TaxTMI 
TaxTMI 
2019 (5) TMI 1535
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....in law, the Ld. CIT(A) erred in upholding the action of the Ld. AO in concluding that the payment of management service fees of Rs. 95,95,363/- to Outotec Oyj would come within the purview of technical services as per Article I3(4)(c) of the Indo Finland Tax Treaty ('Tax Treaty'). 1.2 That in the facts and circumstances of the case and in law, the Ld. CIT(A) as well as Ld. AO erred in misinterpreting the make available clause as present in Article I3(4)(c) of Tax Treaty and concluding that the management services received by Appellant from Outotec Oyj would be taxable as fee for technical services ('FTS') under the Tax Treaty without providing any cogent reasons to support the same. 2.0 That in the facts and circumstances of the case and in law, the Ld. CIT(A) erred in upholding the action of Ld. AO in making disallowance u/s 40(a)(i) of the Act amounting to Rs. 6,89,025/- and Rs. 4,81,308/- representing payment of consultancy fees to International Project Services OY ('IPS') and Outotec Research OY ('ORY') respectively. 2.1 That in the facts and circumstances of the case and in law, the Ld. CIT(A) erred in upholding the action of the Ld....
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....fined in the India-Finland Treaty. The meaning of the phrase "make-available" used in the India Finland Treaty was imported by the assessee from the India USA DTAA and so I am of view that by doing so the assessee is trying to get away with the liability under section 195 of the Income Tax Act The DTAA are country specific and 4 the Import of the meaning from DTAA treaties made with other countries is not permissible. b. Further the assessee is contention that as per provisions of section 90 (2) of the Act Outotec Oyj, international projects services OY and Outotec Research OY are allowed to take the benefit of the beneficial provisions of DTAA also does not hold good. As it is explained in the preceding paragraph that the service provided to the assessee company is falling within the purview of the definition of technical services as envisaged in Article 13 of the DTAA and as per India Finland DTAA the tax on such services would be levied @20%. c. Section 195 of the I.T Act states that any person responsible for paying any non-resident, not being a company, or to a foreign company, any interest or any other sum chargeable under the provision of this Act (not bein....
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....ving global standardization of operations and assisting the appellant Company so as to better carry out its business operations, during the financial year ("FY") 2009-10, the appellant company entered into an agreement with Outotec Oyj. Further, Outotec Oyj has highly experienced personnel and knowledge for providing such services. 3.4 No services were rendered by Outotec Oyj to the appellant to enable the appellant to conduct such activity in future without recourse to Outotec Oyj. 3.5 For the purpose of determining the taxability of a non-resident in India, covered by a tax treaty; there are two approaches that can be adopted. The first approach is to decide whether the income of the non-resident is taxable under the provisions of the Act. If the income is found to be taxable under the provisions of the Act, then one needs to look at the provisions of the tax treaty to consider the taxability of the income under the treaty. The result which is more favourable then needs to be adopted. 3.6 Alternatively, before proceeding to consider taxability of a non-resident, covered by the provisions of a tax treaty, in terms of the provisions of the domestic tax la....
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.... reported in 152 ITR 57 (St) The term "fees for technical services" as used in this Article means payments of any kind to any person, other than payments to an employee of the person making the payments and to any individuals for independent personnel services mentioned in Articles 15, in consideration for services of a managerial, technical or consultancy nature, including the provision of services of technical or other personnel." (Emphasis Supplied) Vide Notification No. G.S.R. 495(E), dated 13th August, 1998, reported in 233 ITR 84 (St) For the purposes of paragraph 2, and subject to paragraph 5, the term "fees for technical services means payments of any kind to any person in consideration for the rendering of any technical or consultancy services (including the provision of services of technical or other personnel) which: (a) are ancillary and subsidiary to the application or enjoyment of the right, property or information for which a payment described in sub-paragraph (a) of paragraph 3 is received; or (b) are ancillary and subsidiary to the enjoyment of the property for which a payment described in sub-paragraph (b) of paragraph ....
