TaxTMI 
TaxTMI 
TaxTMI 
2018 (4) TMI 1681
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....of Rs. 38,98,851/- made by the Assessing Officer u/s 40(a)(i) of the Income Tax Act, 1961 (hereinafter called 'the Act'). The grounds raised in the appeal are as under:- "1. That on the facts and circumstances of the case and in law the Ld. CIT(A) erred in deleting the addition of Rs. 38,98,851/- made by the AO u/s 40(a)(i) of the IT Act, 1961. 2. That on the facts and circumstances of the case and in law the Ld. CIT(A) has erred in not appreciating the fact that addition was made on account of payments made to foreign parties without deducting tax at source and therefore, the addition was made correctly u/s 40(a)(i) of the IT Act, 1961. 3. That the appellant craves to the allowed to add any fresh grounds of appeal and/or del....
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....ess as defined in the Indo- US DTAA and further since the same was taxable in the country of residence, no tax was deductible at source in India. With respect to the payment made to M/s Fugro Survey Ltd., the assessee submitted before the Assessing Officer that this company had provided Marine Weather Forecasting Services which was covered by Article 22 of the DTAA with UAE and the same was taxable in the country of residence and no tax was deductible at source in India. However, the Assessing Officer did not accept the contentions of the assessee and proceeded to make a disallowance of Rs. 41,06,346/- u/s 40(a)(i) of the Act. 2.3 Aggrieved, the assessee approached the First Appellate Authority. The Ld. Commissioner of Income Tax (Appeals)....
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....the Paper Book. 5. We have heard the rival submissions and perused the material available on record. It is seen that during the relevant previous year, the assessee had made payments to M/s Fluor Transworld Services Inc. for rendering services in connection with review of the alternative vaporization process for the LNG terminal and recommend a suitable process to the assessee. The scope also involved study of the benefits of the various scheme for generating power through the utilization of LNG. 5.1 The scope of services agreed with Fluor Transworld Inc. was as follows: * Undertake study, comparison and evaluation of the following types of LNG Vaporizers including space requirement and cost evaluation : Open Rack Vaporizers Submerged....
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....n assessee, then such assessee would be governed by either under provisions of the Act or the applicable tax treaty, whichever is more beneficial. 5.4 Fluor Transworld Inc. is a company incorporated in US and accordingly, the provisions of the Agreement for Avoidance of Double Taxation (DTAA) between India and USA would apply in the instant case. Therefore, Fluor Transworld would be governed by the provisions of the Act or the India - US tax treaty, whichever is more beneficial. 5.5 Article 12 of the India - US treaty provides that "Royalties and fees for included services" arising in India and paid to a resident of USA may be taxable in India at the rates specified in the said Article. 5.6 As per Article 12(4) of India-US treaty, fee fo....
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....ude an agent, nominee, or transferee of such person). This category is narrower than the category described in paragraph 4(a) because it excludes any service that does not make technology available to the person acquiring the service. Generally speaking, technology will be considered "made available'' when the person acquiring the service is enabled to apply the technology. The fact that the provision of the service may require technical input by the person providing the service does not per se mean that technical knowledge, skills, etc., are made available to the person purchasing the service, within the meaning of paragraph 4(b). Similarly, the use of a product which embodies technology shall not per se be considered to make the technolog....