MCKINSEY & COMPANY INC. SWITZERLAND, MUMBAI V. DCIT (IT) 3(2)(1), MUMBAI

ITA 853/MUM/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0474 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Next Hearing Date: 13-07-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 06-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Double taxation relief
• Section: 143(3); 234B; 260A; 90

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH L, MU MBAI BEFORE SHRI P.K. BANSAL, VICE-PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 853, 854, 856, 857, 858, 860, 861 & 862/MUM /2015 (ASSESSMENT YEAR- 2011-12) MCKINSEY & COMPANY, INC. SWITZERLAND, C/O S R B C & ASSOCIATES LLP, 14 TH FLOOR, THE RUBY SENAPATI BAPAT MARG, DADAR (W), MUMBAI-400028. PAN: AAACM7215Q VS. DCIT (IT)- 3 (2)(1), SCINDIA HOUSE, BALL ARD ESTATE, MUMBAI-400038. (APPELLANT) (RESPONDENT) ITA NO. 855/MUM/2015 (ASSESSMENT YEAR- 2010-11) MCKINSEY & COMPANY, INC. SWITZERLAND, C/O S R B C & ASSOCIATES LLP, 14 TH FLOOR, THE RUBY SENAPATI BAPAT MARG, DADAR (W), MUMBAI-400028. PAN: AAACM7215Q VS. DCIT (IT)- 3 (2)(1), SCINDIA HOUSE, BALLARD ESTATE, MUMBAI-400038. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PORUS KAKA SR ADVOCATE WITH SH. DIVESH CHAWLA ADVOCATE REVENUE BY : SHRI M.V. RAJGURU(SR. DR) DATE OF HEARING : 13.07.2017 DATE OF PRONOUNCEMENT : 01.08.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER BENCH, 1. THESE NINE APPEALS BY ASSESSEE U/S. 253 OF THE INCO ME-TAX ACT (THE ACT) ARE DIRECTED AGAINST THE SEPARATE ORDERS RELATING TO TH E ASSESSMENT YEARS (AY) 2010- ITAS NO.853 T O 858 & 860 TO 862/M/2015 MCKINSEY & CO MPANY, INC. SWITZERLAND 2 11 & AY 2011-12 . THE ITA NO. 853, 854, 856, 857, 858, 860, 861 & 862/MUM/2015 RELATES TO ASSESSMENT YEAR- 2011-12. I TA NO.855/MUM/2015 RELATES TO ASSESSMENT YEAR- 2010-11. 2. THE COMMON ISSUE RAISED IN ALL APPEAL RELATES TO TH E TAXABILITY OF BORROWED SERVICES CHARGES AND THE APPLICABILITY OF TREATY BE NEFIT UNDER INDIA US TAX TREATY. SINCE, THE GROUNDS OF APPEAL RAISED IN ALL APPEALS ARE IDENTICAL; THEREFORE, ALL THE APPEALS WERE CLUBBED TOGETHER, HEARD AND DECIDED BY CONSOLIDATED ORDER FOR AVOIDING CONFLICTING DECISION. FOR APPRECIATION OF FACT WE ARE REFERRING THE GROUNDS OF APPEAL IN ITA NO. 853/MUMBAI/2015. IN ITA NO. 85 3/MUM/2015, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, M CKINSEY & COMPANY, INC. SWITZERLAND (HEREINAFTER REFERRED TO AS THE 'APPELL ANT') CRAVES TO PREFER AN APPEAL AGAINST THE ORDER PASSED BY THE LEARNED DEPUTY COMM ISSIONER OF INCOME-TAX (INTERNATIONAL TAXATION) - 3(2)(1) (HEREINAFTER REF ERRED TO AS THE 