TaxTMI 
TaxTMI 
2019 (7) TMI 1309
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.... to the assessment year 2013-14. 2. On the instructions of the assessee the learned Authorised Representative did not press grounds no.2, 3 and 4. Hence, these grounds are dismissed as not pressed. 3. In ground no.1, the assessee has challenged the decision of the Departmental Authorities in treating the management fee received by the assessee as fees for technical services. 4. Brief facts are, the assessee company is a tax resident of Singapore and is engaged in providing management advisory services. In the course of such business activity, the assessee entered into an agreement with its Indian subsidiary viz. Dimension Data India Ltd. (DDIL) to provide advisory services in the field of management, sales, marketing, finance and adminis....
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....w or process, which could enable the recipient of such services to apply the technology content therein independent of the service provider. It was submitted, since the assessee has not made available any technical knowledge, experience, skill, knowhow, etc., to the Indian entity, the management fee received by it cannot be treated as fees for technical services. The Assessing Officer, however, did not find merit in the submissions of the assessee and concluded that the management fee received by the assessee from the Indian entity is in the nature of fees for technical services as per the India-Singapore Tax Treaty, hence, taxable in India @ 10%. Accordingly, he proposed a draft assessment by bringing to tax the management fee received by....
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....g upon its own order for the assessment year 2011-12, however, the final assessment order passed in pursuance to the directions of learned DRP in assessment year 2011-12, was restored back to the Assessing Officer by the Tribunal while deciding assessee's appeal in ITA no.684/Mum./2016, dated 5th May 2017. He submitted, while completing the assessment in pursuance to the directions of the Tribunal for the assessment year 2011-12, the Assessing Officer has accepted assessee's claim that the management fee received from DDIL is not in the nature of fees for technical services and has assessed it as business profit. In this context, he drew our attention to the assessment order dated 28th December 2018. Further, he submitted, while deciding as....
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....e in the present appeal is confined to the nature of management fee earned by the assessee from its Indian subsidiary DDIL. While it is the claim of the assessee that the management fee received is in the nature of business profit and in the absence of any PE in India it is not taxable, the Department's case is, management fee received is in the nature of fees for technical services under Article-12(4) of the India-Singapore Tax Treaty, hence, taxable in India @ 10% of the amount received. Notably, while deciding assessee's appeal for the assessment years 2012-13 and 2013-14 (supra), the Tribunal has held that the management fee received by the assessee from DDIL is not in the nature of fees for technical services. Further, the Tribunal has....
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....ay of the employees in India has exceeded 30 days. That being the case, no PE existed in India to bring to tax the business profit earned by the assessee. In our view, the aforesaid claim of the assessee has neither been considered by the Assessing Officer nor by learned DRP, as; they have treated the management fee received by the assessee as fees for technical services. In view of the aforesaid, we direct the Assessing Officer to examine assessee's claim that there is no PE in India in terms of Article-5(6)(b) of the India-Singapore Tax Treaty. In case assessee's claim is found to be correct, no part of the management fee would be taxable in India. Therefore, subject to the aforesaid verification, the grounds raised are allowed. 11. In ....