TaxTMI 
TaxTMI 
2003 (2) TMI 26
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....nical fees of Rs. 1,13,572 and Rs. 1,79,775 were required to be charged at 20 per cent. as per the provisions of section 115A(1)(b)(ii) of the Income-tax Act, 1961, as it stood at the relevant time?" The facts of the case are that the assessee Foss Electronic, a non-resident foreign company is developer of milko tester minor and designer and manufacturer of milk analysers (hereinafter referred to as "the foreign company") agreed on October 31, 1980, to supply technical know-how to the Rajasthan State Industrial Development and Investment Corporation Ltd. (hereinafter referred to as "the Indian company"), which was to undertake manufacture of electronic milk analyser (milko tester minor) in the State of Rajasthan by forming a public secto....
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....nd technical services rendered, i.e., training of Indian engineers abroad, deputation of foreign personnel to India to assist in the initial production and the relevant clause is section 115A(1)(b)(iii) of the Act and the tax should have been charged at 40 per cent. and not 20 per cent. That order of the Commissioner of Income-tax passed under section 263 of the Act was challenged by the foreign company-assessee before the Tribunal. The Tribunal took the view that as for the assessment years 1983-84 and 198586 tax was charged at 20 per cent. considering the amount as royalty for technical know-how fees and that has not been revised. Therefore, the Tribunal has set aside the order of the Commissioner passed under section 263 of the Act vi....
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....des that the Indian company licensee wishes to enter into an agreement with Foss (assessee). The relevant para reads as under: "(4) Licensee wishes to enter into an agreement with Foss for the purchase of technical information and technical assistance relating to milko-tester minor, including licences under patents relating thereto, owned or controlled by Foss. In particular, licensee intends to manufacture the milko-tester minor in phases mutually agreed upon and approved by the Government of India." Clause (7) provides that the licensee wishes to form a new public sector company jointly with Instrumentation Ltd., Kota, to undertake manufacture of electronic milk analyser (milko-tester minor) in the State of Rajasthan and this will b....
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....s no default in payment, the licensee, i.e., the Indian company, can use that technical know-how after the expiry of that period at free of cost. If we go by the conditions of the agreement, the amount which has been paid in lieu of supply of technical know-how, it cannot be said that the amount which has been paid for technical know-how or for the assistance provided by the assessee-foreign company is payment against royalty. The entire clauses of the agreement as a whole reveal that the amount was paid by the Indian-company to the assessee, foreign company, as a fees for supply of technical know-how services. Therefore, the Commissioner was justified in revising the order of the Assessing Officer who has applied section 115A(1)(b)(ii) ....