2019 (1) TMI 535

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....dication. 3. In ground no. 2, the assessee is aggrieved of the disallowance of Rs. 4,11,279 on account of late payment of contribution to PF and ESI. 4. Learned representatives fairly agree that the issue is now covered against the assessee by Hon'ble jurisdictional High Court's judgment in the case of CIT Vs Gujarat State Road Transport Corporation (366 ITR 170). We, therefore, decline to interfere in the findings of the CIT(A), which are in consonance with the law so laid down by Their Lordships, on this aspect of the matter. 5. Ground no. 2 is, accordingly, dismissed. 6. In ground no. 3, the assessee is aggrieved of the disallowance of Rs. 1,67,090 on account of testing expenses. 7. The relevant material facts are like this. The ass....

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....ndia Switzerland Double Taxation Avoidance Agreement dated 2nd November 1994, read with its protocol clause and the subsequent tax treaties that India has entered into with a number of OECD countries, including, e.g. India Canada DTAA dated 11th January 1996, the "make available" clause has application in the context of fees for technical services. Under this clause, the fees for technical services For purposes of this Indo Swiss tax treaty, therefore, "fees for technical services" means payments of any kind to any person in consideration for the rendering of any technical or consultancy services (including through the provision of services of technical or other personnel) if such services :(a) are ancillary and subsidiary to the applicatio....

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....al High Court or by Hon'ble Supreme Court. In De Beers India (P.) Ltd. case (supra), their Lordships posed the question, as to "what is meaning of 'make available'", to themselves, and proceeded to deal with it as follows: '......The technical or consultancy service rendered should be of such a nature that it "makes available" to the recipient technical knowledge, know-how and the like. The service should be aimed at and result in transmitting technical knowledge, etc., so that the payer of the service could derive an enduring benefit and utilize the knowledge or know-how on his own in future without the aid of the service provider. In other words, to fit into the terminology "making available", the technical knowledge, sk....