DCIT(IT), Circle - 2(1), Kolkata, Kolkata V. M/s. The Timken Company, Kolkata

ITA 1274/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5165 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-01-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JAI SONI FCA ASSES
• Keywords: Transfer pricing; Double taxation relief; International transaction; Permanent establishment; TDS
• Section: 250; 115A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) ITA NO. 1274/KOL/2018 ASSESSMENT YEAR: 2008-09 ITA NO. 1275/KOL/2018 ASSESSMENT YEAR: 2009-10 ITA NO. 1276/KOL/2018 ASSESSMENT YEAR: 2010-11 ITA NO. 1277/KOL/2018 ASSESSMENT YEAR: 2011-12 DEPUTY COMMISSIONER OF INCOME TAX (IT), CIRCLE-2(1), KOLKATA..............................APPELLANT VS. M/S. THE TIMKEN COMPANY........................................................................RESPONDENT C/O: PRICEWATERHOUSE COOPERS PVT. LTD. PLOT NO. 56 & 57 BLOCK-DN SECTOR-V SALT LAKE CITY KOLKATA 700 091 [PAN : AABCT 9658 F] APPEARANCES BY: SHRI MADHU MALTI GHOSH, ADDL. CIT SR. D/R, APPEARING ON BEHALF OF THE REVENUE. SHRI K.M. GUPTA, FCA, & JAI SONI, FCA, APPEARED ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : JANUARY 21 ST , 2020 DATE OF PRONOUNCING THE ORDER : FEBRUARY 19 TH , 2020 ORDER PER J. SUDHAKAR REDDY, AM :- ALL THESE APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST SEPARATE BUT IDENTICAL ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 22, KOLKATA, (HEREINAFTER THE LD.CIT(A)), PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 28/03/2018, FOR THE ASSESSMENT YEARS 2008-09, 2009-10, 2010-11 & 2011-12. 2. AS THE ISSUES ARISING IN ALL THESE APPEALS ARE IDENTICAL, THEY ARE HEARD TOGETHER AND DISPOSED OFF BY WAY OF THIS COMMON ORDER. 3. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS:- 4. THERE ARE TWO ISSUES THAT ARISE IN THESE APPEALS. 5. 1) TAXABILITY OF HOME OFFICE ALLOCATION RECEIPTS. 5.1. THE LD. CIT(A) HAS ADJUDICATED 2002- 03 TO ASSESSMENT YEAR 2007 THE ASSESSEE HAS EXECUTED AN 02/08/2000 PURSUANT TO WHICH, THE ASSESSEE HAS PROVIDED CERTAIN SERVICES TO TIL. THE ASSESSEE WAS IN RECEIPT OF A SUM OF RS.2,13,08,790/ REFERRED SERVICES. THIS RECEIPT WAS COMPUTATION OF INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FURNISHED TDS CERTIFICATES RELATING TO INCOME OF HOME OFFICE ALLOCATION EXPENSES. DUE TO EXCHANGE FLUCTUATION, THE AMOUNT RS.2,32,68,409/- . THIS AMOUNT RECEIVED BY THE ASSESSEE WAS ADDED AS INCOME BY THE ASSESSING OFFICER. THE LD. FIRST APPELLATE AUTHORITY, FROM PARA FOLLOWS:- 3. IT IS OBSERVED THAT THE SIMIL CASE FOR AY 2002- 03 TO AY 2007 398/KOL/2010 [A.YS 2002 NO. 1268/KOL/2014 [A.Y. 2005 2007- 08]. THE HONBLE KOLKATA ITAT HAS CONSIDERED ALL THE CONTENTION OF THE APPELLANT AND DECIDED THE ISSUE IN FAVOUR OF THE APPELLANT. THE RELEVANT EXTRACT OF THE RULING IS REPRODUCED BELOW: 18. WE HAVE ALREADY SET OUT THE ASSESSEE TO TIL. A PERUSAL OF THE CLAUSES OF AGREEMENT DATED 2.8.2000 BETWEEN THE ASSESSEE AND TIL CLEARLY SHOWS THAT THEY ARE PURELY IN THE NATURE OF ADVISORY SERVICES. NOTHING IS MADE AVAILABLE TO TIL BY THE ASSES WHETHER OR NOT GIVING ADVISORY SERVICES CAN BE CONSIDERED TO BE MAKING AVAILABLE INCLUDED SERVICES, EXAMPLE NO. 7 GIVEN IN THE MOU BETWEEN INDIA AND USA ON THE DTAA THROWS SOME MORE LIGHT ON THE UNDERSTANDING OF THE GOVERNMENT S OF INDIA AND THE :- 'FACTS : THE INDIA VEGETABLE OIL MANUFACTURING FIRM HAS MASTERED THE SCIENCE OF PRODUCING CHOLESTEROL FREE OIL AND WISHES TO MARKET THIS PRODUCT WORLDWIDE. IT HIRES AN AMERICAN MARKETING CONSULTANCY FIRM TO DO COMPUTER SIMULATION OF THE WORLD MARKET FOR SUCH OIL AND TO ADVISE IT ON MARKETING STRATEGIES. ARE THE FEES PAID TO THE US COMPANY FOR INCLUDED SERVICES ? 