ITO v. Sungard Availability Services LP

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The Tax PublishersITA Nos. 838 & 839/PUN/2022 2023 TaxPub(DT) 535 (Pune C Bench) S.S. GODARA, J.M. & G.D. PADMAHSHALI, A.M. ITO v. Sungard Availability Services LP ITA Nos.838 & 839/PUN/2022 A.Y.s 2018-19 & 2019-20 19 January 2023 Assessee by: Siddhesh Chaugule Revenue by: Dipak Garg, CIT-DR ORDER *S.S. Godara, J.M.* These Revenue's twin appeals for A.Ys. 2018-19 and 2019-20 arise against the Commissioner (Appeals), Pune-13, Pune‟s DINs and Order Nos.ITBA/APL/S/250/2022-23/1046012870(1) and ITBA/APL/S/250/2022-23/1046014303(1); both dated 27-9-2022, respectively, in proceedings under section 143(3) read with section 144C of the Income Tax Act, 1961, in short the Act‟. Heard both the parties. Case files perused. 2. It transpires at the outset that the Revenue's former lead appeal ITA No.838/PUN/2022 for assessment year 2018-19 raises the following substantive grounds: (a) Whether on the facts and circumstances of the case and in law, the Learned Commissioner (Appeals) has erred in treating the amount of Rs.99,20,61,868as non taxable in India, on the ground that the services were rendered outside India, without appreciating the facts that the assessee had failed to fulfill all conditions as laid down in clause (b) of section 9(1)(vi) of the Income Tax Act, 1961. (b) Whether on the facts and circumstances of the case and in law the Learned Commissioner (Appeals) has erred in treating the FTS received by the assessee from Infosys Ltd. being not accrued or arose in India without appreciating the fact the assessee had fulfilled all the conditions as enumerated in clause (b) of Article 12(4) of the India-USA DTAA. 3. We further note that the only difference in assessment year 2019-20 in Revenue's ITA No.839/PUN/2022 pleadings is that of the amount involved i.e. Rs.84,28,48,592 since the sole substantive issue tends to be identical. 4. Both the learned representatives reiterated their respective stands against and in support of correctness of the Commissioner (Appeals)‟s action in issue reversing the assessment findings holding the assessee's receipts in issue as taxable in India despite the fact that it had rendered the corresponding services in USA only. It further transpires that the instant sole issue raised at the Revenue's behest is no more res integra as the tribunal‟s recent order in the preceding assessment year 2017-18 involving the departmental appeal ITA No.258/PUN/2021 decided on 28-11-2022 has upheld the Commissioner (Appeals) identical findings as follows: SUBSCRIBE FOR FULL CONTENT

The Tax PublishersITA Nos. 838 & 839/PUN/2022
2023 TaxPub(DT) 535 (Pune C Bench)

S.S. GODARA, J.M. & G.D. PADMAHSHALI, A.M.

ITO v. Sungard Availability Services LP

ITA Nos.838 & 839/PUN/2022

A.Y.s 2018-19 & 2019-20

19 January 2023

Assessee by: Siddhesh Chaugule

Revenue by: Dipak Garg, CIT-DR

ORDER

S.S. Godara, J.M.

These Revenue's twin appeals for A.Ys. 2018-19 and 2019-20 arise against the Commissioner (Appeals), Pune-13, Pune‟s DINs and Order Nos.ITBA/APL/S/250/2022-23/1046012870(1) and ITBA/APL/S/250/2022-23/1046014303(1); both dated 27-9-2022, respectively, in proceedings under section 143(3) read with section 144C of the Income Tax Act, 1961, in short the Act‟.

Heard both the parties. Case files perused.

2. It transpires at the outset that the Revenue's former lead appeal ITA No.838/PUN/2022 for assessment year 2018-19 raises the following substantive grounds:

(a) Whether on the facts and circumstances of the case and in law, the Learned Commissioner (Appeals) has erred in treating the amount of Rs.99,20,61,868as non taxable in India, on the ground that the services were rendered outside India, without appreciating the facts that the assessee had failed to fulfill all conditions as laid down in clause (b) of section 9(1)(vi) of the Income Tax Act, 1961.

(b) Whether on the facts and circumstances of the case and in law the Learned Commissioner (Appeals) has erred in treating the FTS received by the assessee from Infosys Ltd. being not accrued or arose in India without appreciating the fact the assessee had fulfilled all the conditions as enumerated in clause (b) of Article 12(4) of the India-USA DTAA.

3. We further note that the only difference in assessment year 2019-20 in Revenue's ITA No.839/PUN/2022 pleadings is that of the amount involved i.e. Rs.84,28,48,592 since the sole substantive issue tends to be identical.

4. Both the learned representatives reiterated their respective stands against and in support of correctness of the Commissioner (Appeals)‟s action in issue reversing the assessment findings holding the assessee's receipts in issue as taxable in India despite the fact that it had rendered the corresponding services in USA only. It further transpires that the instant sole issue raised at the Revenue's behest is no more res integra as the tribunal‟s recent order in the preceding assessment year 2017-18 involving the departmental appeal ITA No.258/PUN/2021 decided on 28-11-2022 has upheld the Commissioner (Appeals) identical findings as follows: