M/S.foster Wheeler France S.a v. Commissioner Of Income Tax, (International Taxation), 1, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.03.2021 CORAM THE HON'BLE MR.JUSTICE M. DURAISWAMYANDTHE HON'BLE MRS.JUSTICE T.V. THAMILSELVI M/s.Foster Wheeler France S.A.,C/o. SRBC & Associates LLP,6[th] & 7[th] Floor, “A” Block, Tidel Park,No.4, Rajiv Gandhi Salai,Taramani, Chennai – 600 113.... Appellant in both TCAsVs. Commissioner of Income Tax,(International Taxation), 1,Chennai.... Respondent in both TCAsAppeals filed under Section 260A of the Income Tax Act,1961 against the order of the Income Tax Appellate Tribunal,Madras"D"Bench,dated05.02.2016passedinI.T.A.No.774/Mds/2014 and I.T.A.No.641/Mds/2015, for theAssessment year 2008-09, 2009-10 against the order of the DeputyCommissioner of Income Tax international Taxation-1(1) Chennai,made in PAN.NO. order date 08-01-2015, for theAssessment year 2009-10, and against the order of the DeputyDirector of Income Tax International Taxation(1), Chennai madein PAN NO. , date of order 10-03-2014 for theAssessment year 2009-10, made in F.No.DRP/Chennai/Sectt/80/2013-14, against order of the Deputy Director of Income TaxInternational Taxation-(1) made in PAN.NO. order date24-01-2014, , against the order of the Deputy Director of IncomeTax, International Taxation-(1) made in PAN.NO. dateof order 26-07-2013 for the Assessment year 2008-09, against theorder of the Deputy Commissioner of Income Tax, Chennai made inF.No.DCIT/TPO-IV/AY2008-09 dated 30-05-2013, for the Assessmentyear 2008-09 against the order of the Additional Commissioner ofIncome Tax, Transfer Pricing-1, Chennai made in F.No.F-109/TPO-1/AY 2009-10, dated 23-01-2013 for the Assessment year 23-01-2013. Commissioner of Income Tax,(International Taxation), 1,Chennai.... Respondent in both TCAs For Appellant : Mr.N.V.Balaji(in both TCAs) For Respondent : Mr.Karthick Ranganathan, (in both TCAs) Senior Standing Counsel COMMON J U D G M E N T(Delivered by M.DURAISWAMY, J.) The appeals filed by the assessee under Section 260A of theIncome Tax Act, 1961 ('the Act' for brevity), are directedagainst the order dated 05.02.2016 passed by the Income TaxAppellate Tribunal, Madras "D" Bench, ('the Tribunal' forbrevity) in I.T.A.No.774/Mds/ 2014 for the assessment year 2008-09 and I.T.A.No.641/Mds/2015 for the assessment year 2009-10 . 2.The above appeals were admitted on the followingSubstantial Questions of Law: “1)Whether on the facts and the circumstances ofthe case and law, the Tribunal was right in holdingthat the payments made by the appellant to FW USA forsupport services will be covered within the scope ofthe terms “fee for included services” under Article 12(4) of the India-US DTAA and accordingly the appellantis liable to deduct tax at source and that the saidpayment should be disallowed under Section 40(a)(i) ofthe Act? 2)Whether the finding of the Tribunal that thepayments made by the appellant to FW USA for supportservices would fall within the ambit of fee forincluded services under Article 12(4) of the India-USDTAA not perverse?” 3.We have heard Mr.N.V.Balaji, learned counsel for theappellant/assessee and Mr.Karthick Ranganathan, learned SeniorStanding Counsel for the respondent/Revenue. 4.It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17[th] March2020 and published in the Gazette of India on 17[th] March 2020. https://hcservices.ecourts.gov.in/hcservices/ 3.We have heard Mr.N.V.Balaji, learned counsel for theappellant/assessee and Mr.Karthick Ranganathan, learned SeniorStanding Counsel for the respondent/Revenue. 4.It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17[th] March2020 and published in the Gazette of India on 17[th] March 2020. https://hcservices.ecourts.gov.in/hcservices/ 5.We are informed by the learned counsel for the appellant/assessee that the assessee had already been issued with Form – 3on 19.01.2021 and the learned counsel for the appellant seekspermission of this Court to withdraw the appeals. 6.In view of the submission made by the learned counsel forthe appellant, the Tax Case Appeals stand dismissed aswithdrawn. No costs. Sd/- Assistant Registrar(CS-IX) //True Copy// Sub Assistant RegistrarvaTo1.Income Tax Appellate Tribunal, Madras "D" Bench 2.Commissioner of Income Tax, (International Taxation), 1, Chennai.3.The Deputy Commissioner of Income-Tax, International Taxation-1(1), Chennai.4.The Deputy Director of Income Tax, International Taxation-(1), Chennai.5.The Additional Commissioner of Income Tax, Transfer Pricing-1, Chennai.+2cc to Mr.N.V.Balaji, Advocate, S.R.No.21542, 21543 Tax Case Appeal Nos.802 & 803 of 2016 RLD(CO)CB(27/04/2021) M. DURAISWAMY, J.T.V. THAMILSELVI, J. and va 31.03.2021