TaxTMI 
TaxTMI 
2022 (8) TMI 1631
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.... liaison office of the group, M/s. Raytheon International Inc. (RII) one of the divisions that represents the assessee worldwide had a liaison office in India since 1995. ● The assessee had throughout a substantial presence at the sale of execution of contract which constituted fixed place of business PE of the assessee. ● The liaison office of the group from which marketing and support services were being rendered constituted fixed place of business of the assessee. ● The project office/site office of the assessee and the liaison office of the group, for the execution of the contract in India constituted PE under Article 5(2)(a), (b) and (c) of DTAA between India and USA. ● The installation work undertaken for the period of more than 120 days as per the terms of the contract constitutes PE of the assessee under Article 5(2)(k) of the Treaty and the installation was inextricably linked with the supply of the equipment and services. ● That the presence of the personnel for more than 90 days in India and constituted PE under Article 5(2)(1) of the Treaty. 2) Whether on the facts and circumstances of t....
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....AO that the assessee constitutes a PE in India. 3) Whether on the facts and circumstances of the case, the Ld. CIT(A) has erred in holding that receipts of Rs. 5,09,97,939/- of the assessee from Amendment to Hardware Repair Support Contract were not taxable in India in the absence of PE ignoring the detailed findings of the AO that the assessee constitutes a PE in India. 4) Whether on the facts and circumstances of the case the CIT(A) has erred in holding that the revenue of Rs. 31,64,12,157/- received from amendment to Hardware Repair Support Contract are not FIS (Fees for included services) as this revenue constituted the business income ignoring the detailed findings of the AO that the receipts of Rs. 31,64,12,157/- pertain to the services under Hardware repair support services and the sum of Rs. 31,64,12,157/- would qualify as Fee for included services (FIS) under the Article 12(4) of India-USA DTAA and Income Tax Act, 1961. 5) Whether on the facts and circumstances of the case the CIT(A) has erred in not holding that as per the contract, the assessee has to receive sum of Rs. 31,64,12,157/- to provide the repair support services, in case, the hardwar....
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....nt under the Chennai Contract for supply of software has been considered as embedded software and not taxable as Royalty. Similarly, the offshore training related to such software shall not be treated as FIS. Taxation of receipts under Network Centric Systems for supply of ATM Software for Modernisation of airfield infrastructure phase -1 ('MAFI Software') 5. The Ld. CIT(A) erred in holding that the revenues from supply of software are taxable as Royalty income under Article 12 of India USA DTAA without appreciating that the revenues earned were only on account of "right to use of a copyrighted article'' and "no right in the copyright" was granted by the Appellant to the Indian customer. 6. The Ld. CIT(A) has erred in relying on the Advance Ruling obtained by the customer under SSID contract for taxing the receipts under the MAFI Software contract as Royalty by treating it as a similar contract. GROUNDS OF APPEAL 7. The Ld. CIT(A) erred in not appreciating that the revenues earned by the Appellant partook the nature of business income which were not taxable in India when the Ld. CIT(A) had deleted the constitution of PE of the Appellant in India. Taxa....
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....ion 16. The Ld. CIT(A) erred in holding that the revenues from supply of documentation are taxable as Royalty income under Article 12 of India-USA DTAA without appreciating that it's a case of documentation which has been supplied along with the equipment, for the limited purposes of use to operate the equipment and not for any commercial exploitation. 17. The Ld. CIT(A) erred in not appreciating that the revenues earned were only on account of "right to use of a copyrighted article" being documentation and "no right in the copyright" was granted by the Appellant to the Indian customer. 18. The Ld. CIT(A) erred in not appreciating that the revenues earned by the Appellant partook the nature of business income which were not taxable in India when the Ld. CIT(A) had deleted the constitution of PE of the Appellant in India. All of the above grounds of appeal are without prejudice and notwithstanding each other. The Appellant craves leave to add, amend, vary, omit or substitute any or all of the above grounds of appeal, at any time before or at the time of hearing of the appeal. Any consequential relief, to which the Appellant may be entitled under l....