DCIT, CENTRAL CIRCLE - 1(4), KOLKATA , KOLKATA vs. M/S. HINDUSTAN URBAN INFRASTRUCTURE LTD.(HINDUSTAN VIDYUT PRODUCT LTD.,), NEW DELHI

Bench: Shri S.S.Godara & Shri, M. Balaganesh

9 (1) (vii) of the Act and therefore TDS certificate is essential. 6. Whether this contention is correct, is the issue to be decided. 7. In order to appreciate this contention, it is necessary to consider the relevant provisions of the Act:-- (i) Section 40(a)(i) of the Act :-- "Section 40 - Amounts not deductible: Notwithstanding anything to the contrary

DCIT, CENTRAL CIRCLE - 1(4), KOLKATA , KOLKATA vs. M/S. HINDUSTAN URBAN INFRASTRUCTURE LTD.(HINDUSTAN VIDYUT PRODUCT LTD.,), NEW DELHI

Bench: Shri S.S.Godara & Shri, M. Balaganesh

9 (1) (vii) of the Act and therefore TDS certificate is essential. 6. Whether this contention is correct, is the issue to be decided. 7. In order to appreciate this contention, it is necessary to consider the relevant provisions of the Act:-- (i) Section 40(a)(i) of the Act :-- "Section 40 - Amounts not deductible: Notwithstanding anything to the contrary

ACIT, CIR-2, TDS, KOLKATA, KOLKATA vs. LUX INDUSTRIES LTD., KOLKATA

Appeals are dismissed

Bench: Hon’Ble Shri S.S.Godara, Jm & Shri M.Balaganesh, Am ]

vi) of sub- section (1) of section 9: (B) "fees for technical services" shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9: (ia) thirty per cent of any sum payable to a resident, on which tax is deductible at source under Chapter XVIIB and such tax has not been deducted

ACIT, CIR-2, TDS, KOLKATA, KOLKATA vs. LUX INDUSTRIES LTD., KOLKATA

Appeals are dismissed

Bench: Hon’Ble Shri S.S.Godara, Jm & Shri M.Balaganesh, Am ]

vi) of sub- section (1) of section 9: (B) "fees for technical services" shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9: (ia) thirty per cent of any sum payable to a resident, on which tax is deductible at source under Chapter XVIIB and such tax has not been deducted

DCIT, CIR-8(1), KOLKATA, KOLKATA vs. M/S EIH LTD., KOLKATA

In the result, the appeal of the assessee is partly allowed for statistical purposes and the appeal of the revenue is dismissed

Bench: Hon’Ble Shri Aby. T. Varkey, Jm & Shri M.Balaganesh, Am ] I.T.A No. 153/Kol/2016 Assessment Year : 2011-12 Dcit, Circle-8(1), Kolkata -Vs- M/S Eih Limited [Pan: Aaace 6898 B] (Appellant) (Respondent) I.T.A No. 110/Kol/2016 Assessment Year : 2011-12 M/S Eih Limited -Vs- Dcit, Circle-8(1), Kolkata [Pan: Aaace 6898 B] (Appellant) (Respondent) For The Appellant : Shri Kanchun Kaushal,Ar For The Department : Shri G.Mallikarjuna, Cit Dr Date Of Hearing : 26.10.2017 Date Of Pronouncement : 12.01.2018 Order Per Bench:

vi) of the Act. Similarly the said remittances were not for rendering any managerial, technical or consultancy services and hence should not quality as Fees for Technical Services (FTS) u/s 9(1)(vii) of the Act. Accordingly, the remittances would not be taxable as Royalty / FTS under the Act. Further since all the operations of Payee are carried out outside

EIH LTD.,KOLKATA vs. THE DCIT, CIR-8(1), KOLKATA, KOLKATA

In the result, the appeal of the assessee is partly allowed for statistical purposes and the appeal of the revenue is dismissed

Bench: Hon’Ble Shri Aby. T. Varkey, Jm & Shri M.Balaganesh, Am ] I.T.A No. 153/Kol/2016 Assessment Year : 2011-12 Dcit, Circle-8(1), Kolkata -Vs- M/S Eih Limited [Pan: Aaace 6898 B] (Appellant) (Respondent) I.T.A No. 110/Kol/2016 Assessment Year : 2011-12 M/S Eih Limited -Vs- Dcit, Circle-8(1), Kolkata [Pan: Aaace 6898 B] (Appellant) (Respondent) For The Appellant : Shri Kanchun Kaushal,Ar For The Department : Shri G.Mallikarjuna, Cit Dr Date Of Hearing : 26.10.2017 Date Of Pronouncement : 12.01.2018 Order Per Bench:

vi) of the Act. Similarly the said remittances were not for rendering any managerial, technical or consultancy services and hence should not quality as Fees for Technical Services (FTS) u/s 9(1)(vii) of the Act. Accordingly, the remittances would not be taxable as Royalty / FTS under the Act. Further since all the operations of Payee are carried out outside

