9911796707
TMI Blog2025 (2) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... isper in the impugned order about (a) as to whether impugned expense/payment i.e. License Fee shared by the assessee is taxable in India in the hands of non-resident AE in view of provisions of article 12 of double taxation avoidance agreement entered between India and USA r.w. u/s 9 of the Act? and (b) as to whether impugned expense/payment i.e. License Fee shared by the assessee to its non-resident AE can be subjected to the provisions of section 195 of the Act. In view of this uncontroverted facts, the impugned adjudication in our considered view is prejudiced by assessee's submission that in the subsequent year of payment of license fees to AE due taxes were deducted u/s 195 of the Act and deposited with the ex-chequer. The ground numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tersely stated facts of the case are that; 2.1 The assessee company is a part of the Enterprise DB Group and is a subsidiary of Enterprise DB International Holdings Inc. [in short 'EDB Crop./AE'] which was engaged in providing product development support services, general and administration support services and sales support services to its group entity. The assessee acts as a reseller of the software products of and also involved in providing training and consulting services to non-group and group customers. In January 2010 the assessee entered into an agreement with its AE-EDB Corp. to resell software subscriptions in India. The income/sales from the sale of aforesaid software is recognised in the books as 'Subscription' and 50% of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to subsection 1 of section 195 of the Income-tax Act, 1961? 2. Whether on the facts and the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the appeal of assessee without considering the judgement the Hon'ble Supreme Court of India in the case of Standard Triumph Motor Co. Ltd. v. Commissioner of Income-tax, [1993] 67 Taxman 160 (SC)/[1993] 201 ITR 391 (SC)? 2.5 On the other hands the assessee raised as many as eleven ground in its cross objection. Though the said grounds prima-facie are inconsonance with rule 8 of ITAT-Rules, 1963 however for the ready reference are reproduced herein as; A. On the facts and in the circumstances of the case, the learned CIT(A) erred in not adjudicating on the Ground Nos. 4, 5, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in objecting to the order of the learned CIT(A) without considering the fact that the learned CIT(A) has rightly deleted the additions made by the learned DCIT based on the use of the words 'payment of any kind received as consideration' as per Article 12 of the India-USA Tax Treaty. 6. The learned DCIT erred in objecting to the order of the learned CHA) without appreciating the fact that the learned CIT(A) has rightfully not referred to Explanation 1 to subsection 1 of section 195 of the Act since the same is not beneficial as compared to the provisions of the India-USA Tax Treaty. 7. The learned DCIT erred in objecting to the order of the learned CIT(A) since the learned CIT(A) has rightfully relied on the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject matter of adjudication. Adverting to para 2 (placed at Pg2/25) of the impugned order the Ld. AR submitted that, the assessee raised as many as ten grounds, however the appellate proceedings came culminated adjudicating only ground number 2 in favour of assessee by deleting the disallowance holding that, 'As per the provisions of the Tax Treaty, Royalty income shall be taxed in the hands of the non-resident taxpayer in India on actual receipt of the same from the resident taxpayer. The appellant has also submitted that it has already withheld tax at source on the License Fees payments during FY 2019-20 and deposited the same with the Central Government.' 4. The Ld. AR further contended that, the legal grounds viz; (a) as to whether imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue either by confirming or annulling the addition or reducing or enhancing the addition made by the assessing officer without the right to remand the matter back. However, while exercising the jurisdiction u/s 251(1)(a) of the Act, the Ld. CIT(A) is required to state point of determination, its decision thereon and clear reasons therefore in terms of section 250(6) of the Act. 8. In the instant case, we find no whisper in the impugned order about (a) as to whether impugned expense/payment i.e. License Fee shared by the assessee is taxable in India in the hands of non-resident AE in view of provisions of article 12 of double taxation avoidance agreement entered between India and USA r.w. u/s 9 of the Act? and (b) as to whether impugned expe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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