2023 (3) TMI 510

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....figures and hence, we reproduce grounds in IT(IT)A No.7/Bang/2018 which are as follows: 1. The Order is bad in law and on facts 1.1 The Order passed by the Ld. CIT(A) under section 250 r.w.s 201(1) and 201(1 A) of the Act, is bad in law and on facts. 2. Erroneous dismissal of appeal filed before the Ld. CIT(A) 2.1 The Ld. CIT(A) failed to appreciate that the favorable ITAT order dated 10 March 2022 passed in case of the Appellant for AY 2009-10 was in respect of regular assessment proceedings, and not against the TDS proceedings under section 20 1 ( 1 ) and 20 1 ( 1 A) of the Act for AY 20 1 0- 1 1 . 2.2 Consequentially, the Ld. CIT(A) erred in holding that there remained no issue for adjudicatio....

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.... 58037 14509.25     43527.8 Technical assistance for 8 97172     20303.78 60721.7 Total 477223   .     2.3 Examination of payments made by the assessee to CGTM, France reveals that the payments were made without deduction of tax at source for availing the technical assistance. Further CGTM, France had also not filed any application before the Department for lower or NIL rate of deduction of tax at source. No application was also filed neither by the assessee nor by CGTM, France before the AAR seeking a ruling on the issue of deduction of tax at source on the payments made to CGTM, France for payment made towards technical assistance. 2.4 As per the pro....

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.... years 2010-11 & 2013-14 by above grounds of appeal. 2.7 At the time of hearing, ld. A.R. submitted that the assessee came in appeal before this Tribunal in assessment year 2009-10 in ITA No.83/Bang/2018 with regard to disallowance u/s 40(a)(ia) of the Act in respect of non IT( deduction of TDS in that assessment year on the same issue as in the present case for non-deduction of TDS. Thus, he submitted that in ITA No.83/Bang/2018 vide order dated 10.3.2022, the Tribunal held as under: "11. We have heard both the parties and perused the materials on record. The nature of service rendered by CGTM France to the assessee needs to be examined. The ALH Shakti Engine was co-developed by Turbomeca (a company based at France) and the ass....

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....ture without having recourse to the person providing the service. The Hon'ble Karnataka High Court in the case of CIT vs. De Beers India Minerals Pvt. Limited (2012): 346 ITR 467 (Kar) while considering a similar issue has held that "To be said to "make available", the service should be aimed at and result in transmitting technical knowledge etc so that the payer of the service could derive an enduring benefit and utilize the knowledge or know-how on his own in future without the aid of the service provider. In other words, to fit into terminology "making available", the technical knowledge, skills" etc must remain with the person receiving the service even after the particular contract comes to an end. It is not enough that th....