EIH LIMITED,KOLKATA vs. DCIT, CIR-8(1)KOL., KOLKATA

In the result, assessee’s appeal stands partly allowed for statistical purpose

Bench: Shri N.V.Vasudevan & Shri Waseem Ahmedassessment Year :2012-13 Eih Ltd V/S. Dcit, Circle-8(1), 4, Mangoe Lane, Aayakar Bhawan, P-7, Kolkata-700 001 Chowringhee Square, [Pan No.Aaace 6898 B] Kolkata-69 .. अपीलाथ" /Appellant ""यथ"/Respondent Shri Ravi Sharma, Ar अपीलाथ" क" ओर से/By Appellant Shri P.K. Srihari, Cit-Dr ""यथ" क" ओर से/By Respondent 27-02-2018 सुनवाई क" तार"ख/Date Of Hearing 16-05-2018 घोषणा क" तार"ख/Date Of Pronouncement आदेश /O R D E R Per Waseem Ahmed:- This Appeal By The Assessee Is Directed Against The Order Of Dispute Resolution Panel-2, (Drp For Short) Dated 17.10.2016. Assessment Was Framed By Dcit, Circle-8(1), Kolkata U/S 144C(13)/143(3) Of The Income Tax Act, 1961 (Hereinafter Referred To As ‘The Act’) Vide His Order Dated 29.11.2016 For Assessment Year 2012-13 & Grounds Raised By Assessee Read As Under:- “1.0 Determination Of Arm'S Length Price For Corporate Guarantee Fees 1.1 On The Facts & In The Circumstances Of The Case & In Law, The Learned Transfer Pricing Officer (Hereinafter Referred To As "Ld, Tpo") & Accordingly Learned Assessing Officer (Hereinafter Referred To As "Ld. Ao") Erred In Treating The Corporate Guarantee Extended By The Appellant To Its Associated Enterprise (Ae) As International Transaction & Dispute Resolution Panel (Hereinafter Referred To As "Ld, Panel") Erred In Confirming The Same As An International Transaction Without Appreciating The Fact That It Does Not Fall Within The Ambit Of "International Transaction" U/S 92B Of The Act. 1.2 The Ld.Ao/Tpo & The Ld. Panel Failed To Appreciate The Fact That Corporate Guarantee Has Been Advanced By The Appellant As A Matter Of Commercial Prudence To Protect The Business Interest Of The Group By Fulfilling

vi) Marketing and development expenses ITA No.117/Kol/2017 A.Y. 2012-13 EIH Ltd. Vs. DCIT, Cir-8(1), Kol. Page 29 Out of total expenses incurred in foreign currency, assessee has not deducted Tax at Source (TDS) on the amount of ₹5,30,91,623/- only. The assessee claimed that the impugned expenses are not chargeable to tax in India

ACIT, CIRCLE - 52, KOLKATA, KOLKATA vs. SHRI SUBHOTOSH MAJUMDER, KOLKATA

In the result, the appeals of revenue are dismissed

Bench: Shri Mahavir Singh, Jm & Shri M. Balaganesh, Am]

vi) or (vii) of sub section (1). The professional service rendered by the non-resident attorneys is not covered by any of the said clauses. Even otherwise, for the reasons stated hereinbefore, clause (vii)(b) of section 9(1) of the Act has no application in the facts and circumstances of the instant case. 11. Ld. Counsel further explained that

ACIT, CIRCLE - 52, KOLKATA, KOLKATA vs. SHRI SUBHOTOSH MAJUMDAR, KOLKATA

In the result, the appeals of revenue are dismissed

Bench: Shri Mahavir Singh, Jm & Shri M. Balaganesh, Am]

vi) or (vii) of sub section (1). The professional service rendered by the non-resident attorneys is not covered by any of the said clauses. Even otherwise, for the reasons stated hereinbefore, clause (vii)(b) of section 9(1) of the Act has no application in the facts and circumstances of the instant case. 11. Ld. Counsel further explained that

DCIT,CIRCLE-52, KOLKATA, KOLKATA vs. SRI SUBHOTOSH MAJUMDER . S. JAMUMBDER &CO,, KOLKATA

In the result, the appeals of revenue are dismissed

Bench: Shri Mahavir Singh, Jm & Shri M. Balaganesh, Am]

vi) or (vii) of sub section (1). The professional service rendered by the non-resident attorneys is not covered by any of the said clauses. Even otherwise, for the reasons stated hereinbefore, clause (vii)(b) of section 9(1) of the Act has no application in the facts and circumstances of the instant case. 11. Ld. Counsel further explained that

ITO (IT), KOLKATA, KOLKATA vs. M/S. ELECTROSTEEL CASTING LIMITED., KOLKATA

In the result, the appeal of the revenue is dismissed

Bench: Hon’Ble Sri A.T.Varkey, Jm & Shri M.Balaganesh, Am ] I.T.A No. 2249/Kol/2014 Assessment Year : 2011-12 I.T.O. (International Taxation), -Vs.- M/S. Electrosteel Casting Ltd. Kolkata Kolkata [Pan : Aaace 4975 B] (Respondent) (Appellant) For The Appellant : None For The Respondent : Shri Ravi Tulsiyan, Fca Date Of Hearing : 14.06.2017. Date Of Pronouncement : 07.07.2017 Order

vi) and 9(1)(vii) of the Act. The payment of Commission to non-resident agents does not fall in any of the three clauses of section 9(1) of the Act. 12 M/s. Electrosteel Casting Ltd. A.Yr.2011-12 10.2. It is well settled that the provisions of section 195(1) of the Act are very clear that