'AO') UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 ('ACT') READ WITH SECTION 144C(13) OF THE ACT, ON THE FOLLOWING GROUNDS: 1. THE LEARNED AO/HON'BLE DISPUTE RESOLUTION PANEL ('DRP') HAS ERRED IN CONCLUDING THAT BORROWED SERVICE RENDERED BY THE AP PELLANT ARE IN THE NATURE OF 'FEES FOR INCLUDED SERVICES' UNDER ARTICLE 12 OF TH E INDIA-US DOUBLE TAXATION AVOIDANCE AGREEMENT ('INDIA-US TAX TREATY'). 2. THE LEARNED AO'S ORDER AND FINDING ON THE EVIDE NCE SUBMITTED IS CONTRARY TO THE DETAILS FILED BEFORE HIM AND ALSO THE HON'BLE D RP. 3. THE LEARNED AO / HON'BLE DRP HAS ERRED IN NOT F OLLOWING THE EARLIER DECISIONS PRONOUNCED BY THE HON 'BLE ITA T IN APPEL LANT'S OWN CASE / IN CASE OF GROUP COMPANIES OF THE APPELLANT WHEREIN IT HAS BEE N HELD THAT BORROWED SERVICE FEE RECEIVED IS NOT TAXABLE AS 'FEES FOR INCLUDED S ERVICES' UNDER ARTICLE 12 OF THE INDIA-US TAX TREATY. 4. THE LEARNED AO/ HON'BLE DRP HAS ERRED IN CONCLU DING THAT THE APPELLANT DOES NOT SATISFY THE TESTS AS LAID DOWN BY 'ARTICLE 24 -LIMITATION OF BENEFITS' OF THE INDIA-US TAX TREATY AND THUS, DENYING THE BENEF ITS OF THE INDIA-US TAX TREATY TO THE APPELLANT. 5. WITHOUT PREJUDICE TO APPELLANT'S PRIMARY CONTEN TION THAT THE RECEIPTS OF THE APPELLANT FROM BORROWED SERVICES ARE NOT TAXABLE IN INDIA UNDER THE PROVISIONS ITAS NO.853 T O 858 & 860 TO 862/M/2015 MCKINSEY & CO MPANY, INC. SWITZERLAND 3 OF THE INDIA-US TAX TREATY, THE LEARNED AO/ HON'BLE DRP HAS ERRED IN ESTIMATING THAT THE NET PROFIT OF THE APPELLANT IN RESPECT OF SUCH RECEIPTS AT THE RATE OF 35.52% OF THE TOTAL RECEIPTS, ON AN ADHOC B ASIS, AND TAXING THE SAME ACCORDINGLY UNDER THE PROVISIONS OF THE ACT. 6. WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED AO / HON'BLE DRP HAS F AILED TO APPRECIATE AND APPLY THE ORDER PASSED BY THE COMPETENT AUTHORITIES OF INDIA AND UNITED STATES OF AMERICA AS PER ARTICLE 27 OF THE INDIA-US TAX TR EATY IN THE CASE OF THE APPELLANT FOR PRIOR YEARS WHEREIN IT HAS BEEN HELD THAT INCOME FROM BORROWED SERVICES SHOULD NOT BE TAXABLE IN INDIA IN THE HAND S OF THE APPELLANT. THE APPELLANT PRAYS THAT THE PRINCIPLES UNDERLYING THE SAID ORDER OUGHT TO HAVE BEEN APPLIED AND PRAY ACCORDINGLY. 7. THE LEARNED AO HAS ERRED IN CHARGING INTEREST U NDER SECTION 234B AND SECTION 234C OF THE ACT. 8. THE LEARNED AO ERRONEOUSLY HELD THAT THE ASSESS EE WAS IN RECEIPT OF AN INCOME-TAX REFUND OF RS 1,820,930, WHILE THE APPELL ANT HAS NEVER RECEIVED ANY SUCH REFUND TILL DATE. 9. THE LEARNED AO HAS ERRED IN INITIATING PENALTY PROCEEDINGS UNDER SECTION 271(L)(C) OF THE ACT. 3. AT THE OUTSET OF THE HEARING, SHRI PORUS