TaxTMI 
TaxTMI 
2024 (5) TMI 1067
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....ly. The Revenue has filed a petition for condonation of delay. On perusal of the reasons stated in the petition for condonation of delay, we are of the view that there is reasonable cause and no latches can be attributed to the Revenue for late filing of these appeals. Hence, we condone the delay of 37 days and 44 days in filing appeals for Assessment Years 2016-17 and 2017-18 and proceed to dispose off the same on merits. 3. Identical grounds are raised in both the appeals. The grounds raised read as follows: "1. Whether in the facts and circumstances of the case, the Ld. CIT(A) was right in law in relying upon the decision of Hon'ble High Court in assessee's own case which has not yet reached finality? Whether in the facts a....
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....by the Revenue in the earlier years. The relevant portion of the AO's order for Assessment Year 2016-17 reads as follows: "5. It was also gathered that the said issue is the subject matter of order under section 201 and 201(1A) dated 16.02.2018. Accordingly, on 13.12.2018. the vide notice under section 142(1) assessee was asked to why disallowance should not be made under section 40(a)(i) for an amount of Rs. 118447825/- in line with the order under section 201 and 201(1A) dated 16.02.2018. In response to the same, the assessee submitted an objection dated 17.12.2018. 6. The assessee submission has been analysed and it has been seen that order dated 10.04.2018 under section 201 has dealt with the objections raised in a comprehensive ma....
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....ration. 1) The concept of 'make available', if the view is applied as technical knowledge, experience, skill, know-how, etc. has to be given to the assessee, then any technical service provided for a technical issue, which is short term or temporary basis will not fall under FTS. The interpretation adopted by the several cases has flaw of reasoning, by the fact that it has not compared with the term services in a dynamic approach. The management / commercial / advisory services have to be taxed even if it does not have the effect of long-term or durable effect. 2) I submit that the Fees for technical services is to be determined on the basis of the term "make available", then the term 'make available' is to be interpre....
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....erformed by few skilled persons and that skilled person is held-up by particular entity). Now, the IPR can be made available through royalty agreements for a duration and whereas the technical service is to be performed by skilful/specialized persons (HR) as and when it is required. It has to be made available by that entity which is having it. Otherwise, if the technical services, if available to an entity in its home country, then what it will attain from getting it outside the country. The term available means a thing which is not available in common (IPR and skilled persons), and it is made available through international transactions. The term 'make available' is being misinterpreted by comparing it with the term 'make u....
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....vice to 'Z', who is employee of 'A'. Will 'Z' have the ability to perform the service without the supervision of 'X'? Whether the `Z' has the necessary specialized qualifications to perform the service? 4) Whether the legal/technical issue will be same in the upcoming future years? Even if it is assumed that the issue remains the same for future years, will it be handled by some expert like 'X' or by 'Z' who doesn't have specialization but who got basic understanding from the previous issue? 5) What will be the value of the skilled persons who perform technical/specialized services; If it has to be imparted to the receiver and their education? 6) Can a same issue will be preva....
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....2 to 2017-18, the Tribunal, vide its consolidated order dated 20.03.2020 in ITA No.490 to 503/Bang/2019, had decided the issue in favour of the assessee. The Tribunal had examined in detail the agreement entered into by the assessee with its payee and the nature of services rendered, etc. Thereafter, it was concluded by ITAT that the payments cannot be attributed as FTS and assessee cannot be made liable under section 201 of the Act. The relevant conclusion of the Tribunal at paras 15.1 and 16 reads as follows: "15.1 As per the above discussion, we have seen that in the facts of the present case, the services received by the assessee company cannot be considered as 'royalty' or fees for included services and the assessee was not u....