DCIT, CIR.-8(2), KOLKATA vs. NISSIN ABC LOGISTICS (P) LTD, KOLKATA

In the result, the appeal is allowed

Bench: Shri P.M. Jagtap, Vice- & Shri Sanjay Garg

9(1 (i) of the Act, and as such, not liable to tax in India, and consequently not liable for tax withholding in India". No TDS liability on payments to foreign shipping companies/agents of the foreign Shipping companies/ agents of non-resident companies engaged in operation of ships or aircraft in international traffic. Article 8 of the India-Japan Double

M/S BALMER LAWRIES & CO. LTD.,KOLKATA vs. INCOME TAX OFFICER(IT) WD-1(1), KOLKATA, KOLKATA

In the result, assessee’s appeal stands allowed

Bench: Shri Mahavir Singh & Shri Waseem Ahmedassessment Year :2012-13 M/S Balmer Lawrie & Co. V/S. Income Tax Officer Ltd., 21, N.S.Road, (International Taxation), Kolkata-700 001 Ward-1(1), Aayakar [Pan No. Aabcb 0984 E] Bhawan (Poorva), 2Nd Floor, R. No.215, 110, Shanti Pally, Kolkata- 700 107 .. अपीलाथ" /Appellant ""यथ"/Respondent Shri M.K.Poddar, Sr-Advocate अपीलाथ" क" ओर से/By Appellant Shri C.P.Bhatia, Jcit-Dr ""यथ" क" ओर से/By Respondent 18-02-2016 सुनवाई क" तार"ख/Date Of Hearing 27-04-2016 घोषणा क" तार"ख/Date Of Pronouncement

1), Kol. Page 3 customers; that ht Appellant has no option of making the import through any other service provider; that the Appellant was, on a regular basis negotiating and concluding the contracts including the rates and other terms with the clients in India, for and on behalf of the Overseas Entitles, which rates are binding on the overseas entities

ACIT, CIRCLE-8(2), KOLKATA, KOLKATA vs. M/S. NISSIN ABC LOGISTIC PVT. LTD., KOLKATA

In the result, appeal of revenue is dismissed

Bench: Shri P.M. Jagtap & Shri A. T. Varkey, Jm]

1) Services from the foreign customer’s premises to the foreign port/loading in ship – Rendered by group companies of the assessee outside India. (2) Services from the Indian port to the delivery point in India - Rendered by the assessee in India. In this case, the non-resident company raises an invoice on the assessee for reimbursement of expenses incurred

DCIT, CIR-12, KOLKATA, KOLKATA vs. M/S ORGANON (INDIA) PVT. LTD., KOLKATA

In the result, assessee’s appeal is allowed and that of the revenue is dismissed

Bench: Shri P.M. Jagtap, Am & Shri A. T. Varkey, Jm]

Section 9 (1) (vi), nevertheless, it can never be regarded as royalty within the meaning of the said term in article 13, para 3 of the DTAA. This is so because the definition in the DTAA is narrower than the definition in the Act. Article 13(3) brings within the ambit of the definition of royalty a payment made

ORGANON (INDIA) PVT. LTD.,MUMBAI vs. THE DCIT, CIR-12, KOLKATA, KOLKATA

In the result, assessee’s appeal is allowed and that of the revenue is dismissed

Bench: Shri P.M. Jagtap, Am & Shri A. T. Varkey, Jm]

Section 9 (1) (vi), nevertheless, it can never be regarded as royalty within the meaning of the said term in article 13, para 3 of the DTAA. This is so because the definition in the DTAA is narrower than the definition in the Act. Article 13(3) brings within the ambit of the definition of royalty a payment made

M/S. SAREGAMA INDIA LIMITED,KOLKATA vs. ACIT, (TDS) CIRCLE - 59, KOLKATA, KOLKATA

In the result, the appeal of assessee is allowed

Bench: Shri Mahavir Singh, Jm & Shri Waseem Ahmed, Am]

TDS on the ground that such payment does not fall within the definition of royalty as defined under Explanation (2) to section 9(1)(vi

GIFFORD & PARTNERS LTD.(SINCE MERGED WITH GIFFORD LLP),KOLKATA vs. ADIT (INTERNATIONAL TAXATION) - 1(1), KOLKATA, KOLKATA

In the result ITA No.1489/Kol/11 is partly allowed

Bench: Hon’Ble Shri N.V.Vasudevan, Jm & Shri Waseem Ahmed, Am] Assessment Year : 2007-08

vi) or clause (vii) of sub-section (1) and shall be included in the total income of the non-resident, whether or not,— (i) the non-resident has a residence or place of business or business connection in India; or (ii) the non-resident has rendered services in India.” It was argued that the Hon'ble Bombay High Court observed