KAKA, LEAR NED SR COUNSEL APPEARING ON BEHALF OF THE ASSESSEE CONTENDED THAT THE ASSESSMEN T ORDER WAS PASSED BY ASSESSING OFFICER IN PURSUANCE OF THE DIRECTION OF DRP. THE D RP FOLLOWED ITS DIRECTION FOR THE ASSESSMENT YEAR 2009-10 WHILE PASSING THE DIREC TION FOR ASSESSMENT YEAR- 2010-11 & 2011-12. FOR ASSESSMENT YEAR 2000-10 THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL VIDE ITA NO. 7642 TO 7653 AND 7 654 TO 7661/ MUMBAI/2012. THE TRIBUNAL VIDE ORDER DATED THE 17 TH APRIL 2015 DECIDED ALL THE APPEALS IN FAVOUR OF ASSESSEE. THUS, IT WAS ARGUED THAT THE GROUNDS O F APPEALS RAISED IN ALL APPEALS ARE COVERED IN FAVOUR OF ASSESSEE AND AGAINST THE R EVENUE. IT WAS ARGUED THAT THE ASSESSEES ARE PART OF MCKINSEY GROUP, WHICH ARE EN GAGED IN PROVIDING STRATEGIC CONSULTANCY SERVICES TO THEIR CLIENTS ENTERED INTO AGREEMENT WITH GOVERNMENT OF INDIA FOR MUTUAL AGREEMENT PROCEDURE (MAP) UNDER TH E PROVISIONS OF SECTION 90 ITAS NO.853 T O 858 & 860 TO 862/M/2015 MCKINSEY & CO MPANY, INC. SWITZERLAND 4 OF INCOME-TAX ACT READ WITH ARTICLE 26 OF INDIA-USA DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA). IT WAS CONTENDED THAT THE TRIBUNA L IN ALL CASES HELD THAT, FIRSTLY, SUCH SERVICES DO NOT FALL WITHIN THE AMBIT OF FEES FOR TECHNICAL SERVICES (FTS) UNDER ARTICLE 12 OF INDIA-US DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA). IT WAS FURTHER CONTENDED THAT MOREOVER, THI S ISSUE HAS BEEN SETTLED UNDER THE MAP PROCEEDING SETTLED BETWEEN GOVERNMENT OF IN DIA AND THE ASSESSEES COMPANIES, WHICH MUST BE HONORED AND FOLLOWED BY TH E REVENUE AUTHORITY. THE LEARNED SENIOR COUNSEL INVITED OUR ATTENTION TO THE MAP AGREEMENT DATED 1 ST OCTOBER 2015 BETWEEN GOVERNMENT OF INDIA AND THE AS SESSEES COMPANY (PAGE 107 TO109 OF PAPER BOOK). ON THE OTHER HAND, THE LE ARNED DR APPEARING ON BEHALF OF REVENUE NOT DISPUTED THE FACTUAL POSITION NARRAT ED BY LEARNED COUNSEL FOR THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW. WE HAVE NOTICED THA T THOUGH THE ASSESSEE HAS RAISED AS MANY AS NINE GROUNDS OF APPEALS, HOWEVER AS PER OUR OPINION THERE ARE ONLY TWO SUBSTANTIAL GROUNDS OF APPEAL. ONE RELATED WITH THE FEE RELATED WITH FEES FOR INCLUDED SERVICES, IF TAXABLE IN INDIA OR NOT. THE SECOND ISSUE RELATES TO THE MUTUAL AGREEMENT PROCEEDINGS (MAP). REST OF THE GROUNDS OF APPEAL ARE ACADEMIC OR WOULD BECOME INFRUCTUOUS IF GROUNDS NO.1 AND 2 ARE DECIDED IN FAVOUR OF THE ASSESSEE. WE HAVE PERUSED THE ORDER IN ASSESSEES G ROUP CASES FOR AY 2009-10 IN ITA NO. 7646 TO 7653 AND 7654 TO 7661/MUMBAI 2012 DATED 17 TH APRIL 2015, FOR THE SAKE OF COMPLETENESS OF THE ORDER WE EXTRACTED