2 M/S. THE TIMKEN COMPANY 1) TAXABILITY OF HOME OFFICE ALLOCATION RECEIPTS. THE LD. CIT(A) HAS ADJUDICATED THE VERY SAME ISSUE FOR THE ASSESSMENT YEAR 03 TO ASSESSMENT YEAR 2007 -08. THE ITAT UPHELD THIS ORDER. THE ASSESSEE HAS EXECUTED AN AGREEMENT WITH M/S. TIMKEN INDIA LTD. (T PURSUANT TO WHICH, THE ASSESSEE HAS PROVIDED CERTAIN SERVICES TO TIL. THE ASSESSEE WAS IN RECEIPT OF A SUM OF RS.2,13,08,790/ - FROM TIL, FOR PROVIDING THE ABOVE SERVICES. THIS RECEIPT WAS CLAIMED AS NOT TAXABLE BY THE ASSESSEE IN ITS COMPUTATION OF INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FURNISHED TDS CERTIFICATES RELATING TO INCOME OF HOME OFFICE ALLOCATION EXPENSES. DUE TO EXCHANGE FLUCTUATION, THE AMOUNT OF PAYMENT FOR SERVICES . THIS AMOUNT RECEIVED BY THE ASSESSEE WAS ADDED AS INCOME BY THE THE LD. FIRST APPELLATE AUTHORITY, FROM PARA 3 TO PARA 6 OF HIS ORDER, HELD AS IT IS OBSERVED THAT THE SIMIL AR RECEIPTS WERE ALSO INVOLVED IN APPELLANTS OWN 03 TO AY 2007 - 08. THE MATTER HAS BEEN DECIDED IN ITA NO. 387 & 398/KOL/2010 [A.YS 2002 -03 & 2003- 04] ITA NO. 2139/KOL/2013 [A.Y. 2004 NO. 1268/KOL/2014 [A.Y. 2005 -06] ITA NO. 2140 & 2141/KOL/2013 [A.YS 2006 08]. THE HONBLE KOLKATA ITAT HAS CONSIDERED ALL THE CONTENTION OF THE APPELLANT AND DECIDED THE ISSUE IN FAVOUR OF THE APPELLANT. THE RELEVANT EXTRACT OF THE RULING IS REPRODUCED BELOW: - 18. WE HAVE ALREADY SET OUT THE NATURE OF SERVICES TO BE RENDERED BY THE ASSESSEE TO TIL. A PERUSAL OF THE CLAUSES OF AGREEMENT DATED 2.8.2000 BETWEEN THE ASSESSEE AND TIL CLEARLY SHOWS THAT THEY ARE PURELY IN THE NATURE OF ADVISORY SERVICES. NOTHING IS MADE AVAILABLE TO TIL BY THE ASSES WHETHER OR NOT GIVING ADVISORY SERVICES CAN BE CONSIDERED TO BE MAKING AVAILABLE INCLUDED SERVICES, EXAMPLE NO. 7 GIVEN IN THE MOU BETWEEN INDIA AND USA ON THE DTAA THROWS SOME MORE LIGHT ON THE UNDERSTANDING OF THE GOVERNMENT S OF INDIA AND THE USA ON THE SUBJECT. THIS EXAMPLE IS AS FOLLOWS 'FACTS : THE INDIA VEGETABLE OIL MANUFACTURING FIRM HAS MASTERED THE SCIENCE OF PRODUCING CHOLESTEROL FREE OIL AND WISHES TO MARKET THIS PRODUCT WORLDWIDE. IT HIRES AN AMERICAN MARKETING CONSULTANCY FIRM TO DO COMPUTER SIMULATION OF THE WORLD MARKET FOR SUCH OIL AND TO ADVISE IT ON MARKETING STRATEGIES. ARE THE FEES PAID TO THE US COMPANY FOR INCLUDED SERVICES ? ITA NO. 1274/KOL/2018 ASSESSMENT YEAR: 2008-09 ITA NO. 1275/KOL/2018 ASSESSMENT YEAR: 2009-10 ITA NO. 1276/KOL/2018 ASSESSMENT YEAR: 2010-11 ITA NO. 1277/KOL/2018 ASSESSMENT YEAR: 2011-12 M/S. THE TIMKEN COMPANY THE VERY SAME ISSUE FOR THE ASSESSMENT YEAR AGREEMENT WITH M/S. TIMKEN INDIA LTD. (T IL) ON PURSUANT TO WHICH, THE ASSESSEE HAS PROVIDED CERTAIN SERVICES TO TIL. THE PROVIDING THE ABOVE CLAIMED AS NOT TAXABLE BY THE ASSESSEE IN ITS COMPUTATION OF INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FURNISHED TDS CERTIFICATES RELATING TO INCOME OF HOME OFFICE ALLOCATION EXPENSES. DUE TO GOT REVISED TO . THIS AMOUNT RECEIVED BY THE ASSESSEE WAS ADDED AS INCOME BY THE 3 TO PARA 6 OF HIS ORDER, HELD AS AR RECEIPTS WERE ALSO INVOLVED IN APPELLANTS OWN 08. THE MATTER HAS BEEN DECIDED IN ITA NO. 387 & 04] ITA NO. 2139/KOL/2013 [A.Y. 2004 -05], ITA 2141/KOL/2013 [A.YS 2006 -07 & 08]. THE HONBLE KOLKATA ITAT HAS CONSIDERED ALL THE CONTENTION OF THE APPELLANT AND DECIDED THE ISSUE IN FAVOUR OF THE APPELLANT. THE RELEVANT EXTRACT OF THE NATURE OF SERVICES TO BE RENDERED BY THE ASSESSEE TO TIL. A PERUSAL OF THE CLAUSES OF AGREEMENT DATED 2.8.2000 BETWEEN THE ASSESSEE AND TIL CLEARLY SHOWS THAT THEY ARE PURELY IN THE NATURE OF ADVISORY SERVICES. NOTHING IS MADE AVAILABLE TO TIL BY THE ASSES SEE. AS TO WHETHER OR NOT GIVING ADVISORY SERVICES CAN BE CONSIDERED TO BE MAKING AVAILABLE INCLUDED SERVICES, EXAMPLE NO. 7 GIVEN IN THE MOU BETWEEN INDIA AND USA ON THE DTAA THROWS SOME MORE LIGHT ON THE UNDERSTANDING OF THE USA ON THE SUBJECT. THIS EXAMPLE IS AS FOLLOWS 'FACTS : THE INDIA VEGETABLE OIL MANUFACTURING FIRM HAS MASTERED THE SCIENCE OF PRODUCING CHOLESTEROL FREE OIL AND WISHES TO MARKET THIS PRODUCT WORLDWIDE. IT HIRES AN AMERICAN MARKETING CONSULTANCY FIRM TO DO COMPUTER SIMULATION OF THE WORLD MARKET FOR SUCH OIL AND TO ADVISE IT ON MARKETING STRATEGIES. ARE THE FEES PAID TO THE US ANALYSIS : THE FEES WOULD NOT BE FOR INCLUDED SERVICES. THE AMERICAN COMPANY IS PROVIDING A CO SUBSTANTIAL TECHNICAL SKILL AND EXPERTISE. IT IS, HOWEVER, MAKING AVAILABLE TO THE INDIAN COMPANY ANY TECHNICAL EXPERIENCE, KNOWLEDGE OR SKILL ETC. NOR IS IT TRANSFERRING A TECHNICAL PLAN OR DESIGN. WHAT IS TRANSFERRED T COMMERCIAL INFORMATION. THE FACT THAT TECHNICAL SKILLS WERE REQUIRED BY THE PERFORMER OF THE SERVICE IN ORDER TO PERFORM THE COMMERCIAL INFORMATION DOES NOT MAKE THE SERVICE A TECHNICAL SERVICE WITHIN ME ANING OF PARA (4)(B).' THIS EXAMPLE, SET OUT IN THE MOU BETWEEN THE INDIAN AND US GOVERNMENTS, ALSO MAKES IT CLEAR THAT CONSIDERATION FOR ADVISORY SERVICES RENDERED CANNOT BE TREATED AS FEES FOR INCLUDED SERVICES UNDER ARTICLE 12(4)(B). 