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.... above-mentioned services into consideration, it can be observed that the services rendered to the appellant in terms of the Service Agreement are primarily 'managerial' in nature since the purpose of entering into the Agreement is to standardize the practices globally of the group companies as a whole so that they adopt the standard procedures with the object of achieving global standardization for the group as a whole and hence these services fall outside the scope of the definition of FTS provide under the India- Finland DTAA since the word managerial has been specifically excluded from the said definition. 4.4 The appellant would also like to bring to your goodselfs attention that it was the intent of the countries to specifically exclude "managerial services" from the purview of the definition of FTS in the India-Finland Treaty. It is pertinent to note that wherever the intention of the countries has been to use the term "managerial" the same has been explicitly used in the respective DTAAs, for instance, the India-France DTAA or the India-Singapore DTAA. A copy of the extract of the India-France DTAA and India-Singapore DTAA where the term "managerial" has be....
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....again for your perusal: "Article 12 : ROYALTIES AND FEES FOR TECHNICAL SERVICES - 1.Royalties or fees for technical services arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2 ............................ 3.(a) .................... (b) The term "fees for technical services" as used in this Article means payments of any kind, other than those mentioned in Articles 14 and 15 of this Agreement as consideration for managerial or technical or consultancy services, including the provision of services of technical or other personnel." (Emphasis Supplied) 4.6 In this regard, we would like to draw support from the ruling given by Hon'ble AAR in the matter of Invensys Systems Inc. Vs DIT [183 Taxman 81 (AAR)] wherein AAR on a substantially similar set of facts have held that the services do not qualify as 'technical' services since the same are 'managerial' in nature. The relevant extracts of the Ruling are reproduced here-under: "8. On an analysis of the nature of functions that are enumerated in the Agreement, it is fairly dear that many or most, o....
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....agreement have the trappings of technical or consultancy services, looking at the substance and the predominant nature of the services, they primarily fall under the category of 'managerial'. (Emphasis supplied by us) 4.7 Thus, in light of the overall submission and the judicial precedents, it is clear that the intention of the countries as per the earlier India-Finland DTAA, as applicable in the case of the appellant for the year under consideration, was not to include managerial services within the purview of the definition of FTS. Therefore the observation of the AO that the services are covered under the definition of technical servicers envisaged in the India Finland Tax Treaty does not hold good. 4.8 Further, assuming that even if the management services / functions can be brought within the definition of technical or consultancy services, yet the same will not be taxable as FTS as the other element in clause (c) of Article 13(4) of the DTAA viz., "make available" is not satisfied in the instant case which has been explained in detail in the paragraphs mentioned here in below. 4.9 It is submitted that the India-Finland DTAA has hot defined w....
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....ology. Are the fees in this example payments for included services? Analysis: The fees would not be for included services. Although the U. S. company is clearly performing a technical service, no technical knowledge, skill, etc., are made available to the Indian company, nor is there any development and transfer of a technical plan or design. The U. S. company is merely performing a contract manufacturing service." 4.12 There are a plethora of case decisions where the concept of "make available" has been explained. The appellant would like to sight before your honour a few of the case decisions on this point. 4.13 The Hon'ble Karnataka High court in case of De Beers India Minerals (P.) Limited [2012] (346 ITR 467), had the occasion to deal with the concept of 'make available' which was explained as under: "It is not enough that the services offered are the product of intense technological effort and a lot of technical knowledge and experience of the service provider have gone into it. The technical knowledge or skills of the provider should be imparted to and absorbed by the receiver so that 16 the receiver can deploy similar....
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.... 4.15 Further, the connotations of expression 'make available' were considered by the Hon'ble Income Tax Appellate Tribunal ("Tribunal") in the case of Raymond Ltd. vs. Dy. CIT (2003) 86 ITD 791 (Mumbai). The Tribunal, after elaborate analysis of ail the related aspects, observed that "Thus, the normal, plain and grammatical meaning of the language employed, in our understanding, is that a mere rendering of services not roped in unless the person utilizing the services is able to make use of technical knowledge, etc., by himself in his business and or for his own benefit and without recourse to the performer of services, in future". In Raymond's case (supra), the Tribunal also held that rendering of technical services cannot be equated with making available the technical services. Later, in the case of CESC Ltd. vs. Dy. CIT (2003) 87 ITD 653 (Cal.)(TM) also, the question regarding the scope of expression 'making available' came up for the consideration. In that case also the view was that "not only the services should be of technical in nature but such as to result in making the technology available to the person receiving the technical services. We also agre....
