V. Srinivasan, Adv. for the Petitioner. H. Anand, Addl. CIT (D.R) for the Respondent.

These are the cross appeals filed by the assessee and the revenue against the order of Commissioner of Income Tax (Appeals)-12, Bangalore passed u/s.201(1) and 201(1A) and u/s. 250 of the Income Tax Act, 1961 (the Act). For the sake of convenience,we shall take up the assessee appeal in IT(IT)A No.130/Bang/2018 and facts narrated therein.

2. The assessee has raised the following grounds of appeal :

3. The Brief facts of the case are that the assessee Company is engaged in the business of real estate development, construction of residential apartments and has issued debentures to certain overseas entities and engages M/s. Space Matrix Design Consultants Pte. Ltd., Singapore for architectural services to the proposed project at Chennai. The revenue found that the assessee has made payments to Space Matrix Design Consultants Pte. Ltd without deduction of tax at source and similarly for interest on debentures to non-residents, the assessee has not applied the rate as prescribed in Section 206AA of the Act as the PAN was not provided by the recipients.The assessee has made interest payments to debenture holders @10% rate as per Double Taxation Avoidance Agreements (DTAA) as the recipients are residents of foreign country. Whereas in respect of payments made to M/s. Space Matrix Design Consultants Pte. Ltd., Singapore, the assessee has not deducted the TDS as services are in the nature of architectural services and the payments were made to recipient company of Singapore as per Article 12 of the India-Singapore DTAA.The assessee has submitted the details of payments and explained the reasons for non-deduction of tax by letter dt.3.9.2016 and filed the copy of agreement with M/s. Space Matrix Design Consultants Pte. Ltd., Singapore in respect of architectural services and tax residency certificate and exemptions and such payments to M/s. Space Matrix Design Consultants Pte. Ltd., Singapore are exempted from tax under the DTAA. In respect of payment of interest to non- resident debenture holders, the assessee has deducted tax at 10% as per the terms of DTAA and the provisions of Section 206AA of the Act. The Assessing Officer is of the opinion that the assessee should have deducted tax at 20% as per the provisions of the Act. Further, the Assessing Officer found as per agreement that the services rendered by the Singapore company are in the nature of Fees for Technical Services (FTS) and cannot be categorized as architectural services. The Assessing Officer observed that the agreement was entered by the assessee with M/s. Space Matrix Design Consultants Pte. Ltd., Singapore, where the services rendered by the aforesaid entity are technical services within the meaning of Expln. 2 to Section 9(1)(vii) of the Act and further observed that the payments made to theSingapore entity are FTS, Which fall within the scope of clause (c) of Article 12(4) and India-Singapore DTAA. The ld. A.O. examined the payments in the context of make available clause and concluded that the provisions of designs and drawings by M/s. Space Matrix Design Consultants Pte. Ltd., Singapore would amount to make available of the technology and would be regarded as FTS under Clause 12(4)(b) of Singapore-India DTAA. Similarly, in respect of interest payments made to debenture holders, the Assessing Officer is of the opinion that the assessee should deduct the tax at 20% in terms of Section 206AA of the act as PAN is not provided, and the assessee has not furnished the Tax Residency Certificate of the debenture holders.The provisions of Section 206AA of the Act overrides the provisions of Section 90(2) of the Act and calculated the short deduction of TDS and interest and has determined the total liability payable by the assessee atRs.1,18,07,272/-including interest under Section 201(1A) of Rs.28,28,251/- and passed the order under Section 201&201(1A) of the Act Dt.29.02.2016. Aggrieved by the assessment order, the assessee has filed an appeal with the CIT (Appeals). The CIT (Appeals) considered the grounds of appeal,findings of the Assessing Officer and submissions of the assessee and DTAA provisions in respect of payments made to M/s. Space Matrix Design Consultants Pte. Ltd., Singapore, but has concurred with the action of the Assessing Officer and confirmed the liability of deduction of TDS. In respect of payment of interest on debentures to the non-residents, the CIT (Appeals) find that the assessee has deducted TDS at 10% as per provisions of Section 260AA of the Act and relied on the Tribunal decision and has observed that the deduction of TDS by the assessee is in accordance with the law and partly allowed the assessee appeal. Aggrieved by order of CIT (Appeals), the assessee has filed an appeal with the Tribunal.

4. At the time of hearing, the ld. AR submitted that the CIT (Appeals) has erred in confirming the deduction of TDS in respect of payments made to M/s. Space Matrix Design Consultants Pte. Ltd., Singapore and held as Fees for Technical Services (FTS), irrespective of the fact that the assessee has entered into an agreement with the company for architectural services, which are not within the purview of FTS and relied on the agreements of DTAA between the two countries and supported with judicial decisions and filed Paper Book. Further the ld. AR emphasized that the assessee has submitted complete information before the lower authorities but the lower authorities have overlooked to the facts and referred only to the Head Note and not on the basic services, which are in the nature of architectural services and vital evidences supporting the services were ignored and prayed for allowing the appeal. Contra, the learned Departmental Representative supported the orders of the lower authorities.

5. We heard the rival submissions of the parties and perused the material on record. The sole matrix of the issue in respect of non-deduction of TDS by the assessee on the payments made to M/s. Space Matrix Design Consultants Pte. Ltd.,Singapore. The contentions of the LdAr are that the payments are not in the nature of FTS and also Memorandum of Understanding for Indo-US DTAA could not apply to the India-Singapore DTAA and there is no technical knowledge, experience, skill, knowhow and process are made available. The Assessing Officer has dealt on the clauses of the agreement, whereas the assessee has explained that M/s. Space Matrix Design Consultants Pte. Ltd., Singapore has entered into architectural design services agreement in respect of residential projects in Chennai and has developed drawings, designs and transferred the same to the assessee.

