TaxTMI 
TaxTMI 
2023 (3) TMI 262
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....ct, 1961 (for short 'the Act') pursuant to the directions of the Dispute Resolution Panel (DRP). 2. Since the issues are common & connected and all the appeals were heard together, these are disposed off by this common order for the sake of convenience. 3. Since the grounds are common we are referring to grounds for AY 2018-19 as under :- "Ground 1 On the facts and circumstances of the case and in law, the Ld. AO pursuant to the directions of the Hon'ble Dispute Resolution Panel (Hon'ble DRP') erred in treating the receipt of fees for business support services of INR 11,85,39,571 as Fees for technical services C'FTS') as per Article 12 of the tax treaty between India and Netherlands without apprec....
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..... AO pursuant to the directions of DRP erred in treating the receipts of fees for business support services of Rs.11,85,39,571/- as Fees for Technical Services (FTS) as per Article 12 of the tax treaty between India and Netherlands without appreciating that the services are managerial in nature and hence do not fall within the definition of FTS. 5. At the outset, in this case, ld. Counsel for the assessee pleaded that the issue is squarely covered by the decision of ITAT in the assessee's own case in ITA No.7545/Del/2017 for AY 2014-15 vide order dated 31.01.2023. 6. Ld. DR for the Revenue submitted that the said order is distinguishable and the order of the authorities below should be sustained. He referred to the agreement and point....
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....eal before us. We have heard both the parties and perused the records. 10. We note that identical issue was subject matter of consideration of the ITAT in assessee's own case in ITA No.7545/Del/2017 for Assessment Year 2014-15. The Tribunal vide order dated 31.01.2023 had held that the payment received cannot be treated as FTS under Article 12 (5) of India Netherlands DTAA and the addition made is to be deleted. We may gainfully refer to the order of ITAT in this regard as under:- "3. Briefly the facts are that the assessee is a non-resident corporate entity incorporated in Netherland and tax-resident of Netherland. For the assessment year under dispute, the assessee filed its return of income on 31.03.2016 declaring income of R....
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....services, however, the make available condition has not been satisfied. 9. Learned Departmental Representative strongly relied upon the observations of the Assessing Officer and learned DRP. 10. We have considered rival submission and perused the material available on record. 11. As could be seen from the draft assessment order, the Assessing Officer has very clearly and categorically mentioned that assessee's employees never visited India for rendering any kind of services. Whatever services rendered, were through mail/correspondences/reports etc. From the facts available on record, it is noticed, the services rendered by the assessee are as under: i) Engineering Services (Application Engineering and Tec....