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.... (c) ISRO Satellite Centre [2008] (307 ITR 59)(AAR) (d) DCIT vs Boston Consulting Group Pvt. Ltd. [2005] (94 ITD 31) (Mumbai Tribunal); (e) National Organic Chemical Industries Ltd. vs DCIT [2006] (96 TTJ 765) (Mumbai Tribunal); and (f) Bharat Petroleum Corporation Ltd vs JCIT [2007] (111 TTJ 375) (Mumbai Tribunal) 4.20 In view of the above discussion, it is humbly submitted that the payment made by the appellant to Outotec Oyj being not taxable in India, there was no liability on the part of the appellant to deduct tax from such payments and accordingly the same cannot be disallowed u/s 40(a)(i) of the Act. 5.0 Without prejudice to the aforesaid, the appellant further wishes to submit before your kindself that on perusal of the assessment order, it appears that the AO has not disputed the concept of "make available" vis-a-vis services rendered as contended by the appellant. However, the AO is of the view that the meaning of the phrase "makeavailable" used in the India-Finland Treaty which has been imported by the appellant from the India USA DTAA is not correct and therefore the disallowed the expense on this ground. 5.1....
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....ction it is pertinent to point out that the DTAA between India and USA is dated 20- 12-1990, i.e., prior to DTAA between India and U.K. dated 11th February, 1994 in 206 ITR (St.) 235. It is wellsettled principle of law that when an expression of doubtful meaning has received an authoritative interpretation from any Court of law and when the Legislature adopts the same word or expression, subsequently, It must be held that the Legislature was conscious of the interpretation given by the Courts of such expression of doubtful meaning." 5.4 Reference in this connection could also be made to the decision of the Hon'ble Mumbai Tribunal in the case of Raymond Ltd v DCIT(supra), In this case as well while interpreting the term "make available" as per India-UK Treaty, the Tribunal held as under: "94. The Memorandum of Understanding appended to the DTA with USA and the Singapore DTA can be looked into as aids to the construction of the UK DTA. They deal with the same subject (fees for technical services, referred to in the US agreement as "fees for included services"). As noted earlier, it cannot be said that different meanings should be assigned to the US and UK agreem....
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....re agreement by adding the necessary words. What would be the use of coining the words "make available" if it is not intended, as contended by Mr. Kapila, that the person utilizing the services should be in a position to apply the technology for his own use in his business in future without recourse to the person rendering the services? Would it not be a contradiction in terms to say that though the technical knowledge etc. are "made available", the person to whom they are made available cannot apply the same for his benefit? The treaties, in our opinion, could not have intended such a result. What was therefore implicit in the concerned articles in the UK and US DTAs was made explicit by adding the necessary words in the Singapore agreements. As Mr. Dastur rightly remarked, It is a process of evolution guided by experience and what started in 1990 - the DTA with the US - as a MoU gradually crystallised and got incorporated in the article itself in the DTA with Singapore." 5.5 In most of the cases cited above, the relevant treaty for which the decision has been en is a treaty other than the USA treaty. Few other cases where the treaty interpretation has been followed are: ....
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....ke-available" used in the India-Finland Treaty which has been imported' by the appellant from the India USA DTAA is not correct and therefore the disallowed the expense on this ground. [For detailed submission on "make available concept, please refer to the arguments taken under ground 1(a), (b) and (c)] 6.7 In this regard, the appellant humbly wishes to submit before your kindself that the India-Finland DTAA has not interpreted the meaning of "makeavailable" and for this reason the appellant company has resorted to MOU of India US DTAA where in the word "make- available" has been explicitly dealt with. The assessing officer has objected the reference made to India US DTAA by the appellant company stating that the meaning assigned to the word "make-available" in the India-US DTAA cannot be used to used to interpret the meaning of "make available" in India Finland Treaty. 6.8 In this connection reference is invited the decision of the Hon'ble Kolkata Tribunal in the case of CESC Ltd v DCIT (supra) where in it is specifically stated that India-US treaty could be applied while interpreting the provisions of, India UK treaty. A similar decision was al....