THE RELEVANT PARA 3 TO 26 OF THE ORDER OF THE TRIBUNAL AS UNDER: ITAS NO.853 T O 858 & 860 TO 862/M/2015 MCKINSEY & CO MPANY, INC. SWITZERLAND 5 3. THE FACTS ARE, PERTAINING TO THE ABOVE ASSESSEE ARE, THE ASSESSEE IS A COMPANY INCORPORATED IN AND A TAX RESIDENT OF US AND IS ELI GIBLE TO CLAIM THE BENEFITS UNDER THE INDIA-US DTAA TAX TREATY TO THE EXTENT THEY ARE MORE BENEFICIAL. THE ASSESSEE IS A PART OF THE MCKINSEY GROUP (THE GROUP ) WHICH IS ENGAGED IN PROVIDING STRATEGIC CONSULTANCY SERVICES TO THEIR C LIENTS. MCKINSEY INDIA WAS SET UP TO PROVIDE SIMILAR SERVICES IN INDIA. 4. IN THE COURSE OF PERFORMING ITS WORK ON VARIOUS PROJECTS / ASSIGNMENTS IN INDIA, MCKINSEY INDIA PERIODICALLY REQUIRES ASSISTANCE FRO M OTHER COUNTRIES, WHICH IS RELEVANT IN THE CONTEXT OF A SPECIFIC CLIENT PROJEC T/ASSIGNMENT THAT IT IS EXECUTING. THE ASSESSEE ORDINARILY RENDERS SERVICES TO MCKINSE Y INDIA IN THE FOLLOWING AREAS: A) ADVICE ON MATTERS SUCH AS PREVAILING PRACTICES I N VARIOUS GEOGRAPHICAL AREAS, INDUSTRIES, ETC. AS MAY BE RELEVANT TO THE SPECIFIC CLIENT ASSIGNMENT; B) PROVISION OF INFORMATION/DATA AS MAY BE SPECIFIC ALLY REQUESTED BY MCKINSEY INDIA IN AREAS SUCH AS POPULATION, GDP, INFLATION, PRODUCTION CAPACITIES, REGULATIONS, POLICY FRAMEWORK, ETC, AND C) OTHER ADVISORY SUPPORT AS MAY BE REQUIRED BY MCK INSEY INDIA FOR THE PURPOSES OF EXECUTING THE CLIENT ASSIGNMENTS. 5. THE ABOVE SERVICES, HEREINAFTER REFERRED TO AS B ORROWED SERVICES, AS REQUESTED BY MCKINSEY INDIA MAY BE PROVIDED BY THE ASSESSEE B Y WAY OF EMAILS OR VERBALLY THROUGH THE TELEPHONE. 6. TO INDICATE THE NATURE OF SERVICES RENDERED, DUR ING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED SAMPLE COPIES O F DOCUMENTS EVIDENCING THE NATURE OF SERVICES PROVIDED BY THE ASSESSEE TO MCKI NSEY INDIA IN RELATION TO CERTAIN PROJECTS/CLIENT ASSIGNMENTS OF MCKINSEY IND IA, ALONG WITH TABULAR SUMMARY OF THE PROJECTS AND CLIENT ASSIGNMENTS UNDE RTAKEN BY MCKINSEY INDIA IN RESPECT OF WHICH THE ASSESSEE HAD PROVIDED ASSISTAN CE TO MCKINSEY INDIA IN THE FOLLOWING: A) SCOPE OF MCKINSEY INDIA'S CLIENT ASSIGNMENTS/PRO JECTS; B) NATURE OF ASSISTANCE SOUGHT BY MCKINSEY INDIA FR OM THE ASSESSEE; C) ASSISTANCE PROVIDED BY THE ASSESSEE TO MCKINSEY INDIA IN RESPECT OF THE BORROWED SERVICE REQUEST; D) NAME OF THE MCKINSEY INDIA EMPLOYEE INITIATING T HE BORROWED SERVICE ASSISTANCE REQUEST; E) NAME OF THE EMPLOYEE OF THE ASSESSEE HANDLING TH E REQUEST FROM MCKINSEY INDIA; F) QUANTUM OF BORROWED SERVICE FEE PAYMENT MADE BY MCKINSEY INDIA TO THE ASSESSEE IN RESPECT OF THE BORROWED SERVICES; AND G) QUANTUM OF TOTAL FEES CHARGED BY MCKINSEY INDIA TO THE ULTIMATE CLIENT. ITAS NO.853 T O 858 & 860 TO 862/M/2015 MCKINSEY & CO MPANY, INC. SWITZERLAND 6 7. THE ASSESSEE HAS ALSO FILED DOCUMENTARY EVIDENCE VIDE LETTER DATED 27.12.2011 WITH THE LEARNED ASSESSING OFFICER DURING THE COURS E OF THE ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2009-10. 8. THE AO, AFTER CONSIDERING ALL THE ARGUMENTS OF T HE ASSESSEE, NEGATED THE SAME AND HELD, THAT INCOME EARNED FROM BORROWED SERVICES , BY THE ASSESSEE, FROM MCKINSEY INDIA IS IN THE NATURE OF 'FEES FOR INCLUD ED SERVICES' UNDER INDIA-US TAX TREATY. 9. THE AO AS WELL AS DRP, HELD THE ABOVE SERVICES A S FEE FOR INCLUSIVE SERVICES AND INCLUDED IN ARTICLE 12(4)(B) OF INDIA US DTAA. 10. IT IS AGAINST THIS DECISION, THE ASSESSEE IS BE FORE THE ITAT. 11. AT THE TIME OF HEARING BEFORE US, THE AR SEGREG ATED THE APPEALS IN THE FOLLOWING BLOCKS: S. NO ITA NO. ASSESSMENT YEAR COUNTRY OF INCORPORATION 1 7646/M/12 2009-10 USA 2 7647/M/12 2009-10 USA 3 7648/M/12 2009-10 USA 4 7649/M/12 2009-10 USA 5 7650/M/12 2009-10 6 7651/M/12 2009-10 7 7652/M/12 2009-10 8 7653/M/12 2009-10 USA 9 7654/M/12 2009-10 USA 10 7655/M/12 2009-10 USA 11 7656/M/12 2009-10 USA 12 7657/M/12 2009-10 USA 13 7658/M/12 2009-10 USA 14 7669/M/12 2009-10 USA 15 7660/M/12 2009-10 USA 16 7661/M/12 2009-10 USA 17 7662/M/12 2009-10 USA 18 7663/M/12 2009-10 USA ITAS NO.853 T O 858 & 860 TO 862/M/2015 MCKINSEY & CO MPANY, INC. SWITZERLAND 7 12. ACCORDING TO THE AR SERIAL NO. 1 TO 18 FALL UND ER ONE CATEGORY, WHERE THE PARENT COMPANY IS INCORPORATED IN THE US AND THE SE RVICES ARE ROUTED THROUGH US. 13. THE AR SUBMITTED THAT IN SO FAR AS SERVICES FRO M US ARE CONCERNED, THE ISSUE WAS SETTLED UNDER MUTUAL AGREEMENT PROCEDURE (MAP), WHEREIN GOVERNMENT OF INDIA AND GOVERNMENT OF US AGREED THAT THE SERVICES PROVIDED BY THE ASSESSEE WOULD NOT FALL IN THE CATEGORY OF FEE FOR INCLUDED SERVICES, BUT SHALL BE FTS, AND FTS SHALL NOT BE TAXABLE. 14. THE AR ALSO SUBMITTED THAT MAP PROCEEDINGS COVE RED UPTO ASSESSMENT YEAR 2007-08 AND SINCE IDENTICAL SERVICES AND IDENTICAL FACTS ARE AVAILABLE, THE IMPUGNED ASSESSMENT YEAR MUST ALSO FOLLOW AND HONOU R THE GOVERNMENT TO GOVERNMENT AGREEMENT. THE AR IN ANY CASE REFERRED T HE CASES OF RADHASOAMI SATSANG VS CIT , REPORTED IN 193 ITR 232 (SC) AND CIT VS J K CHARI TABLE TRUST KAMAL TOWER, REPORTED IN 308 ITR 161, TO BRING HOME THE ARGUMENT, THAT CONSISTENCY MUST BE FOLLOWED BY THE REVENUE AUTHORI TIES. THE AR IN ANY CASE SUBMITTED THAT ONCE SETTLEMENT HAS BEEN ARRIVED AT IN MAP PROCEEDINGS NO OTHER VIEW CAN BE POSSIBLE. 15. THE NEXT BLOCK OF ASSESSEE PERTAINS TO ASSESSEE INCORPORATED IN CANADA, SINGAPORE AND SPAIN: S. NO ITA NO. ASSESSMENT YEAR COUNTRY OF INCORPORATION 19 7673/M/12 2009-10 CANADA 20 7674/M/12 2009-10 SINGAPORE 21 7675/M/12 2009-10 SINGAPORE 22 7676/M/12 2009-10 SPAIN 16. IN SO FAR AS THESE ARE CONCERNED, THE AR SUBMIT TED THAT IN ASSESSMENT YEAR 2007-08, THE ISSUE REACHED THE ITAT AND THE COORDIN ATE BENCH FOLLOWING MAP HELD THAT BORROWED SERVICES, BEING PART OF FTS WERE NOT TAXABLE. THE DEPARTMENT FILED APPEAL BEFORE THE HON'BLE BOMBAY H IGH COURT U/S 260A. THIS APPEAL U/S 260A WAS LATER ON WITHDRAWN, AS THE ISSU E WAS ALREADY DECIDED AND THE CBDT/CHIEF COMMISSIONER OF INCOME TAX ACCEPTED THE DECISION OF THE COORDINATE BENCH OF ITAT, MUMBAI. 17. THE NEXT BLOCK CONSISTED OF ASSESSEE INCORPORAT ED IN THAILAND AND GREECE: S. NO ITA NO. ASSESSMENT YEAR COUNTRY OF INCORPORATION 23 7677/M/12 2009-10 THAILAND 24 7678/M/12 2009-10 GREECE ITAS NO.853 T O 858 & 860 TO 862/M/2015 MCKINSEY & CO MPANY, INC. SWITZERLAND 8 8. THE AR SUBMITTED THAT THE ISSUE IS COVERED BY TH E ITAT ORDERS, WHERE IT WAS HELD THAT AS PER ARTICLE 7 DOES NOT COVER THE CHARGING PROVISIONS & IN ANY CA SE PROVISIONS OF THE INCOME TAX ACT , 1961 GETS RULED OUT (AS FILED IN ITA NO. 7624/MUM/2010) (WHEN ONE OF US WERE A PARTY). 19. THE AR THEREFORE SUBMITTED THAT NO ADDITION IS CALLED FOR. 20. THE DR ON THE OTHER HAND SUBMITTED THAT THE ORD ERS OF THE REVENUE AUTHORITIES ARE VERY REASONABLE. THE DR SUBMITTED T HAT THOUGH THE ISSUE BEFORE MAP PERTAINED UPTO 2007-08, THE CURRENT YEAR IS 200 9-10, THUS IS NOT COVERED BY MAP. THE DR PLACED RELIANCE ON THE DECISION OF C OCHIN BENCH OF ITAT IN THE CASE OF US TECHNOLOGY RESOURCES PVT. LTD. IN IT A NO. 222/COCH/2013. 21. WE HAVE HEARD THE ARGUMENTS AND HAVE PERUSED TH E VARIOUS ORDERS RELIED UPON BY THE CONTESTING SIDES. 22. AT THE OUTSET, SINCE THERE ARE ORDERS FROM COOR DINATE BENCH AT MUMBAI IN ASSESSEE'S OWN CASE ON THE ISSUE IMPUGNED, WE CANNO T CONSIDER OR PLACE RELIANCE ON THE DECISION OF COORDINATE BENCH AT COC HIN IN SOME OTHER CASE, UNLESS THE ORDERS RELIED UPON BY THE AR ARE PERVERS E AND/OR OUT OF CONTEXT AND ISSUE. 23. WE ALSO FIND OURSELVES BOUND BY THE SETTLEMENT ARRIVED AT GOVERNMENT TO GOVERNMENT LEVEL UNDER MAP PROCEEDINGS, WHICH WE MU ST HONOUR AND FOLLOW. 24. IN SUCH A CASE WE SET ASIDE THE ORDERS OF THE R EVENUE AUTHORITIES AND DIRECT THE AO TO DELETE THE ADDITIONS SO MADE. 25. AS MENTIONED HERE ABOVE, WHEN THERE IS A DECISI ON OF THE COORDINATE BENCH AT MUMBAI IN ASSESSEE'S OWN CASE, JUDICIAL PROPRIET Y DEMANDS THAT SIMILAR ORDER MUST PREVAIL ON THE ISSUE FOR THE SAKE OF CON SISTENCY. IT IS ALSO A FACT THAT THE REVENUE AUTHORITIES OR THE DR DID NOT SHOW US A NYTHING WHICH COULD BE TERMED DIFFERENT OR LOOKED AT DIFFERENTLY OR WERE A DIFFERENT FACT. 26. IN SUCH A CASE, WE ARE OF THE OPINION THAT ASSE SSEE INCORPORATED IN CANADA, SINGAPORE, SPAIN, THAILAND AND GREECE, WE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND DIRECT THE AO TO DELETE THE ADDITIO NS IN THOSE ORDERS: 5. CONSIDERING THE DECISION OF THE TRIBUNAL IN ASSESSE ES OWN CASE FOR AY 2009-10 WHEREIN IT WAS HELD THE PAYMENTS MADE ON ACCOUNT OF BORROWED / LOAN SERVICE CHARGES IS NOT TAXABLE AS FTS OR ROYALTY IN INDIA. THUS, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL, T HE SUBSTANTIAL GROUND NO.1 OF THE APPEAL IS ALLOWED IN FAVOUR OF ASSESSEE. ITAS NO.853 T O 858 & 860 TO 862/M/2015 MCKINSEY & CO MPANY, INC. SWITZERLAND 9 6. THE SUBSTANTIAL GROUND NO.2 OF APPEAL RELATES TO MA P. WE HAVE SEEN THAT THE TAXABILITY HAS BEEN SETTLED BY VIRTUE OF AGREEMENT DATED 01.10.2015 ARRIVED BETWEEN THE ASSESSEE AND THE GOVERNMENT OF INDIA UN DER MAP FOR AY 2008-09 & 2009-10 (COPY OF WHICH IS AVAILABLE ON RECORD AT PA GE NO. 107 TO 109 OF PB). WE HAVE FURTHER SEEN THAT ON THE BASIS OF SIMILAR MAP ARRIVED BETWEEN GOVERNMENT OF INDIA AND THE ASSESSEE, THE REVENUE HAS WITHDRAWN T HE APPEAL FOR AY 2003-04 & FOR AY 2006-07 PENDING BEFORE JURISDICTIONAL HIGH C OURT. SIMILARLY, THE REVENUE WITHDREW ITS APPEAL FOR AY 2003-04 & 2004-05 AND TH E ASSESSEE WITHDREW ITS APPEAL FOR AY 2004-05 BEFORE THE TRIBUNAL. IN OUR V IEW, THE REVENUE MUST FOLLOW THE CONSISTENCY WHILE PASSING THE ASSESSMENT ORDER AND TO HONOUR THE MAP ENTERED BETWEEN GOVERNMENT OF INDIA AND THE ASSESSEE CONCER N. THUS, CONSIDERING THE ABOVE FACTUAL POSITION, WE DIRECT THE AO TO FOLLOW THE MAP BETWEEN GOVERNMENT OF INDIA AND THE GROUP OF ASSESSEE AS ARRIVED IN SE TTLEMENT DATED 01.10.2015. THUS, THE ASSESSEE ALSO SUCCEEDED ON SECOND SUBSTANTIAL G ROUND OF APPEAL. AS WE HAVE ALLOWED THE SUBSTANTIAL GROUNDS OF APPEAL IN FAVOUR OF ASSESSEE AND GRANTED FULL RELIEF FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF TRIBUNAL AND THE MAP, THUS, OTHER CONSEQUENTIAL ISSUES RAISED BY ASSESSEE BECAM E ACADEMIC. 7. IN THE RESULT, ALL THE APPEALS FILED BY ASSESSEE AR E ALLOWED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST DAY OF AUGUST 2017. SD/- SD/- (P.K. BANSAL) (PAWAN SINGH) (VICE-PRESIDENT) JUDICIAL MEMBER MUMBAI; DATED 01/08/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT ITAS NO.853 T O 858 & 860 TO 862/M/2015 MCKINSEY & CO MPANY, INC. SWITZERLAND 10 BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/