Commissioner Of Income-Tax (International Taxation v. Flipkart Internet (P) Ltd.[1

Digitally signedbyMARIGANGAIAHPREMAKUMARILocation: HIGHCOURT OFKARNATAKA C/W ITA No. 657 of 2023 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11 DAY OF JUNE, 2025 PRESENT THE HON'BLE MR. JUSTICE S.G.PANDIT AND THE HON'BLE MR JUSTICE T.M.NADAF INCOME TAX APPEAL NO. 653 OF 2023C/W INCOME TAX APPEAL NO. 657 OF 2023 BETWEEN: 1. PR. COMMISSIONER OF INCOME TAX INTERNATIONAL TAXATION INTERNATIONAL TAXATION BMTC COMPLEX, KORAMANGALA, BANGALORE. 2. JOINT COMMISSIONER OF INCOME TAX (OSD) INTERNATIONAL TAXATION, CIRCLE 1(1)DCIT(IT) BANGALORE. INTERNATIONAL TAXATION, CIRCLE 1(1)DCIT(IT) BANGALORE. …APPELLANTS (COMMON IN BOTH APPEALS) (BY SRI. SANMATHI E.I., ADV. AND SRI M DILIP, ADV.) AND:M/S. GOOGLE LLC (FORMERLY GOOGLE INC.) 1600, AMPHITHEATRE PARKWAY MOUNTAIN VIEW CA US 94043 PAN: …RESPONDENT (COMMON IN BOTH APPEALS) (BY SRI. ANMOL ANAND, ADV. FOR SRI ANIND THOMAS, ADV.) HC-KAR NC: 2025:KHC:19895-DBITA No. 653 of 2023C/W ITA No. 657 of 2023 ITA NO.653/2023 IS FILED UNDER SEC.260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 20/02/2023 PASSED IN IT(IT)A NO. 688/BANG/2022, FOR THE ASSESSMENT YEAR 2012-2013 PRAYING TO 1). DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE COURT AS DEEMED FIT AND ETC. ITA NO.657/2023 IS FILED UNDER SEC.260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 20/02/2023 PASSED IN IT(IT)A NO. 167/BANG/2021, FOR THE ASSESSMENT YEAR 2010-2011 PRAYING TO 1). DECIDE THE FOREGOING QUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE COURT AS DEEMED FIT AND ETC. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.G.PANDIT AND HON'BLE MR JUSTICE T.M.NADAF ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE S.G.PANDIT) Heard learned counsel Sri.E.I.Sanmathi for appellants/Revenue and learned counsel Sri.Anmol Anand for Sri.Anind Thomas, learned counsel for respondent. Perused the entire appeal papers. 2. The above appeals filed under Section 260-A of the Income Tax Act, 1961 is directed against order passed by the Income Tax Appellate Tribunal, Bengaluru ‘C’ Bench, Bengaluru (for short, ‘Tribunal’) in HC-KAR NC: 2025:KHC:19895-DBITA No. 653 of 2023C/W ITA No. 657 of 2023 IT(IT)A.No.688/Bang/2022 for the assessment year 2012-13 and in IT(IT)A.No.167/Bang/2021 for the assessment year 2010-11 respectively (Annexure-A), raising the following substantial questions of law in both the appeals: “1. Whether on the facts and in the circumstances of the case, the Tribunal’s order is perverse in nature in concluding that once the “make available” clause involving provision of technical knowledge and technical services is satisfied then the services rendered do not qualify as FIS ignoring the terms and clauses of the agreement which establish that India personnel are trained by the assessee and thus satisfying the “make available” clause? 2. Whether on the facts and in the circumstances of the case, the Tribunal’s order is perverse in not appreciating that the services rendered are in the nature of Fees for Technical Services? 3. Whether on the facts and in the circumstances of the case, the Tribunal’s order is perverse in nature in not appreciating that HC-KAR the services rendered are in the nature of Fees for Technical Services? 4. Whether on the facts and in the circumstances of the case, the Tribunal’s order is perverse in concluding that the services rendered do not fulfill the criteria of ‘make available’ as mandated in DTAA? 5. Whether on the facts and in the circumstances of the case, the Tribunal’s order is perverse in holding that the receipts for services by the assessee is not FTS within the meaning of the provisions of Section 9(1)(vii) of the Act and Article 12 of India-USA DTAA? 3. Whether on the facts and in the circumstances of the case, the Tribunal’s order is perverse in nature in not appreciating that HC-KAR the services rendered are in the nature of Fees for Technical Services? 4. Whether on the facts and in the circumstances of the case, the Tribunal’s order is perverse in concluding that the services rendered do not fulfill the criteria of ‘make available’ as mandated in DTAA? 5. Whether on the facts and in the circumstances of the case, the Tribunal’s order is perverse in holding that the receipts for services by the assessee is not FTS within the meaning of the provisions of Section 9(1)(vii) of the Act and Article 12 of India-USA DTAA? 6. Whether on the facts and in the circumstances of the case, the Tribunal’s order is perverse in not justified in deciding the issue on the basis of decision in case of Flipkart Internet P. Ltd., when the said decision has not reached finality?” 3. Learned counsel appearing for the respondent would submit that the questions raised in the above appeals are answered in a decision reported in the case of DEPUTY HC-KAR NC: 2025:KHC:19895-DBITA No. 653 of 2023C/W ITA No. 657 of 2023 COMMISSIONER OF INCOME-TAX (INTERNATIONAL TAXATION) VS. FLIPKART INTERNET (P) LTD.[1] 4. Learned counsel Sri.E.I.Sanmathi appearing for the appellants/Revenue would not dispute the said fact, but he submits that against the said issue, Revenue is intending to file SLP before the Hon’ble Apex Court. 5. In view of the fact that questions raised in the above appeals are answered in FLIPKART INTERNET (P) LTD., (supra), following the said decision, the present appeals stand dismissed. appeals stand dismissed. Sd/- (S.G.PANDIT) JUDGE Sd/- (T.M.NADAF) JUDGE NC CT:bms List No.: 1 Sl No.: 15 1(2025) 171 TAXMANN.COM 693 (KARNATAKA)