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Services of corporate guarantee by the assessee not being in the nature of services of managerial, technical or consultancy, the corporate guarantee fee received by the assessee cannot be termed as fee for technical services either under the section 9(1)(vii) or under article of the DTAA.

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Sec. 9(1)(vii) of Income Tax Act, 1961–Transfer Pricing–Assessee filed two appeals against two separate final assessment orders framed under section 144C(13) r/sec. 143 (3) of the IT Act, pursuant to the directions of the DRP in respective years on the various grounds that AO erred in assessing the income of the appellant/assessee at Rs. 1,14,66,317 as against returned income of Rs. 34,36,830; AO and DRP, grossly erred in holding that the ‘Management Fee’ is taxable as ‘Fees for Technical Services’ under Article 13 of DTAA between India-France read with Protocol to the DTAA in holding that Corporate Guarantee Fee is taxable as ‘Fee for Technical Services’ under Article 13 of India France DTAA on extraneous and vague reasons. AO pursuant to directions of the DRP, grossly erred in confirming the addition of Rs. 24,26,660 by characterizing pure reimbursements of disbursements made by the Appellant towards social security contributions as Fee for technical services under Article 13 of India France DTAA on extraneous and vague reasons. AO erred in levying Surcharge and Education Cess on receipts in the nature of Royalties and reimbursements of other expenses, which was offered to tax by the Appellant on gross basis under the India-France DTAA in not allowing the credit of tax deducted at source by JCD India while calculating the tax liability of Appellant and in levying interest of Rs. 720,023 under Section 234A, 234B and 234C of the Act while calculating the tax. ITAT restored the issues no 2 & 6 for deciding afresh. Allowed the issue no.2 holding that services of corporate guarantee by the assessee not being in the nature of services of managerial, technical or consultancy, the corporate guarantee fee received by the assessee cannot be termed as fee for technical services either under the section 9(1)(vii) or under article of the DTAA. Further, restored the issue no.4 to the AO for verifying various agreements and then decide the issue. In respect of issue no.5, directed the AO to delete the education cess and secondary and higher education cess levied on the Income-tax on the gross basis under the India France DTAA. Thus, ITAT allowed both the appeals – JCDECAUX S.A. Vs. ASSTT. CIT [2020] 79 ITR (TRIB) 222 (ITAT-DELHI)