Avaya International Sales Ltd, Gurugram V. ACIT, Circle 1(1)(1), International Taxation, New Delhi

ITA 1149/DEL/2023

AI Insights

The case involves Avaya International Sales Ltd., a non-resident corporate entity and tax resident of Ireland, appealing against the orders of the Commissioner of Income Tax (Appeals)-42, Delhi, which characterized certain receipts as Fees for Technical Services (FTS) under both domestic law and the India-Ireland Double Taxation Avoidance Agreement (DTAA). The Tribunal noted that the issue had been previously addressed in the assessee's own case for different assessment years, where it was restored to the Assessing Officer for a fresh examination. The Departmental Representative agreed with the assessee's counsel that similar directions could be applied to the current assessment years in dispute.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 300613 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 08-06-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 18-04-2023
• Other Referred Cases: CIT Vs. Bharti Cellular
• Laws Referred To: Article 12 of India \\u2013 Ireland Double Taxation Avoidance Agreement (DTAA)
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘D’ NEW DELHI BEFORE SHRI G.S. PANNU, HON’BLE PRESIDENT AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA Nos.1149 & 959/Del/2023 Assessment Years: 2017-18 & 2021-22 Avaya International Sales Ltd., C/o- Rohit Verma, Ernst & Young LLP, 4 th Floor, Golf View, Corporate Tower-B, Sector-42, Golf Course Road, Gurgaon Vs. ACIT, Circle –1(1)(1), New Delhi PAN :AAKCA7138A (Appellant) (Respondent) ORDER PER SAKTIJIT DEY, JM: Captioned appeals by the assessee arise out of two separate orders, both dated 03.03.2023 of learned Commissioner of Income Tax (Appeals)-42, Delhi, for the assessment years 2017-18 and 2020-21. Appellant by Sh. Sashwat Bajpai, Advocate Respondent by Ms. Mrinal Kumar Dass, Sr. DR Date of hearing 09.06.2023 Date of pronouncement 16.06.2023 ITA Nos.1149/ & 959/Del/2023 AYs: 2017-18 & 2020-21 2 | P a g e 2. The dispute arising in the appeals relates to taxability of certain receipts at the hands of the assessee as Fees for Technical Services (FTS). 3. Briefly the facts are, the assessee is a non-resident corporate entity and a tax resident of Ireland. During the assessment years under dispute, the assessee received revenue for rendition of certain services. Relying upon the decision taken in assessment year 2016-17, the Assessing Officer characterized the receipts as FTS, both under the domestic law as well as under Article 12 of India – Ireland Double Taxation Avoidance Agreement (DTAA). Learned Commissioner (Appeals) upheld the aforesaid decision of the Assessing Officer. 4. Before us, learned counsel for the assessee submitted, while deciding identical issue in assessee’s own case in assessment years 2016-17, 2018-19 and 2019-20, the Tribunal has restored the issue back to the Assessing Officer for de novo adjudication with certain directions. He submitted, similar direction can be issued in the impugned assessment years as well. 5. Learned Departmental Representative fairly agreed with the aforesaid submission of the assessee. ITA Nos.1149/ & 959/Del/2023 AYs: 2017-18 & 2020-21 3 | P a g e 6. Having considered rival submissions and perused the materials on record, we find, while considering identical issue in assessee’s own case in assessment year 2016-17, the Tribunal in ITA Nos. 526 & 714/Del/2020, dated 07.03.2023, has restored the issue to the Assessing Officer. Following the decision rendered in assessment year 2016-17, the Tribunal again restored identical issue to the Assessing Officer in assessment years 2018-19 and 2019-20. The relevant observations of the Coordinate Bench in this regard are as under: “8. We have considered rival submissions and perused the materials on record. It is evident, both the Assessing Officer and learned Commissioner (Appeals) while coming to their respective conclusion that the service revenue received by the assessee is in the nature of FTS, have relied upon the decision taken by them in assessee’s own case in earlier assessment year i.e. assessment year 2016-17. It is observed, while deciding the cross appeals for assessment year 2016-17 in ITA Nos. 526 & 714/Del/2020, the Tribunal in order dated 07.03.2023 has restored the issue back to the Assessing Officer with the following directions: “13. The bench is of considered opinion that although reference has been made by the Tax Authorities below to have taken into consideration aspect of questioning technical services on the basis of human intervention however, there seems to have been lack of examination of the issue taking into account the relevant evidence and opinion of expert. Conclusion are more on basis of general perception of the nature of service. Thus, the bench is of considered opinion that this issue requires restoration to the files of the Id AO to decide the issue afresh after taking into consideration the judgment of the Hon'ble Supreme Court in CIT Vs. Bharti Cellular (supra). In the light of the aforesaid the grounds in appeal of the assessee are allowed for statistical purposes.” 9. Facts being identical, respectfully following the decision of the Coordinate Bench in assessee’s own case, as referred to above, we ITA Nos.1149/ & 959/Del/2023 AYs: 2017-18 & 2020-21 4 | P a g e restore the issue to the Assessing Officer for de novo adjudication with similar directions as given in assessment year 2016-17. Grounds are allowed for statistical purposes.” 7. There being no difference in the factual position in the impugned assessment years, respectfully following the consistent view expressed by the Tribunal in assessee’s own case, as discussed above, we restore the issue to the Assessing Officer for de novo adjudication with similar direction given in assessment year 2016-17. Grounds are allowed for statistical purposes. 8. In the result, appeals are allowed for statistical purposes. Order pronounced in the open court on 16 th June, 2023 Sd/- Sd/- (G.S. PANNU) (SAKTIJIT DEY) PRESIDENT JUDICIAL MEMBER Dated: 16 th June, 2023. RK/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi