M/s. A1 Telekom Austria Aktiengesellschaft, Austria V. Deputy Commissioner of Income Tax (International Taxation), Circle-2(2), Bangalore

MA 211/BANG/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6093 (ITAT-BANGALORE)
• Duration Of Justice: 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 26-10-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 28-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARITHIVEL
• Keywords: Double taxation relief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER M.P. Nos. 211 to 213/Bang/2023 (in IT(IT)A Nos. 336, 338 & 339/Bang/2023) Assessment Years : 2009-10, 2011-12 & 2012-13 M/s. Al Telekom Austria Aktiengesellschaft, HB3, ACC Taxes Telekom, Austria Building, Lassallestrasse, 9, Leopoldstadt, Wien 1020, Austria. ZIP Code – 1020. PAN: AAQCA6492D Vs. The Deputy Commissioner of Income Tax, (International Taxation), Circle – 2(2), Bangalore. APPELLANT RESPONDENT Assessee by : Shri Siddhesh Chaugule, Advocate Revenue by : Shri Parithivel, JCIT DR Date of Hearing : 27-10-2023 Date of Pronouncement : 27-10-2023 ORDER PER BEENA PILLAI, JUDICIAL MEMBER Present miscellaneous petitions are filed by the assessee against the consolidated order dated 25.08.2023. 2. In the miscellaneous petitions filed by the assessee, certain typographic mistakes has been crept in as specified in the M.Ps. Page 2 of 4 M.P. Nos. 211 to 213/Bang/2023 (in IT(IT)A Nos. 336, 338 & 339/Bang/2023) We have considered the submissions of the assessee in respect of the same. The Ld.DR did not object for the mistakes to be rectified. Accordingly, the same is being rectified as under: 3. In the title page of the impugned order passed by this Tribunal dated 25.08.2023, it is mentioned that the date of order passed by Ld.CIT(A)-12, Bangalore for A.Y. 2009-10 is mentioned as 28.02.2022 whereas the correct date of order by Ld.CIT(A) is 28.02.2023. Henceforth the same may be read as 28.02.2023. 4. At page 12 of the impugned order, the following para shall be read as under: “The Ld.AR also submitted that Ground nos. 2 & 3 raised for A.Ys. 2009-10 and Ground no. 2 for A.Ys. 2011-12 and 2012-13 are legal issues which are not pressed by assessee as it has a good case on merit. The Ld.AR submitted that on merits, the decision of Hon’ble Karnataka High Court in a group of cases between M/s. Vodafone Idea Ltd. (Formerly known as M/s. Vodafone Mobile Services Ltd. vs. DDIT(IT) & Ors. in ITA Nos. 160-164/2015 & ITA Nos. 64-66/2020 for A.Ys. 2008-09 to 2015-16 vide order dated 14.07.2023 had decided the issue in favour of assessee.” 5. Further paras 5.2.20 to 8 at pages 34 & 35 of the impugned order stands modified as under: “5.2.20 Respectfully following the above view, in case of Vodafone Idea Ltd. (supra), and the Page 3 of 4 M.P. Nos. 211 to 213/Bang/2023 (in IT(IT)A Nos. 336, 338 & 339/Bang/2023) discussions hereinabove, we hold that payments received by assessee towards interconnectivity utility charges and roaming charges (only for A.Ys. 2011-12 and 2012-13) from Indian customers / end users cannot be considered as Royalty to be brought to tax in India under section 9(1)(vi) of the Act and also as per DTAA. 5.2.21 The payment received by the non-resident assessee amounts to be the business profits of the assessee which is taxable in the resident country and is not taxable in India under Article 5 of the DTAA as there is no case of permanent establishment of the assessee that has been made out by the revenue in India. Even Hon’ble High Court has in para 25, held that the non- resident service providers do not have any presence in India. Accordingly, ground no. 4 for A.Y. 2009-10 and further ground nos. 3 & 4 for A.Ys. 2011- 12 and 2012-13 stands allowed in favour of assessee. 6. The Ld.AR submitted that assessee do not wish to press the legal issue raised in Ground nos. 2 and 3 for A.Y. 2009-10 and Ground no. 2 for A.Ys. 2011-12 and 2012-13. Accordingly, the same is dismissed as not pressed. Page 4 of 4 M.P. Nos. 211 to 213/Bang/2023 (in IT(IT)A Nos. 336, 338 & 339/Bang/2023) 7. Ground no. 5 for A.Y. 2009-10, Ground nos. 6 & 7 for A.Ys. 2011-12 and 2012-13 are in respect of interest computed u/s. 234A, B and C are consequential in nature to the main issue on merits and accordingly need not be adjudicated. 8. Ground no.1 for A.Ys. 2009-10, 2011-12 and 2012-13 are general in nature and therefore do not require adjudication.” 6. Apart from the above changes, other portions of the order shall remain unchanged. In the result, all the three M.Ps. filed by the assessee stands allowed. Order pronounced in the open court on 27 th October, 2023. Sd/- Sd/- (CHANDRA POOJARI) (BEENA PILLAI) Accountant Member Judicial Member Bangalore, Dated, the 27 th October, 2023. /MS / Copy to: 1. Appellant 2. Respondent 3. CIT 4. DR, ITAT, Bangalore 5. Guard file 6. CIT(A)-12 By order Assistant Registrar, ITAT, Bangalore