20. FOR THE REASO INDEED ERRED IN HOLDING THAT THE MONIES RECEIVED BY THE ASSESSEE FROM TIL CONSTITUTE 'FEES FOR INCLUDED SERVICES' WITHIN THE MEANING OF THE INDIA- US TREATY, AND ARE ACCORDINGLY LIABLE TO BE TAXED IN INDIA. SINCE, THE ASSESSEE DOES NOT HAVE ANY PERMANENT ESTABLISHMENT IN INDIA, THE INCOMES SO ARISING TO THEM IN INDIA CANNOT BE TAXED UNDER EITHER. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED ADDITIONS. 21. THE LEARNED COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT AS AGAINST THE RULING OF THE AAR IN THE CASE OF TIL (SUPRA), THE A PETITION BEFORE THE HON'BLE CALCUTTA HIGH COURT IN WP 13932 (W) OF 2005 IN M/S TIMKEN INDIA LIMITED AND OTHERS VS.DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE COURT BY ITS JUDGEMENT DATED 115A OF THE ACT, PROVIDE FOR A GROSS BASIS FOR TAXATION OF SUCH FTS IN THE HANDS OF THE ASSESSEE, BEING A NON 20 PER CENT OF SUCH FEES. A SIMILAR PRESUMPTIVE BASIS OF TAXATION ON GROSS BASIS IS CONTAINED IN SEC.44AC THE CASE OF UNION OF INDIA VS. A. SANYASI RAO & ORS IN CASE OF PRESUMPTIVE BASIS OF TAXATION AN OPTION FOR COMPUTATION OF PROFITS UNDER SS. 28 TO 43C BE READ INTO THE PROVISION IS SO READ, THEN IF IT IS FOUND THAT THERE WAS NO ELEMENT OF MARK UP IN THE CHARGES PAID BY TIL TO THE ASSESSEE, THERE WOULD BE NO INCOME AND THERE WOULD BE NO INCOME CHARGEABLE TO TAX IN THE HANDS OF ABOVE SUBMISSION, THE LEARNED DR'S PLEA WAS THAT THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT HAS NOT ATTAINED FINALITY AND FURTHER NO SUCH EXAMINATION REGARDING ABSENCE OF MARK UP ON THE CHARGES LEVIED BY THE ASSESSEE ON TIL HAS BE THE VIEW THAT THIS PLEA OF THE AR IS ONLY ACADEMIC, IN VIEW OF OUR CONCLUSION IN PARAGRAPH 20 THAT THE RECEIPT IN QUESTION IS NOT FTS AND CANNOT BE CHARGED TO TAX IN THE HANDS OF THE ASSESSEE. NEVERTHELES WOULD BE JUST AND APPROPRIATE TO DIRECT THE AO TO EXAMINE THE CLAIM OF THE ASSESSEE IN THIS REGARD AND IF THE CLAIM OF THE ASSESSEE IS FOUND TO BE CORRECT, 3 M/S. THE TIMKEN COMPANY ANALYSIS : THE FEES WOULD NOT BE FOR INCLUDED SERVICES. THE AMERICAN COMPANY IS PROVIDING A CO NSULTANCY WHICH INVOLVES THE USE OF SUBSTANTIAL TECHNICAL SKILL AND EXPERTISE. IT IS, HOWEVER, MAKING AVAILABLE TO THE INDIAN COMPANY ANY TECHNICAL EXPERIENCE, KNOWLEDGE OR SKILL ETC. NOR IS IT TRANSFERRING A TECHNICAL PLAN OR DESIGN. WHAT IS TRANSFERRED T O THE INDIAN COMPANY THROUGH THE SERVICE CONTRACT IS COMMERCIAL INFORMATION. THE FACT THAT TECHNICAL SKILLS WERE REQUIRED BY THE PERFORMER OF THE SERVICE IN ORDER TO PERFORM THE COMMERCIAL INFORMATION DOES NOT MAKE THE SERVICE A TECHNICAL SERVICE WITHIN ANING OF PARA (4)(B).' THIS EXAMPLE, SET OUT IN THE MOU BETWEEN THE INDIAN AND US GOVERNMENTS, ALSO MAKES IT CLEAR THAT CONSIDERATION FOR ADVISORY SERVICES RENDERED CANNOT BE TREATED AS FEES FOR INCLUDED SERVICES UNDER ARTICLE 12(4)(B). 20. FOR THE REASO NS SET OUT ABOVE, WE ARE OF THE VIEW THAT LEARNED CIT(A) INDEED ERRED IN HOLDING THAT THE MONIES RECEIVED BY THE ASSESSEE FROM TIL CONSTITUTE 'FEES FOR INCLUDED SERVICES' WITHIN THE MEANING OF ARTICLE 12(4 US TREATY, AND ARE ACCORDINGLY LIABLE TO BE TAXED IN INDIA. SINCE, THE ASSESSEE DOES NOT HAVE ANY PERMANENT ESTABLISHMENT IN INDIA, THE INCOMES SO ARISING TO THEM IN INDIA CANNOT BE TAXED UNDER ARTICLE 7 AS 'BUSINESS PROFITS' EITHER. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED 21. THE LEARNED COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT AS AGAINST THE RULING OF THE AAR IN THE CASE OF TIL (SUPRA), THE A SSESSEE FILED A WRIT PETITION BEFORE THE HON'BLE CALCUTTA HIGH COURT IN WP 13932 (W) OF 2005 IN M/S TIMKEN INDIA LIMITED AND OTHERS VS.DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 8, KOLKATA AND OTHERS. THE HON'BLE CALCUTTA HIGH COURT BY ITS JUDGEMENT DATED 28.3.2016 WAS PLEASED TO HOLD THAT OF THE ACT, PROVIDE FOR A GROSS BASIS FOR TAXATION OF SUCH FTS IN THE HANDS OF THE ASSESSEE, BEING A NON - RESIDENT CORPORATE ASSESSEE, AT THE RATE OF 20 PER CENT OF SUCH FEES. A SIMILAR PRESUMPTIVE BASIS OF TAXATION ON GROSS BASIS IS CONTAINED IN SEC.44AC OF THE ACT AND THE HON'BLE SUPREME COURT IN UNION OF INDIA VS. A. SANYASI RAO & ORS . 219 ITR 330 (SC) HELD THAT IN CASE OF PRESUMPTIVE BASIS OF TAXATION AN OPTION FOR COMPUTATION OF PROFITS 43C OF THE ACT SHOULD BE READ IN S. 44D . SIMILAR OPTION SHOULD BE READ INTO THE PROVISION S OF SEC.44D OF THE ACT R/W SEC.115A OF THE ACT. IF IT IS SO READ, THEN IF IT IS FOUND THAT THERE WAS NO ELEMENT OF MARK UP IN THE CHARGES PAID BY TIL TO THE ASSESSEE, THERE WOULD BE NO INCOME AND THERE WOULD BE NO INCOME CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE. ON THE ABOVE SUBMISSION, THE LEARNED DR'S PLEA WAS THAT THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT HAS NOT ATTAINED FINALITY AND FURTHER NO SUCH EXAMINATION REGARDING ABSENCE OF MARK UP ON THE CHARGES LEVIED BY THE ASSESSEE ON TIL HAS BE EN UNDERTAKEN BY THE REVENUE AUTHORITIES. WE ARE OF THE VIEW THAT THIS PLEA OF THE AR IS ONLY ACADEMIC, IN VIEW OF OUR CONCLUSION IN PARAGRAPH 20 THAT THE RECEIPT IN QUESTION IS NOT FTS AND CANNOT BE CHARGED TO TAX IN THE HANDS OF THE ASSESSEE. NEVERTHELES S, WE ARE OF THE VIEW THAT IT WOULD BE JUST AND APPROPRIATE TO DIRECT THE AO TO EXAMINE THE CLAIM OF THE ASSESSEE IN THIS REGARD AND IF THE CLAIM OF THE ASSESSEE IS FOUND TO BE CORRECT, ITA NO. 1274/KOL/2018 ASSESSMENT YEAR: 2008-09 ITA NO. 1275/KOL/2018 ASSESSMENT YEAR: 2009-10 ITA NO. 1276/KOL/2018 ASSESSMENT YEAR: 2010-11 ITA NO. 1277/KOL/2018 ASSESSMENT YEAR: 2011-12 M/S. THE TIMKEN COMPANY ANALYSIS : THE FEES WOULD NOT BE FOR INCLUDED SERVICES. THE AMERICAN NSULTANCY WHICH INVOLVES THE USE OF SUBSTANTIAL TECHNICAL SKILL AND EXPERTISE. IT IS, HOWEVER, MAKING AVAILABLE TO THE INDIAN COMPANY ANY TECHNICAL EXPERIENCE, KNOWLEDGE OR SKILL ETC. NOR IS IT TRANSFERRING A TECHNICAL PLAN OR DESIGN. WHAT IS O THE INDIAN COMPANY THROUGH THE SERVICE CONTRACT IS COMMERCIAL INFORMATION. THE FACT THAT TECHNICAL SKILLS WERE REQUIRED BY THE PERFORMER OF THE SERVICE IN ORDER TO PERFORM THE COMMERCIAL INFORMATION DOES NOT MAKE THE SERVICE A TECHNICAL SERVICE WITHIN THIS EXAMPLE, SET OUT IN THE MOU BETWEEN THE INDIAN AND US GOVERNMENTS, ALSO MAKES IT CLEAR THAT CONSIDERATION FOR ADVISORY SERVICES RENDERED CANNOT NS SET OUT ABOVE, WE ARE OF THE VIEW THAT LEARNED CIT(A) INDEED ERRED IN HOLDING THAT THE MONIES RECEIVED BY THE ASSESSEE FROM TIL ARTICLE 12(4 ) OF US TREATY, AND ARE ACCORDINGLY LIABLE TO BE TAXED IN INDIA. SINCE, THE ASSESSEE DOES NOT HAVE ANY PERMANENT ESTABLISHMENT IN INDIA, THE INCOMES SO AS 'BUSINESS PROFITS' EITHER. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED 21. THE LEARNED COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT AS AGAINST SSESSEE FILED A WRIT PETITION BEFORE THE HON'BLE CALCUTTA HIGH COURT IN WP 13932 (W) OF 2005 IN M/S TIMKEN INDIA LIMITED AND OTHERS VS.DEPUTY COMMISSIONER OF 8, KOLKATA AND OTHERS. THE HON'BLE CALCUTTA HIGH 28.3.2016 WAS PLEASED TO HOLD THAT S. 44D R/W S. OF THE ACT, PROVIDE FOR A GROSS BASIS FOR TAXATION OF SUCH FTS IN THE RESIDENT CORPORATE ASSESSEE, AT THE RATE OF 20 PER CENT OF SUCH FEES. A SIMILAR PRESUMPTIVE BASIS OF TAXATION ON GROSS OF THE ACT AND THE HON'BLE SUPREME COURT IN . 