TaxTMI 
TaxTMI 
2014 (8) TMI 1187
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....e is in appeal before us assailing the aforesaid decision of the CIT(A). 3. Before the CIT(A), assessee filed ten appeals canvassing that payments made to the three non-resident parties, as detailed in para 1.8 of the impugned order, were not required to be subjected to tax deduction at source. Assessee had deducted and duly deposited the tax at source on such payments after grossing up the TDS amount, to the credit of the Central Government. Before the CIT(A), assessee filed ten appeals, for each of the ten payments made, in terms of section 248 of the Act. The CIT(A) has passed a consolidated order dated 03.10.2012 disposing of the ten appeals, which is the subject-matter of the captioned proceedings. Initially, Revenue filed a single appeal by way of ITA No.2509/PN/2012 before the Tribunal challenging the consolidated order of the CIT(A). Subsequently, the Revenue has rectified the situation and filed ten separate appeals vide ITA Nos.1047 to 1056/PN/2014, raising identical Grounds of Appeal in all the appeals. This has resulted in a delay in filing of appeals by the Revenue. The delay in filing of the ten appeals by the Revenue ....
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....stablishment under Article 5(2)(j) of the DTAA between India and Thailand and also did not consider the duration of services as per the agreements covering various stages starting from Preliminary Study, to Conceptual Design Stage, Conceptual Building Design for Government Submission stage, Schematic Design stage, Project Marketing Materials stage, Design Development stage, Construction Observation stage etc. which showed that the involvement of the these companies is extensive and involves meetings, visits by personnel of the vendor to the assessee's site and office in India over the various stages and duration may be more than 183 days in aggregate. 6. The Learned CIT(A) erred in not considering the taxability of income from consultancy services as business income as per Article 7 or as technical services as other income as per Article 22 of the DTAA between India and Thailand." 5. The respondent-assessee is involved in the development and construction of a resort name, Sparsh Holistic Health & Spa Resort, Pune. With a view to obtain professional services for designing and development of the resort, ....
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....uch remittances to the foreign concerns. It was also asserted before the CIT(A) that the payees have not claimed any tax credit in their country, i.e. Thailand, because assessee did not issue the requisite TDS certificate to the payees. Thus, assessee contended that the tax deposited by it to the credit of the Central Government be refunded because such tax was not payable on the impugned payments. The CIT(A) has accepted the aforesaid plea, against which Revenue is in appeal before us, as per the aforestated Grounds of Appeal. 7. The first and foremost objection of the Revenue is that the appeals filed by the assessee before the CIT(A) were belated, and the CIT(A) has wrongly condoned the delay. The learned CIT-DR appearing for the Revenue referred to the Tabulation contained in para 1.4 of the order of the CIT(A) wherein the delay in filing of the appeals has been enumerated. According to her, the delay ranged from 832 to 933 days which according to her is an extraordinary delay and the same has been condoned by the CIT(A) on insufficient grounds. 8. On this aspect, the learned counsel for the respondent-assessee vehemently subm....
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....A) in condoning the delay, but nothing has been brought on record to suggest that the reasons advanced by the assessee before the CIT(A) were lacking in bona-fides. Therefore, the conclusion of the CIT(A) to condone the delay cannot be faulted. 10. Apart from the aforesaid, CIT(A) has observed that section 248 of the Act seeks to provide relief to taxpayers from unjust enrichment, and thus a liberal yardstick is to be adopted for judging the 'sufficient cause' in such cases. Section 248 of the Act primarily deals with a situation where a person has deducted and paid tax to the Government, but thereafter denies his liability to deduct such tax. Thus, an appeal u/s 248 of the Act is preferred by a person only after he has actually paid the tax to the credit of the Central Government, whose liability he seeks to deny. In such a situation, where the bonafides of the assessee are not in challenge, the reasons advanced for the delay ought to be construed liberally. In conclusion, we hereby affirm the action of the CIT(A) condoning the delay in filing of the appeals before him. Thus, Revenue fails on this aspect. 11. Now, we may ad....
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.... avoidance of double taxation, then, in relation to the assessee to whom such agreement applies, the provisions of the Act shall apply to the extent they are more beneficial to that assessee. Since the Indo-Thailand DTAA does not provide for taxability of "fee for technical services" in the case of the three recipients, who are residents of Thailand, the beneficial provisions of the DTAA shall prevail. In-fact, before us this aspect of the matter is also not in dispute. 13. However, Revenue has contended that the CIT(A) erred in considering that there is no separate Article in the DTAA to deal with "fee for technical services". As per the Revenue, CIT(A) ought to have considered Article 22 of the DTAA which was a residual clause and that such clause covered the taxability of the impugned sums. In our considered opinion, the aforesaid plea of the Revenue is not justified. In situations like the present, it cannot be said that the impugned income is a miscellaneous income so as to justify invoking of Article 22 of the DTAA. The judgement of the Hon'ble Madras High Court in the case of Bangkok Glass Industry Co. Ltd. vs. ACIT, (2013) 34 taxm....