responsibilities have been assigned and the arrangement being of the nature of pooling of resources where fee sharing of the two parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s by air, provided comprehensively to assist customers in handling and transportation of dangerous goods. Thus, the DGR publications/ manuals are essentially a user-friendly reference publication/ manual in relation to shipping and transport of the dangerous goods around the world by air, based on the Instruction developed by the ICAO. The customers place the order for purchase of the DGR publications/ manuals on the website of IATA. These publications/ manuals are then dispatched directly to customers, and the ownership of such publications passes to the customers outside India. The AO/DRP held the revenue from sale of publications as Royalty in the hands of the assessee. 9. The ld AR submitted that the DGR manuals published by the assessee were a compilation of the Instructions on Dangerous Goods developed by ICAO, which in a comprehensive manner provided a user friendly compilation of instructions for safe transport of goods as laid down by ICAO. The ld AR further submitted that DGR manual does not involve any transfer of intellectual property and that manual does not contain any such un-divulged technical information that was not available in the public domain. The ld AR also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the "use" or the "right to use" the following: * plan, secret formula or process; or * Information concerning industrial, commercial or scientific experience; or * Any industrial, commercial, or scientific equipment. We find substance in the claim of the assessee that the consideration received on sale of DGR manuals could not be characterised as "royalty" within the meaning of Article 12(3) of the India-Canada tax treaty, for the following reasons: * The publications were outright sales to the customers, and no "use" or "right to use" any copyright in relation to the publication was granted to the customer; * The customers did not get vested with any right to reproduce/sell the content of the publication in any form or media; * The customers also did not get any right to use the patent, trademark, design or model, plan, secret formula or process of Assessee on supply of such physical publications; * The information provided in the publications was merely a user-friendly and comprehensive compilation of data available in the public domain and hence, the same cannot tantamount to imparting of any information concerning the technical, industrial, commercial or scie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a simplicitor sale of a copyrighted article with no vesting of any copyright of the same with the customer, the consideration therein received by the assessee cannot be attributed to the "use" or the "right to use" the copyright itself, and thus, on the said count also cannot be brought within the realm of the definition of "royalty" as provided in Article 12(3) of the India-Canada tax treaty. Our aforesaid view is fortified by the judgment of the Hon'ble High Court of Delhi in the case of DIT Vs. Infrasoft Ltd. (2014) 220 Taxman 273 (Del). In the backdrop of our aforesaid observations we vacate the view taken by the lower authorities that the consideration received by the assessee from sale of DGR manuals was to be treated as "royalty" and brought to tax in its hands. The Ground of appeal No. 3 is allowed in terms of our aforesaid observations." 11. It is also relevant to note that the decision of the Hon'ble Delhi High Court in the case of Infrasoft Ltd (supra) which is relied on by the coordinate bench in assessee's case is upheld by the Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence Pvt. Ltd.(supra). Accordingly respectfully follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te and publications/manuals the customers were using the logo, brand and goodwill of the assessee, the A.O/DRP concluded that the consideration therein received was liable to be taxed as "royalty" in its hands. 19. Assailing the aforesaid view so taken by the lower authorities, the assessee has carried the matter in appeal before us. We have heard at length the authorised representatives for both the parties in context of the issue under consideration, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them to drive home their respective contentions. In our considered view, the providing of advertising space by the assessee to its customers, either on its website or publications/manuals, did not result to vesting of any right to use, display, exploit or modification of the assessee's brand or logo, in any manner. As such, the consideration received by the assessee from provision of advertisement space in its publications /manuals or website would not fall within the realm of the definition of "royalty" as provided in Article 12(3) of the India-Canada tax treaty. In sum and substance, as no "use" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the case and keeping in view the decision of the Authority of Advance Rulings in the case of ISRO Satellite Centre (supra) and Dell International Services India (P) Ltd. (supra), we are of the view that the payment made by assessee to Yahoo Holdings (Hong Kong) Ltd. for the services rendered for uploading and display of the banner advertisement of the Department of Tourism of India on its portal was not in the nature of royalty but the same was in the nature of business profit and in the absence of any PE of Yahoo Holdings (Hong Kong) Ltd. in India, it was not chargeable to tax in India." As observed by us hereinabove, in the case of the present assessee before us also the consideration received by the assessee from the customers was for providing advertisement space in its publications/manuals or websites, without vesting of any right to use, display, exploit or modify the assessee's brand or logo in any manner. As such, we are of the considered view that the consideration received by the assessee for a simplicitor providing of advertisement space to the customers in its publications/manuals or website cannot be held as "royalty". Our aforesaid view is supported by the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. However the AO/DRP held that the information shared by the assessee are copyrighted information and therefore the amount received towards data base access facility should be treated as Royalty to be taxed in India. 