219 ITR 330 (SC) HELD THAT IN CASE OF PRESUMPTIVE BASIS OF TAXATION AN OPTION FOR COMPUTATION OF PROFITS . SIMILAR OPTION SHOULD S OF SEC.44D OF THE ACT R/W SEC.115A OF THE ACT. IF IT IS SO READ, THEN IF IT IS FOUND THAT THERE WAS NO ELEMENT OF MARK UP IN THE CHARGES PAID BY TIL TO THE ASSESSEE, THERE WOULD BE NO INCOME AND THERE THE ASSESSEE. ON THE ABOVE SUBMISSION, THE LEARNED DR'S PLEA WAS THAT THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT HAS NOT ATTAINED FINALITY AND FURTHER NO SUCH EXAMINATION REGARDING ABSENCE OF MARK UP ON THE CHARGES LEVIED BY THE EN UNDERTAKEN BY THE REVENUE AUTHORITIES. WE ARE OF THE VIEW THAT THIS PLEA OF THE AR IS ONLY ACADEMIC, IN VIEW OF OUR CONCLUSION IN PARAGRAPH 20 THAT THE RECEIPT IN QUESTION IS NOT FTS AND CANNOT BE CHARGED S, WE ARE OF THE VIEW THAT IT WOULD BE JUST AND APPROPRIATE TO DIRECT THE AO TO EXAMINE THE CLAIM OF THE ASSESSEE IN THIS REGARD AND IF THE CLAIM OF THE ASSESSEE IS FOUND TO BE CORRECT, THEN THE RECEIPT IN QUESTION CANNOT BE TAXED AS FTS. WE HOLD AND DIREC ACCORDINGLY. THUS THE RELEVANT GROUNDS OF CROSS OBJECTIONS BY THE ASSESSEE ARE ALLOWED. 4. THUS, THE HONBLE KOLKATA ITAT HAS HELD THAT THE AGREEMENT BETWEEN THE APPELLANT AND TIL WAS PURELY ADVISORY SERVICES AND SUCH ADVISORY SERVICES RENDERED CANNOT BE TREATED AS FEES FOR INCLUDED SERVICES UNDER ARTICLE 12(4)(B) SINCE THERE IS NO MAKE AVAILABLE OF TECHNOLOGY. 5. I FIND THAT THE HOME OFFICE RECEIPTS DURING THE YEAR UNDER CONSIDERATION ARE PURSUANT TO THE SAME AGREEMENT BETWEEN THE APPELLANT AND TIL WHICH CONSIDERED BY THE HONBLE ITAT WHILE ADJUDICATING THE APPEALS FOR A.YS 2002 2007-08. 6. UNDER THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE ITAT IN APPELLANTS OWN CASE FOR AY 2002 29 NOV 2017, THE ADDITION ON ACCOUNT OF HOME OFFICE ALLOCATION IS ARE ADJUDICATED IN FAVOUR OF THE APPELLANT 5.2. AS THE LD. CIT(A) FOLLOWED THE DECISION OF IN THE ASSESSEES OWN CASE ON THE VERY SAME FACTS GROUND OF THE REVENUE FOR ALL THE ASSESSMENT YEARS. 6. 2) TAXABILITY OF CHARGE BACK OF RECEIPTS: 6.1. THE ASSESSEE HAD RECEIVED A FROM TIL/TIMKEN ENGINEERING AND RESEARCH INDIA PRIVATE LIMITED (TERI). THESE RECEIPTS WERE REIMBURSEMENTS OF PAYMENTS MADE BY THE ASSESSEE TO THIRD PARTIES TOWARDS, PROVISION OF VARIOUS SERVICES TO TERI, T THAT THESE REIMBURSEMENTS ARE NOT TAXABLE. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE AMOUNT IN QUESTION, IS TAXABLE UNDER ARTICLE 12 OF THE DTAA AS FEES FOR TECHNICAL SERVICES. THE LD. CIT( A) AT PARA 3 TO 6 PAGE 3. IT IS OBSERVED THAT THE SIMILAR RECEIPTS WERE ALSO INVOLVED IN APPELLANTS OWN CASE FOR AY 2002- 03 TO AY 2007 JURISDICTIONAL ITAT. THE HONBLE KOLKATA ITAT OF THE APPELLANT AND DECIDED THE ISSUE IN FAVOUR OF THE APPELLANT. THE RELEVANT EXTRACT OF THE RULING IS REPRODUCED BELOW: 31. WE HAVE CONSIDERED THE SUBMISSION OF THE LEARNED DR AND ARE OF THE VIEW THAT THERE IS NO DETAILS IN ANNEXURE 4 M/S. THE TIMKEN COMPANY THEN THE RECEIPT IN QUESTION CANNOT BE TAXED AS FTS. WE HOLD AND DIREC ACCORDINGLY. THUS THE RELEVANT GROUNDS OF CROSS OBJECTIONS BY THE ASSESSEE THUS, THE HONBLE KOLKATA ITAT HAS HELD THAT THE AGREEMENT BETWEEN THE APPELLANT AND TIL WAS PURELY ADVISORY SERVICES AND SUCH ADVISORY SERVICES RENDERED CANNOT BE TREATED AS FEES FOR INCLUDED SERVICES UNDER ARTICLE 12(4)(B) SINCE THERE IS NO MAKE AVAILABLE I FIND THAT THE HOME OFFICE RECEIPTS DURING THE YEAR UNDER CONSIDERATION ARE PURSUANT TO THE SAME AGREEMENT BETWEEN THE APPELLANT AND TIL WHICH CONSIDERED BY THE HONBLE ITAT WHILE ADJUDICATING THE APPEALS FOR A.YS 2002 UNDER THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE ITAT IN APPELLANTS OWN CASE FOR AY 2002 -03 TO AY 2007-08 IN ITA NO. 387 & 398/KOL/2010 DATED 29 NOV 2017, THE ADDITION ON ACCOUNT OF HOME OFFICE ALLOCATION IS DELETED. ARE ADJUDICATED IN FAVOUR OF THE APPELLANT -COMPANY. FOLLOWED THE DECISION OF THE CO- ORDINATE BENCH OF THE TRIBUNAL ON THE VERY SAME FACTS , WE UPHOLD THE SAME AND DISMISS THIS GROUND OF THE REVENUE FOR ALL THE ASSESSMENT YEARS. 2) TAXABILITY OF CHARGE BACK OF RECEIPTS: - THE ASSESSEE HAD RECEIVED A N AMOUNT OF RS.4,63,63,097/- ON ACCOUNT OF CHARGE FROM TIL/TIMKEN ENGINEERING AND RESEARCH INDIA PRIVATE LIMITED (TERI). THESE RECEIPTS WERE REIMBURSEMENTS OF PAYMENTS MADE BY THE ASSESSEE TO THIRD PARTIES PROVISION OF VARIOUS SERVICES TO TERI, T IMPL AND TIL. THE ASSESSEE CLAIMED THAT THESE REIMBURSEMENTS ARE NOT TAXABLE. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE AMOUNT IN QUESTION, IS TAXABLE UNDER ARTICLE 12 OF THE DTAA BETWEEN AS FEES FOR TECHNICAL SERVICES. A) AT PARA 3 TO 6 PAGE 49 AND 50 HELD AS FOLLOWS:- IT IS OBSERVED THAT THE SIMILAR RECEIPTS WERE ALSO INVOLVED IN APPELLANTS OWN 03 TO AY 2007 -08 RECENTLY ON 29.11.2017 ADJUDICATED BY THE JURISDICTIONAL ITAT. THE HONBLE KOLKATA ITAT -C- HAS CONSIDERED ALL THE CONTENTIONS OF THE APPELLANT AND DECIDED THE ISSUE IN FAVOUR OF THE APPELLANT. THE RELEVANT EXTRACT RULING IS REPRODUCED BELOW: - 31. WE HAVE CONSIDERED THE SUBMISSION OF THE LEARNED DR AND ARE OF THE VIEW THAT THERE IS NO MERIT IN THIS APPEAL BY THE REVENUE. A PERUSAL OF THE DETAILS IN ANNEXURE - 3 & 4 TO THIS ORDER WOULD GO TO SHOW THAT IT WAS ITA NO. 1274/KOL/2018 ASSESSMENT YEAR: 2008-09 ITA NO. 1275/KOL/2018 ASSESSMENT YEAR: 2009-10 ITA NO. 1276/KOL/2018 ASSESSMENT YEAR: 2010-11 ITA NO. 1277/KOL/2018 ASSESSMENT YEAR: 2011-12 M/S. THE TIMKEN COMPANY THEN THE RECEIPT IN QUESTION CANNOT BE TAXED AS FTS. WE HOLD AND DIREC T ACCORDINGLY. THUS THE RELEVANT GROUNDS OF CROSS OBJECTIONS BY THE ASSESSEE THUS, THE HONBLE KOLKATA ITAT HAS HELD THAT THE AGREEMENT BETWEEN THE APPELLANT AND TIL WAS PURELY ADVISORY SERVICES AND SUCH ADVISORY SERVICES RENDERED CANNOT BE TREATED AS FEES FOR INCLUDED SERVICES UNDER ARTICLE 12(4)(B) SINCE THERE IS NO MAKE AVAILABLE I FIND THAT THE HOME OFFICE RECEIPTS DURING THE YEAR UNDER CONSIDERATION ARE PURSUANT TO THE SAME AGREEMENT BETWEEN THE APPELLANT AND TIL WHICH HAS ALREADY BEEN CONSIDERED BY THE HONBLE ITAT WHILE ADJUDICATING THE APPEALS FOR A.YS 2002 -03 TO AY UNDER THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE ITAT IN 387 & 398/KOL/2010 DATED DELETED. THESE GROUNDS ORDINATE BENCH OF THE TRIBUNAL , WE UPHOLD THE SAME AND DISMISS THIS ON ACCOUNT OF CHARGE S FROM TIL/TIMKEN ENGINEERING AND RESEARCH INDIA PRIVATE LIMITED (TERI). THESE RECEIPTS WERE REIMBURSEMENTS OF PAYMENTS MADE BY THE ASSESSEE TO THIRD PARTIES IMPL AND TIL. THE ASSESSEE CLAIMED THAT THESE REIMBURSEMENTS ARE NOT TAXABLE. THE ASSESSING OFFICER WAS OF THE VIEW THAT BETWEEN INDIA AND USA IT IS OBSERVED THAT THE SIMILAR RECEIPTS WERE ALSO INVOLVED IN APPELLANTS OWN RECENTLY ON 29.11.2017 ADJUDICATED BY THE HAS CONSIDERED ALL THE CONTENTIONS OF THE APPELLANT AND DECIDED THE ISSUE IN FAVOUR OF THE APPELLANT. THE RELEVANT EXTRACT 31. WE HAVE CONSIDERED THE SUBMISSION OF THE LEARNED DR AND ARE OF THE MERIT IN THIS APPEAL BY THE REVENUE. A PERUSAL OF THE 3 & 4 TO THIS ORDER WOULD GO TO SHOW THAT IT WAS THIRD PARTIES WHO HAD RENDERED SERVICES TO TIL. THE ACTUALS BILLED BY THE THIRD PARTIES WERE PAID BY THE ASSESSEE IN USA AND WERE LAT REIMBURSED BY TIL TO THE ASSESSEE IN INDIA. WE ARE OF THE VIEW THAT THERE IS NO BASIS FOR THE AO TO CONCLUDE THAT THE PAYMENT OF REIMBURSEMENTS WERE IN THE NATURE OF FTS. AS RIGHTLY CONTENDED ON BEHALF OF THE ASSESSEE, THE ASSESSEE NOT THE ULTIMATE B RENDER ANY SERVICE TO TIL. THERE IS NO BASIS ON WHICH THE AO CAME TO THE CONCLUSION THAT THE SUM IN QUESTION WAS FTS IN THE HANDS OF THE ASSESSEE. EVEN ASSUMING THAT THE SUM IN QUESTION IS IN THE NATURE OF FTS, ARTICLE 12(4)(B) SERVICES RENDERED BY THE ASSESSEE MAKES AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE OR SKILL THAT THE SUM IN QUESTION CAN BE TAXED IN THE HANDS OF THE ASSESSEE. THERE IS NO EVIDENCE BROUGHT ON RECORD TO S TECHNICAL SKILL, KNOWLEDGE ETC., WERE MADE AVAILABLE TO TIL BY THE ASSESSEE. AT BEST THE SUM IN QUESTION IS TAXABLE ONLY IN THE HANDS OF THE PERSONS WHO PROVIDED THE SERVICES TO TIL AND NOT IN THE HANDS OF THE ASSESSEE. THE TRANSFER PRICING OF REIMBURSEMENTS WHILE EXAMINING THE INTERNATIONAL TRANSACTION OF REIMBURSEMENT BY TIL TO THE ASSESSEE U/S.92 OF THE ACT AND FOUND THAT THE ASSESSEE MADE NO PROFIT ON SUCH REIMBURSEMENTS AND THAT THE REIMBURSEMENTS WERE AT AR SUFFICIENT TO CONCLUDE THAT THE ORDER OF THE CIT(A) ON THIS ISSUE HAS TO BE UPHELD. WE NEED NOT GO INTO THE QUESTION WHETHER ASSESSMENT ORDER OF THE AO IN AY 2004 FACTUALLY WE HAVE COME TO THE CONCLUSION THAT THE SUMS RECEIVED BY THE ASSESSEE IN QUESTION ARE PURE REIMBURSEMENTS ON ACTUAL WITH NO MARK UP. WE THEREFORE DISMISS THE APPEALS OF THE REVENUE FOR AY 2002 2003-04. 