TaxTMI 
TaxTMI 
2013 (1) TMI 622
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....referred to as the 'Appellant') craves to prefer an appeal against the order passed by the learned Assessing Officer (hereinafter referred to as the 'AO') under Section 143(3) of the Income-tax Act, 1961 ('Act') read with Section 144C(13) of the Act, on the following grounds: 1. The learned AO/ Hon'ble Dispute Resolution Panel ('DRP') has erred in concluding that borrowed service rendered by the Appellant are in the nature of 'royalty' under Article 12 of the India-Indonesia Double Taxation Avoidance Agreement ('India-Indonesia Tax Treaty'). 2. Without prejudice to the above, the learned AO/ Hon'ble DRP has, in the absence of specific clause for fees for technical services under the India-Indonesia Tax Treaty....
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....e assessee had also not filed the details with respect to the nature of information or details that were provided by it to Mc Kinsey India or copies of correspondences between the two entities with respect to providing of these services, that the payments received by the assessee were in the nature of consideration received for rendering of technical and consultancy services so as to make available technical knowledge, skill, know how, experience or process and thus was in the nature of fees for included services as covered by Article 12 of the DTAA between India and Indonesia'. Referring to Article 12 of the Double Taxation Avoidance Agreement (DTAA), he held that expression 'made available' would mean that the person providing the service....
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.... and did not satisfy the tests of Royalty and hence could not be classified as such, that in the earlier year-services rendered by assessee were treated as FTS, that assessee had provided only services, that services rendered by the assessee were commercial services and not technical services, that assessee had no permanent establishment in India, , that sums received for giving advice could not be treated Royalty, that DRP had directed the AO to treat the receipt-in-question under the head 'Other Income' as per the provisions of Article 22 of the Treaty, that business-income could not be taxed under the head 'Other Income' i.e., under Article 22, that addition was made/confirmed by the AO/FAA on the basis of a non-existent clause, that MOU....
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....y & Company, Inc ('McKinsey India') were set up to provide similar services in India; iii. During Assessment Year 2007-08, McKinsey India received various information from the assessee; iv. The Assessee provided information requested and charged McKinsey India for collating the information; v. Services were rendered outside India; vi. Assessee claimed that the amount received from McKinsey India was to be taxed as business receipt; vii. AO taxed the same as fees for included services as per Article 12 of the INDO-INDONESIA DTAA; viii. DRP opined that receipt-in-question was to be taxed as per the provisions of Article 22 of the Agreement. 8. After considering the facts of the case and cases....