skc 1 15 ITXA 893 14.sxw IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 893 OF 2014 Director of Income Tax (International Taxation) II, Mumbai ..Appellant Vs. M/s. Marks & Spencer Reliance India Pvt. Ltd. ..Respondent Mr. Arvind Pinto for Appellant. Mr. J. D. Mistri Senior Counsel with Mr. P. C. Tripathi i/b. Mr. Raj B. Darak for Respondent. CORAM : S. C. DHARMADHIKARI AND PRAKASH D. NAIK, JJ. DATE : 3RD MAY, 2017 P.C. : 1] We have heard Mr. Pinto appearing on behalf of Revenue in support of this appeal. 2] In paragraphs 4.1 and 4.2 of this memo of appeal, Revenue says that facts are as under:- 4.1 Assessing Officer, from records noted that Respondent Company had made payment of sum of Rs.4.83 crore, to Marks & Spencer's PLC London, on which no tax was deducted at Source. application made by Respondent company was withdraw without assigning any reasons for 1/3 ::: Uploaded on - 06/05/2017 ::: Downloaded on - 09/05/2017 09:06:28 ::: skc 2 15 ITXA 893 14.sxw said withdrawal. 4.2 While Company argued that these payments were merely reimbursement of expenditure, it was held by AO to be fee for technical services as per provisions of DTAA. Accordingly AO passed orders u/s 201 holding Company to be liable for tax and simultaneously charged interest. 3] Tribunal after having noted all these facts found that first appellate authority by its order dated 28 th November 2011 for assessment year 2010-2011 rightly interfered with order of Assessing Officer. finding of fact of Tribunal is that Commissioner was right that assessee paid sum of Rs.4866187/- to M/s. Marks & Spencer PLC towards salary expenditure of four employees deputed to assessee for providing assistance in area of management, to setting up of business, property selection and retail operations etc. There was service agreement drawn up and for providing such assistance between these two companies. It was essentially joint venture. Having noted all clauses in agreement, Tribunal rendered finding of fact that there is no rendering of service within meaning of double tax avoidance treaty. This was clear case of deputing officials / employees for promotion of business of assessee which is Indian arm of 2/3 ::: Uploaded on - 06/05/2017 ::: Downloaded on - 09/05/2017 09:06:28 ::: skc 3 15 ITXA 893 14.sxw M/s. Marks & Spencer PLC, UK. Since said payment to employees is already subjected to tax in India, therefore there is no question of treating assessee in default for non deduction of tax at source. Once facts were clear, as these, there was no illegality in order of Commissioner of Income Tax (Appeals) which was maintained by Tribunal. appeal of Revenue was rightly dismissed by Tribunal. 4] We do not find that order of Tribunal is perverse or vitiated by any error of law apparent on face of record. Hence, we do not entertain this appeal. It is dismissed but without any order as to costs. (PRAKASH D. NAIK, J.) (S. C. DHARMADHIKARI, J.) Chandka 3/3 ::: Uploaded on - 06/05/2017 ::: Downloaded on - 09/05/2017 09:06:28 ::: Director of Income-tax (International Taxation) II, Mumbai v. Marks & Spencer Reliance India Pvt. Ltd