4. THE HONBLE KOLKATA ITAT HAS THUS QUESTION ARE PURE REIMBURSEMENTS ON ACTUAL WITH NO MARK UP AND THE APPELLANT IS NOT THE ULTIMATE BENEFICIARY OF THE SUM IN QUESTION. THE APPELLANT HAS NOT RENDERED ANY SERVICE TO TIL AND THERE IS NO BASIS ON HANDS OF THE APPELLANT. FURTHER, EVEN ASSUMING IT IS FTS, THE SERVICES RENDERED DOES NOT MAKE AVAILABLE ANY TECHNICAL SKILL, KNOWLEDGE, ETC. TO THE SERVICE RECIPIENT. 5. THE CHARGEBACK RECEIPTS DURI RECEIPTS AS ADJUDICATED BY THE HONBLE TRIBUNAL IN AY 2002 ABOVE OBSERVATIONS OF THE HONBLE ITAT ARE APPLICABLE TO THE AY 2008 CONSIDERATION. 6. UNDER THESE CIRCUMSTA APPELLANTS OWN CASE FOR AY 2002 2017, THE ADDITION ON ACCOUNT OF CHARGEBACK RECEIPTS IS 5 M/S. THE TIMKEN COMPANY THIRD PARTIES WHO HAD RENDERED SERVICES TO TIL. THE ACTUALS BILLED BY THE THIRD PARTIES WERE PAID BY THE ASSESSEE IN USA AND WERE LAT REIMBURSED BY TIL TO THE ASSESSEE IN INDIA. WE ARE OF THE VIEW THAT THERE IS NO BASIS FOR THE AO TO CONCLUDE THAT THE PAYMENT OF REIMBURSEMENTS WERE IN THE NATURE OF FTS. AS RIGHTLY CONTENDED ON BEHALF OF THE ASSESSEE, THE ASSESSEE NOT THE ULTIMATE B ENEFICIARY OF THE SUM IN QUESTION NOR DID IT RENDER ANY SERVICE TO TIL. THERE IS NO BASIS ON WHICH THE AO CAME TO THE CONCLUSION THAT THE SUM IN QUESTION WAS FTS IN THE HANDS OF THE ASSESSEE. EVEN ASSUMING THAT THE SUM IN QUESTION IS IN THE NATURE OF FTS, ARTICLE 12(4)(B) OF THE DTAA IT IS ONLY WHEN TECHNICAL OR CONSULTANCY SERVICES RENDERED BY THE ASSESSEE MAKES AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE OR SKILL THAT THE SUM IN QUESTION CAN BE TAXED IN THE HANDS OF THE ASSESSEE. THERE IS NO EVIDENCE BROUGHT ON RECORD TO S HOW THAT THE TECHNICAL SKILL, KNOWLEDGE ETC., WERE MADE AVAILABLE TO TIL BY THE ASSESSEE. AT BEST THE SUM IN QUESTION IS TAXABLE ONLY IN THE HANDS OF THE PERSONS WHO PROVIDED THE SERVICES TO TIL AND NOT IN THE HANDS OF THE ASSESSEE. THE TRANSFER PRICING OF FICER SCRUTINIZED THE DETAILS OF REIMBURSEMENTS WHILE EXAMINING THE INTERNATIONAL TRANSACTION OF REIMBURSEMENT BY TIL TO THE ASSESSEE U/S.92 OF THE ACT AND FOUND THAT THE ASSESSEE MADE NO PROFIT ON SUCH REIMBURSEMENTS AND THAT THE REIMBURSEMENTS WERE AT AR M'S LENGTH. ALL THESE CIRCUMSTANCES ARE SUFFICIENT TO CONCLUDE THAT THE ORDER OF THE CIT(A) ON THIS ISSUE HAS TO BE UPHELD. WE NEED NOT GO INTO THE QUESTION WHETHER ASSESSMENT ORDER OF THE AO IN AY 2004 - 05 HAD ANY INFLUENCE ON THE DECISION OF THE CIT(A) AS FACTUALLY WE HAVE COME TO THE CONCLUSION THAT THE SUMS RECEIVED BY THE ASSESSEE IN QUESTION ARE PURE REIMBURSEMENTS ON ACTUAL WITH NO MARK UP. WE THEREFORE DISMISS THE APPEALS OF THE REVENUE FOR AY 2002 THE HONBLE KOLKATA ITAT HAS THUS HELD THAT THE SUMS RECEIVED BY THE APPELLANT IN QUESTION ARE PURE REIMBURSEMENTS ON ACTUAL WITH NO MARK UP AND THE APPELLANT IS NOT THE ULTIMATE BENEFICIARY OF THE SUM IN QUESTION. THE APPELLANT HAS NOT RENDERED ANY SERVICE TO TIL AND THERE IS NO BASIS ON WHICH THE SUM IN QUESTION CAN BE CONSIDERED AS FTS IN THE HANDS OF THE APPELLANT. FURTHER, EVEN ASSUMING IT IS FTS, THE SERVICES RENDERED DOES NOT MAKE AVAILABLE ANY TECHNICAL SKILL, KNOWLEDGE, ETC. TO THE SERVICE RECIPIENT. THE CHARGEBACK RECEIPTS DURI NG THE YEAR UNDER CONSIDERATION ARE SIMILAR TO THE RECEIPTS AS ADJUDICATED BY THE HONBLE TRIBUNAL IN AY 2002 - 03 TO AY 2007 ABOVE OBSERVATIONS OF THE HONBLE ITAT ARE APPLICABLE TO THE AY 2008 THESE CIRCUMSTA NCES, RESPECT FULLY FOLLOWING THE DECISION OF HONBLE ITAT IN APPELLANTS OWN CASE FOR AY 2002 -03 TO AY 2007- 08 IN ITA NO. 387/KOL/2010 DATED 29 NOV 2017, THE ADDITION ON ACCOUNT OF CHARGEBACK RECEIPTS IS DELETED. ITA NO. 1274/KOL/2018 ASSESSMENT YEAR: 2008-09 ITA NO. 1275/KOL/2018 ASSESSMENT YEAR: 2009-10 ITA NO. 1276/KOL/2018 ASSESSMENT YEAR: 2010-11 ITA NO. 1277/KOL/2018 ASSESSMENT YEAR: 2011-12 M/S. THE TIMKEN COMPANY THIRD PARTIES WHO HAD RENDERED SERVICES TO TIL. THE