2023 (6) TMI 90

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....y 30, 2015 in ITA No. 1613/Bang/2012 for the A.Y. 2009-10 passed by the ITAT [Income Tax Appellate Tribunal], Bengaluru, has been admitted to consider following question of law; "Whether on the facts and in the circumstances of the case, the Tribunal is right in law in deleting the addition made by assessing officer with regard to fee received by assessee for technical services rendered by it to its Associated Enterprises in India by holding that is no transfer of technology in the case of assessee as the 'make available' clause is not satisfied when assessee has provided services which involve knowledge of technology in the areas of power and automation technologies for utility and industry customers and a person without the techn....

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....re submitting any bid, the Indian company approaches the assessee for risk evaluation of a proposed project and prospective steps to be taken in the bidding process. The Indian entity seeks the opinion of the assessee for review on the risk factors involved in the project and this aspect has been correctly understood by the DRP. However, while issuing the directions to the AO, the DRP has misconstrued the scope of the agreement and the applicability of Article 12 of DTAA and on the other hand, the ITAT having correctly appreciated the facts has allowed the appeal applying the law laid down in Commissioner of Income-tax, Central Circle Vs. De Beers India Minerals (P.) Ltd. [[2012] 21 taxmann.com 214 (Kar) Para 22.] With these submissions, he....

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.... 10. According to Shri Suryanarayana, the DTAA is unambiguous and clearly demonstrates that the fee for included services can be either for technical services or consultancy services because between the technical and consultancy services, the word 'or' has been used and the exclusion helps only if the said 'services' were made available. 11. We have carefully perused the above provision. It is applicable only if 'services' are made available. The word 'services' used is in plural and it is referrable to both technical and consultancy services. It is relevant to note that clause (b) which excludes fee for 'included services' is applicable to both technical and consultancy services. It is recorded by the DRP in Para 6.4 as follows: ....