Whereas, the Assessing Officer has observed that the assessee has made available technical knowledge, skill, knowhow and therefore the payments made to the non-resident company in Singapore are in the nature of Fees for Technical Services( FTS) is taxable in terms of Section 5(2) and Section 9(1)(vii) of the Act. The learned Authorized Representative emphasized that the payments made to Singapore based entity are not in the nature of payments for technical services and cannot be treated as FTS as defined in Section 9(1)(vii) of the Act. Further the learned Authorized Representative submitted that the payments made to Singapore entity are not for FTS as defined in Section 12(4)(b) of Indo-Singapore DTAA as no technical knowledge, skill, know how or process was made available.

Similarly, the ld. AR referred to the paper book and the reply submitted by the assessee in response to the notices issued and the explanations furnished before the Assessing Officer. We, on considering the provisions of law, information and submissions of the assessee are of the opinion that the matter required further examination of the facts in respect of services rendered by the Singapore based entity since the Assessing Officer is of the opinion that the services are in the nature of FTS. The ld. AR submitted the material evidences and the DTAA supporting that the services are out of the purview of FTS and are of architectural services.We found that there are no specific findings on the submissions.

Accordingly, in the interest of justice, we restore the disputed issue to the file of Assessing Officer for limited purpose to verify and examine the specific nature of services. Further, the assessee should be provided with adequate opportunity of hearing and shall co-operate in submitting information and allow the grounds of appeal of the assessee for statistical purposes.

6. Now we shall take up the Revenue’s appeal in IT(IT)A No.384/Bang/2018. The Revenue has raised the following grounds of appeal.

7. The learned Departmental Representative submitted that the CIT (Appeals) has erred in not confirming the action of the Assessing Officer, irrespective of the fact that the provisions of Section 90(2) overrides the provisions of Section 206AA of the Act and prayed for allowing the appeal. Contra, the learned Authorized Representative supported the orders of CIT(A) on this disputed issue and relied on the judicial decision of Hon’ble Delhi High Court in the case of M/s Danisco India Pvt. Ltd. Vs. Union of India and Others 404 ITR 539 (Del) and Special Bench decision of Tribunal in the case of M/s. Nagarjuna Fertilisers and Chemicals Limited Vs. ACIT in ITA Nos.1187 & 1188/Bang/2014 Dt.13.02.2017.

8. We heard the rival contentions of the parties and perused the material on record. We found that the CIT (Appeals) has dealt on the disputed issue in respect of deduction of TDS at 10% made by the assessee, irrespective of the fact that there is no scope for deduction of tax at 20% as provided under Section 206AA of the Act.

We found the CIT (Appeals) has dealt on the submissions, provisions of law and relied on the tribunal decision in the case of Infosys BPO Ltd. in IT(IT)A No.143/Bang/2013 and observed at page 12 Para 5 as under :

The learned Authorized Representative also relied on the decision in the case of Denisco India Pvt. Ltd. Vs. Union of India & Others (supra), and the Head note read as under :

“ Non-resident—TDS—Rate of deduction—Beneficial provision of DTAA—Assessee in normal course of its business remitted payments to Company D which was a non-resident company, located in Singapore—Company D was not tax assessee in India—Tax relationship between two countries was regulated in terms of Indo- Singapore DTAA—Revenue held that having regard to section 206A, tax deduction at source was required to be made at 20% in absence of furnishing of PAN by recipient non-residents—Assessee’s case was that Section 206AA (i) had effect of undoing provisions of DTAA, besides being in violation of Article 265 of Constitution of India—Assessee took plea that levy of 20% rate was unconstitutional—Held, in case of Azadi Bachao Andolan Vs. Union of India, (2003) 263 ITR 706 (SC) supreme court held that provisions made in DTAAs prevail over general provisions contained in the Act to extent they were beneficial to assessee—DTAAs entered into between India and other relevant countries in present context provide for scope of taxation and/or a rate of taxation which was different from the scope/rate prescribed under the Act—Thus, in so far as applicability of the scope/rate of taxation with respect to impugned payments made to non-residents was concerned, no fault could be found with rate of taxation invoked by assessee based on DTAAs which prescribed for beneficial rate of taxation—Though charging section 4 and section 5 dealing with ascertainment of total income were subordinate to principle enshrined in section 90(2) but provisions of Chapter XVII-B governing tax deduction at source were not subordinate to section 90(2)—Section 206AA was not charging section but was part of a procedural provisions dealing with collection and deduction of tax at source—Provisions of section 195 which casted duty on assessee to deduct tax at source on payments to a non-resident could not be looked upon as a charging provision—Where tax had been deducted on strength of beneficial provisions of section DTAAs, provisions of section 206AA could not be invoked by AO to insist on tax deduction @ 20%, having regard to overriding nature of provisions of section 90(2)—Provision in Section 206AA (as it existed) had to be read down to mean that where deductee i.e overseas resident business concern conducted its operation from a territory, whose Government had entered into a DTAA with India, rate of taxation would be as dictated by provisions of treaty—Assessee’s petition partly allowed.”

In the above case, the payments are made to Singapore based entity and liable for TDS at 10%. The ld. DR could not controvert the findings of the CIT (Appeals) with cogent material or any new information and relied on the order of AO.

Accordingly, we are not inclined to interfere with the order of the CIT (Appeals) on this disputed issue and upheld the same and dismiss the grounds of appeal of revenue.

9. In the result, the revenue’s appeal is dismissed and the assessee appeal is allowed for statistical purposes.

Pronounced in the open court on the date mentioned on the caption page.

Sd/- Sd/-

(A.K. GARODIA) (PAVAN KUMAR GADALE)

ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated: 24.08.2020.