ACTUALS BILLED BY THE THIRD PARTIES WERE PAID BY THE ASSESSEE IN USA AND WERE LAT ER ON REIMBURSED BY TIL TO THE ASSESSEE IN INDIA. WE ARE OF THE VIEW THAT THERE IS NO BASIS FOR THE AO TO CONCLUDE THAT THE PAYMENT OF REIMBURSEMENTS WERE IN THE NATURE OF FTS. AS RIGHTLY CONTENDED ON BEHALF OF THE ASSESSEE, ENEFICIARY OF THE SUM IN QUESTION NOR DID IT RENDER ANY SERVICE TO TIL. THERE IS NO BASIS ON WHICH THE AO CAME TO THE CONCLUSION THAT THE SUM IN QUESTION WAS FTS IN THE HANDS OF THE ASSESSEE. EVEN ASSUMING THAT THE SUM IN QUESTION IS IN THE NATURE OF FTS, UNDER OF THE DTAA IT IS ONLY WHEN TECHNICAL OR CONSULTANCY SERVICES RENDERED BY THE ASSESSEE MAKES AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE OR SKILL THAT THE SUM IN QUESTION CAN BE TAXED IN THE HANDS OF HOW THAT THE TECHNICAL SKILL, KNOWLEDGE ETC., WERE MADE AVAILABLE TO TIL BY THE ASSESSEE. AT BEST THE SUM IN QUESTION IS TAXABLE ONLY IN THE HANDS OF THE PERSONS WHO PROVIDED THE SERVICES TO TIL AND NOT IN THE HANDS OF THE FICER SCRUTINIZED THE DETAILS OF REIMBURSEMENTS WHILE EXAMINING THE INTERNATIONAL TRANSACTION OF REIMBURSEMENT BY TIL TO THE ASSESSEE U/S.92 OF THE ACT AND FOUND THAT THE ASSESSEE MADE NO PROFIT ON SUCH REIMBURSEMENTS AND THAT THE M'S LENGTH. ALL THESE CIRCUMSTANCES ARE SUFFICIENT TO CONCLUDE THAT THE ORDER OF THE CIT(A) ON THIS ISSUE HAS TO BE UPHELD. WE NEED NOT GO INTO THE QUESTION WHETHER ASSESSMENT ORDER OF 05 HAD ANY INFLUENCE ON THE DECISION OF THE CIT(A) AS FACTUALLY WE HAVE COME TO THE CONCLUSION THAT THE SUMS RECEIVED BY THE ASSESSEE IN QUESTION ARE PURE REIMBURSEMENTS ON ACTUAL WITH NO MARK UP. WE THEREFORE DISMISS THE APPEALS OF THE REVENUE FOR AY 2002 -03 & HELD THAT THE SUMS RECEIVED BY THE APPELLANT IN QUESTION ARE PURE REIMBURSEMENTS ON ACTUAL WITH NO MARK UP AND THE APPELLANT IS NOT THE ULTIMATE BENEFICIARY OF THE SUM IN QUESTION. THE APPELLANT HAS NOT RENDERED ANY SERVICE TO WHICH THE SUM IN QUESTION CAN BE CONSIDERED AS FTS IN THE HANDS OF THE APPELLANT. FURTHER, EVEN ASSUMING IT IS FTS, THE SERVICES RENDERED DOES NOT MAKE AVAILABLE ANY TECHNICAL SKILL, KNOWLEDGE, ETC. TO THE SERVICE RECIPIENT. NG THE YEAR UNDER CONSIDERATION ARE SIMILAR TO THE 03 TO AY 2007 -08. HENCE, THE ABOVE OBSERVATIONS OF THE HONBLE ITAT ARE APPLICABLE TO THE AY 2008 -09 UNDER FULLY FOLLOWING THE DECISION OF HONBLE ITAT IN 08 IN ITA NO. 387/KOL/2010 DATED 29 NOV 6.2. AS THE LD. CIT(A) HAS FOLLOWED THE DE CASE, ON THE VERY SAME ISSUE, WE SEE NO REASON TO INTERFERE IN THE SAME. HENCE, WE UPHOLD THE SAME AND DISMISS THIS GROUND OF THE REVENUE FOR ALL THE ASSESSMENT YEARS. 7. IN THE RESULT, ALL THESE APPEALS OF THE KOLKATA, THE SD/- [S. S. GODARA] JUDICIAL MEMBER DATED : 19.02.2020 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. M/S. THE TIMKEN COMPANY C/O: PRICEWATERHOUSE COOPERS PVT. LTD. PLOT NO. 56 & 57 BLOCK-DN SECTOR-V SALT LAKE CITY KOLKATA 700 091 2. DEPUTY COMMISSIONER OF INCOME TAX (IT), CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6 M/S. THE TIMKEN COMPANY AS THE LD. CIT(A) HAS FOLLOWED THE DE CISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE, ON THE VERY SAME ISSUE, WE SEE NO REASON TO INTERFERE IN THE SAME. HENCE, WE UPHOLD THE SAME AND DISMISS THIS GROUND OF THE REVENUE FOR ALL THE ASSESSMENT YEARS. IN THE RESULT, ALL THESE APPEALS OF THE REVENUE ARE DISMISSED. KOLKATA, THE 19 TH DAY OF FEBRUARY, 2020 . [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER C/O: PRICEWATERHOUSE COOPERS PVT. LTD. DEPUTY COMMISSIONER OF INCOME TAX (IT), CIRCLE -2(1), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 1274/KOL/2018 ASSESSMENT YEAR: 2008-09 ITA NO. 1275/KOL/2018 ASSESSMENT YEAR: 2009-10 ITA NO. 1276/KOL/2018 ASSESSMENT YEAR: 2010-11 ITA NO. 1277/KOL/2018 ASSESSMENT YEAR: 2011-12 M/S. THE TIMKEN COMPANY CISION OF THE TRIBUNAL IN THE ASSESSEES OWN CASE, ON THE VERY SAME ISSUE, WE SEE NO REASON TO INTERFERE IN THE SAME. HENCE, WE UPHOLD THE SAME AND DISMISS THIS GROUND OF THE REVENUE FOR ALL THE ASSESSMENT YEARS. . SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES