DCIT, CIR 16(2), MUMBAI vs. M/S KPMG ASSURANCE AND CONSULTING SERVICES LLP, MUMBAI

Order dated 31.10.2023 passed in the above matter has some typographical errors as under :- a) On page 9, last line of para 9, the word “allowed” to be substituted by “upheld”. b) On page 11, last line of para 12, the word “allowed” to be substituted by “dismissed.”

Accordingly, Para No 9 and 12 are read as under :-

We have carefully considered the rival contention and perused the orders of the lower authorities. We find that ground number 1 – 4 of the appeal of learned assessing officer is with respect to the deduction of tax at source on professional fees paid to various outside consultants outside India amounting to ₹ 79,915,590/– on which the tax has not been deducted by the assessee and therefore same has been disallowed. While deciding the issue the learned CIT – A has referred to the several judicial precedent of BSR and Co LLP on identical issue wherein it has been held that no tax is required to be deducted at source on various payments to the foreign consultant because of the reason that the services do not „make available‟ those services to the assessee. Wherever the Double Taxation Avoidance Agreement did not contain the article of Fees For Technical Services, we are of the opinion that it cannot go to the article of „other income‟ only because of the reason that FTS article is not there in the Double Taxation Avoidance Agreement. To bring it under article “ other Income “ , it has to be established first that income stream does not fall in any other article