2012 (8) TMI 743

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....Agreement ('the Agreement') would be in the nature of 'fees for technical services' (9FTS) within the meaning of the term in Explanation 2 to clause (vii) of section 9(1) of the Act?  2.  Whether on the facts and circumstances of the case, the amounts payable by the applicant to SLT under the terms of the Agreement would be in the nature of 'royalty' as per the definition of the terms in (a) Explanation 2 clause (vi) of section 9(1) of the Act or (b) Article 12 of the Treaty, and for determination thereof whether the clause relating to 'process royalty' is relevant or whether only the clause relating to 'equipment royalty' of the definition (s) is relevant?  3.  Whether on the facts and circumstances of the case, S....

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....012. During discussion, it was pointed out that the basic document, namely, the Consortium agreement dated 27.4.2004 of Annexure III to the application was not seen produced and without understanding the right of the grantor of the right to the applicant, it would not be possible to rule on the questions raised satisfactorily. Counsel agreed to produce the document. On 16.8.2012 another request for adjournment made on behalf of the applicant was partially rejected and the application was heard in part. The Revenue present through counsel explained the circumstances leading to the questions formulated. To the best of the recollection of this Authority, the non-production of the basic document from which the rights sprang up in favour of Sri ....

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.... the terms and effect of that document was essential. Without understanding, the rights of the grantor, it was felt that it would not be possible to comprehend the rights conveyed to the grantee, the applicant. 6. On 24.8.2012, when the matter was taken up for hearing, the Consortium agreement had not been produced. No explanation was also forthcoming for its non-production. A paper book containing other relevant materials was produced at the hearing along with a brief written submission on some of the aspects. Counsel argued as if the production of the document dated 27.3.2004 was not an issue at all. 7. As noticed above, the applicant has been granted some rights or privileges by SLT based on an agreement. The basic question is what....