2022 (3) TMI 1209

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....ment Years 2012-13, 2014-15 and 2015-16. 2. Since the underlying facts in issue are common in all these three appeals, they were heard together and are disposed of by this common order for the sake of convenience and brevity. 3. The common challenge in all the above captioned appeals is that the DRP erred in upholding the action of the Assessing Officer in holding that the appellant has a business connection as well as Permanent Establishment [PE] in India. Placing reliance on earlier Assessment Years 2002-03 to 2006-07 and holding that the payment received by the appellant from supply of equipment on an offshore basis were taxable in India u/s. 9(1)(i) of the Act r.w. Article 7 of the India - USA DTAA. 4. Second challenge is in respect ....

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....t, the assessee submitted transfer pricing order passed in the case of GEIIPL for Assessment Year 2011-12 wherein it has been held that GEIIPL has been compensated at an arm's length price for marketing support services provided to GE's overseas affiliates. 10. After considering the detailed submissions and referring to various judicial decisions, the Assessing Officer observed that the assessee itself has admitted that it has availed certain marketing support services from GEIIPL pursuant to service agreement effective from 01.08.2010. Therefore, GEIIPL has played a vital role in assessee's business in India. 11. Once again, referring to the assessment proceedings for Assessment Year 2006-07, the Assessing Officer based his f....

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....pute that for the year under consideration, there is no specific finding given neither by the Assessing Officer nor by the DRP in respect of the presence of the expat employees. In our considered opinion, whether an assessee has PE in a particular Assessment Year has to be decided on facts of that Assessment Year and not by the facts of earlier Assessment Years. 16. Moreover, when the assessee has raised specific objections before the DRP, the DRP ought to have given findings on the objections raised by the assessee. We find that the order of the DRP is silent in this respect. Moreover, the premises which were considered to be at the disposal of the employees of the assessee were not in use any more in Assessment Years 2014-15 and 2015-16.....

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....se" denote that both specific use and use of copy right result in earning of royalty income, even if it is called as 'sale' can be treated as royalty under the provisions of the Act. 23. This quarrel is now well settled by the decision of the Hon'ble Supreme Court in the case of Engineering Analysis Center of Excellence Pvt. Ltd. [2021] 432 ITR 471. The conclusion drawn by the Hon'ble Supreme Court in respect of such quarrel read as under: "Given the definition of royalties contained in article 12 of the DTAAs 168 mentioned in paragraph 41 of this judgment, it is clear that there is no obligation on the persons mentioned in section 195 of the Income-tax Act to deduct tax at source, as the distribution agreements/EULAs in ....