AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (10) TMI 1630
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....he order of assessment passed u/s. 144C (1) r.w.s. 143(3) and 92CA(3) of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 31/01/2018 & 31/03/2016 respectively by the ld. Joint Commissioner of Income Tax (OSD) (International Taxation) -3(1)(1), Mumbai (hereinafter referred to as ld. AO). 2. The first common issue involved in these appeals is as to whether the ld. CIT(A) was justified in holding that the fees received from Indian companies by the assessee with regard to investment banking transactions carried out overseas cannot be deemed to accrue or arise in India in the facts and circumstances of the case. 3. The brief facts of this issue are that the assessee is a company incorporated in UK and is registered as a Fore....
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....nd hence not included in the total income of the assessee since the receipt is not accruing or arising on India. Alternatively, it was also stated that even if the said income is deemed to accrue or arise in India, it would not be taxable as per Article 13 of the Indo-UK DTAA as the rendered services does not satisfy the "make available" clause. 3.1. The ld. AO did not heed to the contentions of the assessee and proceeded to hold that the said underwriting fees received is deemed to accrue or arise in India and is taxable as fee for technical services both under the Act as well as under India UK DTAA by observing as under:- "As per the scheme of the Govt. of India, India, Indian companies can access global market and tap the fun....
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....se services cannot be said to be accruing in India is incorrect as the services have eventually been utilized in India. Moreover, there has been an amendment in the Income-tax Act V? wherein an explanation to Sec 9(1) has been included retrospectively with effect from 01.06.1976, The provision is reproduced as under: "For the removal of doubts, it is hereby declared that for the purposes of this section, where income is deemed to accrue or arise in India under clauses (v). (vi) and (vii) of sub-section (1), such income shall be included in the total income of the non-resident, whether or not the non-resident has residence or place of business or business connection in India." In view of the above amendment, what i....
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.... b) The provisions of Section 9(1)(vii) applicable in this case is as under -income by way of fees for technical services payable by - "(b) a person who is a resident, except where the fees are payable in respect of services utilized in a business or profession carried on by such person outside India or for the purposes of making or earning any income from any source outside India; Explanation 2 : For purpose of this clause ' fees for technical services' means any considering (including any lump sum consideration) for the rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel)." c) The nature of services rendered by the....
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....ate Bench of this Tribunal in assessee's own case for the A.Y.2008-09 in ITA No.940/Mum/2012 dated 08/08/2013 had decided this issue in favour of the assessee by observing as under:- "4. Having considered the rival submissions and careful perusal of the record we note that the assessee is a company incorporated under the laws of United Kingdom and operating as FII in India. The assessee also acts as lead manager and underwriter to the ADRs/GDRs issued by Indian companies abroad for raising capital. Since the assessee has undertaken investment banking transactions overseas in respect of which it had received certain amount from Indian companies, it was claimed by the assessee that the aforesaid activity carried on outside India and ....