16. The ld AR submitted that the assessee through data base access is facilitating the access to otherwise publicly available information in one place to the Airlines, customers etc. The ld AR further submitted that by providing the data access the assessee is not imparting any information concerning the technical, industrial, commercial or scientific experience or "use" or the "right to use" the copy right of literary, artistic or scientific work and therefore does not fall within the definition of Royalty as provided in Article 12(3). The ld AR also submitted that the data base as is similar to the sale DGR manual / publications and therefore the decision of the coordinate bench with regard to sale of publications is equally applicable to the data base access also. 17. The ld DR on the other hand relied on the orders of the lower authorities. 18. We heard the parties and perused the material on record. From the perusal of facts, we notice that the data base of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the said surveys, the passengers share their views/ opinions in relation to various services provided by Air India, inter-alia, including reservations and check-in procedures, in- flight services, baggage delivery etc. of Air India. The service of conducting the passenger satisfaction survey inter-alia includes preparing the sampling plan for the survey, distributing courtesy cards to passengers travelling by Air India's flights originating outside India which contains the website details required to participate in the survey and collating the responses provided by the passengers at a location outside India. All the said activities relating to conducting passenger satisfaction survey are provided jointly by Assessee and m1nd-set SA completely from outside India. The AO / DRP held that M1nd-set SA is to be treated as Agent PE of the assessee and since the source of income i.e. Survey of Air India customer is from the customer base in India, the Income is to be taxed as Business Profits under Article 7 of India Canada DTAA. 20. The ld AR submitted that M1nd-setSA is an independent 3rd party which is based out of Switzerland and that it does not have place of business in Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee, M1nd-setSA and Air India we notice that the service responsibilities of M1nd-setSA has no dependency on the assessee and has to be met independently by M1nd-setSA. Therefore there is merit in the submission of the ld AR that M1nd-setSA cannot be treated as an agent of the assessee. Further it is submitted that the conditions laid down under Article 5(4) and 5(5) of the DTAA between India and Canada to hold M1nd-setSA as DAPE of the assessee are not met as in the case of ATCs. For ease of reference the said clauses are reproduced as under 4. Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 5 applies - is acting in a Contracting State on behalf of an enterprise of the other Contracting State, that enterprise shall be deemed to have a permanent establishment in the first-mentioned State if : (a) he has and habitually exercises in the first-mentioned State an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to those mentioned in paragraph 3 which, if exercised through a fixed pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said ICH facility enables the airlines and SPs to settle their billings/ dues securely and efficiently, thereby, reducing their exposure to losses arising on account of foreign currency fluctuation. The Assessee receives joining and annual membership fees from various Strategic Partners who form strategic partnership with Assessee and membership fee is collected from airlines also. The assessee contended before the lower authorities that the income arising from ICH facility and annual membership are not taxable in India for the reason that - (i) the said services is not taxable in India since the services are provided by Assessee directly outside India and the fees in respect of the said services are also received by Assessee directly outside India. (ii) Taxing the receipts in India by virtue of holding Indian Branches as PE of the assessee is not tenable by applying the principle of mutuality. 