The order of the Bench was delivered by
1. The above captioned appeals have been filed by the separate assessees against separate impugned orders all relating to the assessment year 2008- 09 and one case for the assessment year 2007-08. The sole issue raised in all the appeals is with regard to the taxability of borrowed service charges and the applicability treaty benefits under India-US tax treaty.
2. Before us, the learned senior counsel Shri Porus Kaka submitted that out of the twelve matters, in eleven matters, all the assessees companies incorporated and tax residence of the US and are eligible for the claim of benefits under the Indo-US Double Taxation Avoidance Agreement. All these assessees are part of the McKinsey group, which are engaged in providing strategic consultancy services to their clients. He further submitted that a similar issue had come up for consideration, not only in the earlier years but also in the subsequent years, before the Tribunal in several cases of the concerned assessees. The Tribunal in all the cases invariably had held that, firstly, such services do not fall within the ambit of fees for services under article 12 of the Indo-US Double Taxation Avoidance Agreement and moreover, this issue has been settled under the MAP proceedings settled between Government to Government, which must be honoured and followed. Further, in the case of McKinsey and Company Singapore Pte. Ltd. India in I. T. A. No. 8775/Mum/2011, he submitted that the same is also covered by the decision of the Tribunal, wherein, similar view has been taken that the services rendered do not fall within the ambit of fees for technical services as contemplated in the Indo- Singapore treaty.
3. The learned Departmental representative also admitted to the aforesaid facts that the issue stands squarely covered.
4. In view of the admitted fact that the issue has been settled under the MAP proceedings arrived at settlement between Government to Government level and therefore, honouring the same, we hold that such a borrowed services is not part of fees for technical services/fees for included services and hence not taxable in India. Not only this, the Department in the appeal filed before the High Court in the earlier years under section 260A have later on withdrawn the appeal on the ground that the issue has been settled under MAP. Further, the Tribunal invariably in the cases of the assessee have been consistently holding that the services rendered by the assessee do not fall within the ambit of fees for technical services as defined in article 12(4) of Indo-US Double Taxation Avoidance Agreement ([1991] 187 ITR (St.) 102 ). These orders have been followed in the subsequent year in the assessment year 2009-10 by the Tribunal vide order dated April 17, 2015 a copy of which has been filed in the paper book pages 1 to 9. Accordingly, respectfully following the judicial precedents and also the fact that in the present cases, the issue has been settled under the MAP proceedings, we hold that the services rendered by the assessees are not taxable in India under article 12 and also it is an admitted fact that the assessee do not have any permanent establishment in India and therefore, the same is not taxable under the treaty.
5. Now coming to the McKinsey and Company Singapore, Pte Ltd., we find that this issue has been decided by the Tribunal in the assessment year 2006-07, wherein, the Tribunal have granted relief after observing and holding as under :
"Thus, it is clear that the issue involved regarding borrowed service charges was decided by this Tribunal in favour of the assessee and further the Department has resolved that the issue under MAP and consequently withdrawn the appeals filed before the hon'ble High Court. Further, the assessee has filed a letter dated February 12, 2014 thereby stated that the issue relating to taxability of firm function charges does not arise in case of these three appeals and the only issue involved in these appeals is the taxability of borrowed service charges, which has been decided in favour of the assessee under the mutual agreement procedure. In view of the above facts and circum stances, when the issues involved in these appeals have already resolved under the mutual agreement procedure, we direct the Assessing Officer to grant the relief accordingly to the assessee after verification of fact that the issues have already been resolved under the mutual agreement procedure."
6. Accordingly, following the same, we direct the Assessing Officer to grant the relief accordingly.
7. In the result, all the appeals of the assessees are treated as allowed.
The order pronounced in the open court on the 19th June, 2015.