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....e and paid to a resident of the other Contracting State may be taxed in that other State. 2.......................... 3.......................... 4. For the purposes of paragraph 2, and subject to paragraph 5, the term "fees for technical services" means payments of any kind to any person in consideration for the rendering of any technical or consultancy services (including the provision of services of technical or other personnel) which: (a) are ancillary and subsidiary to the application or enjoyment of the right, property or information for which a payment described in sub-paragraph (a) of paragraph 3 is received: or (b) are ancillary and subsidiary to the enjoyment of the property for which a payment described in sub-paragraph (b) of paragraph 3 is received; or (c) make available technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or technical design. 5.6. I have perused the agreement between the appellant and Outotec Oyj. Some services which the service provider is required to provide are given below: 10. Information Technology servi....
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....sis - Funding and administering of explorative projects for the group companies - Funding and administering of generic competences for the group companies - Providing and funding of common tools, software applications and databases for the group companies - Maintaining and coordinating technology portfolio (own technologies, competitors) for the group companies - Development of new business concepts (acquiring of new technologies) for the group companies - Provision of Innomanager tool for the group companies - Funding of annual fees in training and quality organizations - Searching and activating cross divisional RTD cooperation (e.g. RTD Committee) for the group companies - Arranging Technology Awards rewarding for the group companies 12. After Sales services - Developing new and long-term service concepts and solutions for the group companies - Increasing share of after-sales services sold globally - Training of after-sales personnel - Developing common global processes and tools, such as customer relationship administration (CRM), product data administra....
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....s necessary to determine the scope of the aforesaid three terms. 5.15. In the above context, reference may be made to a recent decision of the Mumbai Tribunal in the case of TUV Bayren (India) Ltd. dated 06.07.2012 in ITA No 4944/Mum/2002. 5.16. The Hon'ble Delhi High Court in the case of CIT vs. Bharti Cellular Limited (2009) 319 ITR 139 held that the "technical services" would have reference to only technical services rendered by 31 a human; it would not include any service provided by machine or robots. 5.17. Likewise, the scope of "managerial service" and "consultancy service" is that such services can be covered under FTS when the service is provided in the context of running and management of client's business. 5.18. In the case of CIT vs. De Beers India Minerals (P) Ltd., the Hon'ble High Court of Karnataka observed as under: "22 What is the meaning of "make available". The technical or consultancy service rendered should be of such a nature that it "make 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 p....
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..... vs. DCIT, the Hon'ble ITAT Delhi, Bench 'F' observed as under: "15. A perusal of the aforesaid MoU together with the example cited in the said memorandum clearly reveals that for a fee to be called fee for technical services rendered, it is essential that technical knowledge, skill, know-how should be made available to the assessee and the assessee should be at liberty to use them in his own right. In construing the provisions of Indo-UK DTAA, it is possible to make a reference to provisions of the analogous provisions in the Indo-U5 DTAA and this is a permissible aid to interpretation of treaties as held by the Hon'ble Mumbai Bench in the case of Raymond Ltd. v Dy. CIT : (2003) 86 ITD 791......" 5.21. In case of Worley Parsons Services Pty. Ltd., the Hon'ble Court observed as under: "5 The relevant clause is clause (g). It has no application in the present case in as much as no technical knowledge, experience, skill or know-how is 'made available' to GAIL on account of rendering the services. Mere rendering of services is not sufficient to attract clause (g), but those services should result in technical knowledge, etc. being ma....
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....t, not being a company, or to a foreign company, any interest or any other sum chargeable under the provisions of this Act (not being income chargeable under the head "Salaries") shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates in force. Provided that in the case of interest payable by the Government or a public sector bank within the meaning of clause (23D) of section 10 or a public financial institution within the meaning of that clause, deduction of tax shall be made only at the 35 time of payment thereof in cash or by the issue of a cheque or draft or by any other mode. Provided further that no such deduction shall be made in respect of any dividends referred to in section 115-O. Explanation.-For the purposes of this section, where any interest or other sum as aforesaid is credited to any account, whether called "Interest payable account" or "Suspense account" or by any other name, in the books of account of the person liable, to pay such income, such crediting shall be....
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.... residence or place of business in India or any other presence in any manner in India. The section is squarely applicable on the appellant as it has made a payment to a non resident foreign company. 5.28. Further, I am of the view that the payment made by the appellant is for technical services made available to it and is covered by Article 13 of the DTAA. 5.29 The appellant was required to deduct TDS on the payments, which was not done. The addition made by the AO by invoking section 40(a)(ia) is confirmed. The grounds of appeal are thus ruled against the appellant." 6. Before us, the Authorized Representative of the assessee submitted that the issue is covered in favour of the assessee by the decision of Delhi 'E' Bench of the Tribunal in the case of the assessee itself for assessment year 2009-10 reported in (2015) 41 ITR(T) 449 (Del.) and by the decision of Kolkata Bech 'C' of the Tribunal in the case of Outotec Oyj Vs DCIT(IT)-2(1), Kolkata reported in 162 ITD 541 (Kolkata-Trib). 7. The Departmental Representative relied on the orders of the lower authorities. 8. We find that in the assessment year 2009-10, the Tribunal held as under: "2. Th....
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....essee was to render supervisory services for erection, commissioning and training for the Dore metal plant of Sterlite in Tuticorin. He required the assessee to produce the Agreement dated 1.11.2008 with IPS under which the services required to be rendered to Sterlite were outsourced from IPS for a consideration of Rs. 1.92 crore. The ld. CIT(A) went through the Agreement between the assessee and Sterlite and noted the scope of services to be provided. He also took into consideration a copy of the so-called Agreement dated 1.11.2008 between the assessee and IPS, under which the assessee claimed to have outsourced such services from IPS to be provided to Sterlite. A copy of such four-page document claimed as Agreement, produced before the ld. CIT(A), had first two pages which did not bear any signature, stamp or seal of the parties. He required the assessee to produce the original Agreement, which the assessee failed to comply with. The ld. CIT(A) observed that the main terms and conditions of the Agreement were appearing on the first two pages, which were unsigned plain papers without any page number, date, seal or stamp. He, therefore, refused to accept the authenticity and genuin....
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....Agreement between the assessee and IPS was not genuine and it was simply a make-believe arrangement aimed at defrauding the Revenue. During the course of hearing before the ld. CIT(A), the assessee submitted a copy of the Certificate issued by IPS containing names of five engineers who were claimed to have been sent by it to Sterlite for rendering supervisory services. This certificate, again undated, was held to be self serving and hence unreliable. In the backdrop of such facts, the ld. CIT(A) reached a conclusion that no services were provided by IPS. However, from the weekly time sheets issued by the assessee and approved by Sterlite and the invoices raised by the assessee on Sterlite, he observed that the services were rendered by these five engineers, residents of Finland, from 24.11.2008 to 24.04.2009. The factum of rendering of actual supervisory services by the above five engineers from Finland and the absence of any services given by IPS, led the ld. CIT(A) to conclude that the services given by five engineers from Finland were in the nature of 'Independent personal services' covered under Article 15 of the DTAA. As the services were performed by these engineers i....
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.... 2 to clause (vii) of sub-section (1) of section 9. The crux of this provision is that if any interest, royalty, fees for technical services or any other sum chargeable under this Act is payable outside India or in India to a non-resident on which tax has not been deducted at source, etc., then, no deduction for such expenditure shall be allowed in the computation of Business income of the payer. 6. Section 195(1) provides that: 'Any person responsible for paying to a non-resident, not being a company, or to a foreign company, any interest ..... or any other sum chargeable under the provisions of this Act (not being income chargeable under the head "Salaries") shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates in force....'. A conjoint reading of sections 40(a)(i) and 195 brings to the fore that it is a duty of the person responsible for paying, to deduct income-tax at source from any amount paid/payable to a non-resident or a foreign company which is 'chargeable under the provisio....
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....ltancy services. When we consider the nature of services provided to Sterlite by the non-resident, being the 'supervisory services for erection, commissioning and training' for setting up a plant of M/s Sterlite Industries, it becomes patent that such services fall within the ambit of Explanation 2 to section 9(1)(vii), thereby making the payment of Rs. 1.92 crore as 'fees for technical services' covered u/s 9(1)(vii) of the Act. Once an Indian enterprise pays fees for technical services to a non-resident, the amount so paid becomes chargeable to tax in the hands of such nonresident and the failure to withhold tax from such payment magnetizes the disallowance u/s 40(a)(i) of the Act. The ld. AR was fair enough to candidly concede that the amount payable by the assessee to the non-resident is in the nature of 'fees for technical services' as per section 9(1)(vii) of the Act. He, however, contended that there was no liability of the assessee to deduct tax at source from such amount because of the applicability of DTAA which immunes from tax the amount towards fees for technical services as paid in the present circumstances to the non-resident. 9. Sub-....
