TaxTMI 
TaxTMI 
TaxTMI 
2023 (3) TMI 711
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..... 2. The facts of the case is that appalent and assessee Concentrix CVG Customer Management Group Inc. (Formerly known as "Convergys Customer Management Group Inc.") is a company incorporated in the United States of America ("USA") and is a tax resident thereof. The Appellant provides information technology enabled customer management services by utilizing its advanced information system capabilities, human resource management skills and industry experience. Appellant has claimed to be entitled to the benefits of the Double Taxation Avoidance Agreement between India and United States of America (hereinafter referred to as "the DTAA"). Tax residency certificates were furnished during the course of the assessment proceedings and was accepted as such. The Appellant has a subsidiary in India by the name of Convergys India Services Private Limited (hereinafter referred to as 'CIS'). To service its customers, the Appellant claims that it procures services from India and does not carry out any operations in India. 2.3 Based on the assessment history of the case and the facts observed during the course of assessment proceedings, the following issues emerged for determination in the case ....
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..... Ld. CIT(A) however decided the issue of link charges in favour of the assessee by following findings :- "10.7 Respectfully following the Hon'ble IT Jurisdictional High Court's decision of New Skies Satellite BV (supra) wherein it is held that the amendment in section 9 will not affect DTAA, and concurring with Ld. CIT(A)-42, Delhi order in AYs 2013-14 and 2014-15, I conclude that the payment of link charges received by the appellant from Convergys India Services Pvt. Ltd. would not qualify even as "process" Royalty in terms of Article 12 of the India-US DTAA. This ground of appeal is allowed." 6. The appeal of assessee ITA no. 1086.Del./2022 raises following grounds :- "1. On the facts and in the circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals)-42, New Delhi ['CIT(A)'] erred in confirming the order of the Ld. Assessing Officer ('AO') that the Appellant has a Permanent Establishment ('PE') in India in the nature of a Fixed Place PE under Article 5 of the Double Taxation Avoidance Agreement between India and United States of America ('DTAA'). 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding tha....
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....yalty, and alternatively taxable as process royalty in India. (v) The appellant craves to add, amend, modify, or alter any grounds of appeal at the time or before, the hearing of the appeal." 7. Heard and perused the record. 8. Ld. AR of the assessee at the outset submitted that the issues stand covered by the co-ordinate Bench orders. Ld. DR could not dispute the same. 9. It can be appreciated that the ground no. 1 and 3 of the assessee's appeal ITA No. 1086/Del/2022 by which assessee has raised the issue of holding fixed place permanent establishment of the assessee in India, in assessee's own case the Tribunal for assessment year 2013-14, 2014-15 has upheld the following findings of Ld. CIT(A) by following these findings of AY 2006-07 and 08-09; as reproduced in para 6.2 of order for A.Y. 2013-14 :- "6.2 After duly considering the submissions of both the sides as well as the impugned order, we are of the considered opinion that the Tribunal in assessee's own case for Assessment Years 2006-07 and 2008-09 has reached the conclusion that there was a fixed place PE of the assessee in India and that profit attribution had to be made in the hands of the assessee due to such fix....
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....d 2008-09 has laid down the methodology in paragraphs 11.17 to 11.26 of the said order and respectfully following the same, the TPO is directed to adopt the same methodology as enumerated by the Co-ordinate Bench. Thus, the issue to attribution of profits is restored to the file of TPO for computing the attribution of profits with respect to the fixed place PE after giving due opportunities to the assessee to submit its computation and calculations. Thus, Ground Nos.3 & 4 in assessee's appeal and Ground No.3 in Department's appeal stand allowed for statistical purposes." 10.1 Accordingly the grounds are decided for statistical purposes with directions to the Ld. AO to follow the Tribunal directions in AY 2006-07 to 2014-15. 11. In regard to ground no. 2 of department's appeal ITA No. 1281/Del/2022 for issue of service PE of assessee and ground no. 1 in regard to dependent agent PE in India, again the issues are covered in favour of the assessee and the relevant findings from order of AY 2013-14 are reproduced :- "7.0.1. We also note that the Ld. CIT(A) has returned a finding based on the order of the ITAT and has also noted that even in assessment year 2006-07, the Ld. CIT(A) h....