24. The ld. AR argued that the joining annual fee toward ICH facility is not taxable on the principle of mutualy. The ld. AR further argued that the DRP in the case of IATA Indian Branches case for AY 2014-15 has given a categorical finding that the annual membership fees is not taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enables the airlines to settle this billing / dues securely and efficiently thereby redirecting their exposure to Forex fluctuations. The assessee contended that the services are directly rendered outside India and therefore the charges cannot be treated as business income in the hands of the assessee since the assessee does not have a PE in India. Similarly the assessee submitted that if the Indian Branches of the assessee are treated as PE, then surplus arising from membership fees collected for the benefit of members cannot be taxed by applying the principle of mutuality. The revenue did not accept the said contentions and held both the ICH facility charge and annual membership fees as taxable in India and estimated 40% of the gross receipts as income attributable to Indian Branch. In this regard, we notice that the DRP while considering the issue of taxability ICH facility fees and membership fees in the hands of assessee's Indian branch for AY 2014-15 and held that "7. Discussion and directions of the DRP regarding objection no.2: 7.1 We have considered the facts of the case and the submissions made by the assessee. The assessee has submitted that the surplus of Rs 69,21, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in excess of the expenses incurred by the assessee, such surplus contribution is either utilized against the cost to be incurred by the assessee in the subsequent years or is refunded back to the members. In support of the above contention, the assessee has submitted a detailed statement evidencing the surplus which has arisen to the assessee for various AYs, the utilization and refund of such surplus in the subsequent years. The relevant extract of the statement furnished by the assessee is reproduced below: FY Amount of surplus (INR) Reference Treatment by IATA India branch AO's conduct Reference in the financial statements 2010-11 15,42,172 Income and expenditure account Carried forward No assessment Note B.2 to Schedule 2011-12 79,61,405 Income and expenditure account Carried forward AO has taxed the surplus of Rs. 79,61,405 Note 16 2-12-13 Nil Income and expenditure account The entire amount of surplus (In Rs) pertaining to No assessment Note 16 FY 2010-11 FY 2011-12 FY 2012-13 15,42,172 79,61,405 4,53,85,486 Has been refunded to member airlines during FY 2012-13*. Hence, there is a nil balance for the FY. 2013-14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s you permission under Section 29(1)(a) of Foreign Exchange Regulation Act, 1973 for establishing a branch office at Bombay for the purpose of undertaking the following non-commercial activities on a no-profit basis: i. Representing the world's scheduled Airlines, travel agents, etc. ii. Providing services to member airlines including clearing services for remittances from travel agents to airlines and from cargo agents to airlines. ie: to launch Billing and Settlement Plan Program (BSPP); iii. Ancillary/incidental services of non-commercial nature; iv. To set up Electronic Data Processing Centre to collect, collate and process the reports. 4. You may please note that this permission has been granted subject to the following conditions: i. The branch office shall not, without the prior permission of Reserve Bank expand its activities or undertake any new trading, commercial or industrial activity other than what is approved hereby; ii. The branch shall not without the prior permission of Reserve Bank of India carry on by itself or in partnership or by otherwise associating with others any activity of a trading, commercial or industrial nature other than what is ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate Bench in Assessee's own case for AY 2012-13 has consider the above directions of DRP and held that the impugned amounts are not taxable in India (refer the observations of the Co-ordinate Bench in this regard are extracted in the earlier part of this order). We also notice that for the year under consideration the AO/DRP while holding that the principle of mutuality is not applicable with regard to ICH facility fees and annual membership fees have relied their own order for AY 2012-13. Therefore we see merit in the claim that the decision of the Co-ordinate Bench in the MA order for AY 2012-13 in assessee's own case is applicable for the year under consideration also. Accordingly, we hold that the AO/DRP are not correct in attributing 40% of the gross receipts towards ICH facility fees and membership fees as income taxable in India and attributable to Indian branch. 27. The facts pertaining to Data Processing Charges are that the assessee provides data processing services to airlines and agents using iiNET and Weblink respectively. The iiNET and Weblink facility enables the airlines and agents to enter travel related data into the system which is connected to the BSPLink syst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7072/Mum/2012 - AY - 2011-12 31. We have tabulated the issues contended by the assessee through various grounds for AY 2011-12, in the earlier part of this order. From the perusal of the same it is clear that all the issues contended through ground No.3 to 7 are identical to the issues in AY 2016-17. Therefore, in our considered view, our decision on the impugned issues rendered for AY 2016-17 are mutatis mutandis applicable to AY 2011-12 also. Accordingly Ground No. 3 to 7 are allowed. Ground No.2 on the validity of initiating reassessment proceeding has become academic in view of our decision on the grounds raised on merits. Ground No.1 is general and Ground No. 8 & 9 on levy of interest and penalty are consequential not warranting separate adjudication. 32. In result, the appeal of the assessee for AY 2011-12 is partly allowed. ITA No. 7416/Mum/2017 - AY - 2014-15 33. From the perusal of the issues contended by the assessee for Ay 2014-15 as tabulated in the earlier part of this order, it is clear that the issues are identical to those contended in AY 2016-17. Therefore, in our considered view Ground No. 2 to 7 are covered by our decision in 2016-17 as the decision is muta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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