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....vices arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such royalties and fees for technical services may also be taxed in the Contracting State in which they arise and according to the laws of that State, but the tax so charged shall not exceed........ 3. ** ** ** 4. For the purposes of paragraph 2, and subject to paragraph 5, the term "fees for technical services" means payments of any kind to any person in consideration for the rendering of any technical or consultancy services (including the provision of services of technical or other personnel) which: (a) are ancillary and subsidiary to the application or enjoyment of the right, property or information for which a payment described in sub-paragraph (a) of paragraph 3 is received; or (b) are ancillary and subsidiary to the enjoyment of the property for which a payment described in subparagraph (b) of paragraph 3 is received; or (c) make available technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or technical design. ....
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....s of the DTAA makes it vivid that it refers to payment of any kind for rendering of any technical or consultancy services which make available technical knowledge, skill or know how, etc. to the payer. 12. The expression 'make available' in the context of 'fees for technical services' contemplates that the technical services should be of such a nature that the payer of the services comes to possess the technical knowledge so provided which enables it to utilize the same thereafter. The Hon'ble Karnataka High Court in the case of CIT v. De Beers India Minerals (P.) Ltd. [2012] 346 ITR 467/208 Taxman 406/21 taxmann.com 214 has dealt with the concept of 'make available' in the context of fees for technical services. It has been held that : "The expression 'make available' only means that the recipient of the service should be in a position to derive an enduring benefit and be in a position to utilise the knowledge or knowhow in future on his own. By making available the technical skills or know- how, the recipient of the same will get equipped with that knowledge or expertise and be able to make use of it in future, independent of the servi....
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....s, it is manifested that such technical services do not fall within the purview of the definition of 'fees for technical services' as given in para 4 of this Article, as nothing has been 'made available' by the rendition of technical services for any future use. If the provisions of Article 13 of DTAA are exhausted and it is not the case of the AO that the amount be considered under any other Article of the DTAA, it would mean that albeit the amount is chargeable to tax in the hands of the non-residents as per section 9(1)(vii) read with section 5(2) of the Act, but, the chargeability will be waived because of the inapplicability of Article 13 of the DTAA, which is a more beneficial provision than section 9 read with section 5 of the Act. In that view of the matter, the assessment order considering payment of Rs. 1.92 crore to M/s IPS Finland for technical services as violating the provisions of section 195, thereby resulting into disallowance u/s 40(a)(i), cannot be countenanced. 14. It is noticed that when the matter was carried by the assessee in appeal before the ld. CIT(A), the latter opined that there was no genuine agreement between the assessee and ....
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....thorities below that no amount was paid to IPS during the whole of the year and the entire amount of Rs. 1.92 crore was payable. Page 153 of the paper book is a copy of a certificate allegedly issued by IPS Finland stating that five of its employees were sent to India at the instance of the assessee. This document has been purportedly signed by one Mr. Erkko Virrankoski, the President of IPS, Finland. When we compare the signature on this supposed certificate with the signatures made on pages 3 and 4 of the so-called agreement, it can be easily deduced that both the signatures are entirely different. Apart from that, if IPS was to render services on a regular basis to Sterlite at the instance of the assessee, it is but natural that the assessee would have assigned some duties in specific and monitored regularly by interacting with the Finland concern. As against that, the assessee miserably failed to place copies of any correspondence whatsoever with IPS. The assessee admitted before the ld. CIT(A) that no such correspondence in the form of letters or e-mails was available. We are at loss to appreciate as to how is it possible that a party to whom the assessee was to allegedly pay ....
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....personal services 1. Income derived by a resident of a Contracting State in respect of professional services or other independent activities of a similar character may be taxed in that State. Such income may also be taxed in the other Contracting State if such services are performed in that other State and if: (a) he is present in that other State or a period or periods aggregating to 90 days or more in the relevant fiscal year; or (b) he has a fixed base regularly available to him in that other State for the purpose of performing his activities; but in each case only so much of the income as is attributable to those services. 2. The term "professional services" includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, surgeons, lawyers, engineers, architects, dentists and accountants.' 18. On going through the mandate of Article 15 of the DTAA, it can be seen that it covers professional services or other independent activities of similar character. The term 'professional services', inter alia, includes independent activitie....