AI Drafter 
TaxTMI 
TaxTMI 
2026 (5) TMI 1484
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....cumstances of the case and in law the Hon'ble CIT(A)/Ld. AO erred in not appreciating that the services availed in connection with repair and maintenance overhauling charges do not fall within the ambit of 'Fees for Technical Services' as defined under Section 9(1)(vii) of the Act. 3. That on the facts and circumstances of the case and in law, the Hon'ble CIT{A)/Ld. AO erred in not recording any specific finding as to whether the alleged services qualify as 'Managerial' or 'Technical' or 'Consultancy' in terms of Explanation 2 to Section 9(1)(vii) of the Act. 4. That on the facts and circumstances of the case and in law, the Hon'ble CIT(A) /Ld. AO has grossly erred in completely disregarding the submissions placed on record and not adjudicating the same as regards as chargeability as per relevant DTAA between India and respective payee countries. 5. That on the facts and in the circumstances of the case and in law, the Hon'ble CIT(A)/ Ld. AO, erred in not taking into consideration the beneficial provisions of Section 90 of the Act available to the respective payees for which relevant documentation was placed....
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....g aviation services in respect of helicopters. He submitted that for the year under consideration, the assessee filed its return of income declaring tax liability of Rs. 82,48,868 under the provisions of the Minimum Alternate Tax ('MAT) of the Income-tax Act, 1961 (for short 'the Act'). He further submitted that the case was selected for scrutiny and assessment was completed under section 143(3) of the Act wherein the AO made a disallowance of Helicopter repair and overhauling charges amounting to Rs. 29,27,08,376 in terms of Section 40{a)(i) of the Act on account of alleged non-deduction of tax at source, considering the same as 'Fee for Technical Services' in terms of section 9(1)(vii) of the Act. He submitted that aggrieved by the aforesaid disallowance, the assessee preferred an appeal before the ld. CIT (A), however, the ld. CIT (A) upheld the order of the AO and confirmed the impugned disallowance : * Disregarding the detailed submissions and documentation placed on record, particularly with respect to the examining the taxability of the repair and overhauling charges in terms of the relevant Double Taxation Avoidance Agreements ('DTAAs') with the res....
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....tested further before the Hon'ble Delhi High Court by the Revenue. 7. In addition to this, he relied on the ITAT in the case of Goodrich Corporation vs. ACIT International Taxation in ITA No. 988/Del/2024 and copy of which is placed on record, wherein it was held that repair services performed outside India without transfer of technical knowledge do not satisfy the 'make available' test under the DTAA and therefore cannot be characterized as FTS and referred para 6 on Page 4 of the said order. He submitted that the above decision was also upheld by the Hon'ble Delhi High Court and copy is placed on record. Accordingly, in view of the above, ld. AR pleaded that the appeal may be allowed. 8. On the other hand, ld. DR of the Revenue relied on the findings of the lower authorities, however, he did not controvert the submissions of the ld. AR of the assessee. 9. Considered the rival submissions and material placed on record. We observed that the issue involved in the present case is squarely covered in favour of the assessee by the decision of coordinate Bench in assessee's own case (supra). Relevant paragraphs of the aforesaid order is reproduced below :- ....
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....nts are chargeable to tax under the provisions of Act. As discussed earlier, in the assessment years in dispute the assessee has made payment to entities resident in USA, UK, UAE, Australia, Canada, Singapore, Spain, Netherlands and France. Undisputedly, India has entered into DTAAs with all these countries. However, the provisions in the treaties with the respective countries are at variance. 20. Insofar as taxability of FTS is concerned, treaties can be classified in the following categories: i. In the first category USA, UK, Australia, Canada and Singapore are placed since the definition of FTS under these treaties are more or less identical and contain make available condition to qualify as FTS. ii. In the second category countries like, Netherlands, Spain and France can be put in as the definition of FTS in the treaties are wider in scope and do not contain make available clause. iii. In the third category UAE can be put as in the treaty with UAE there is no provision concerning FTS. 21. Insofar as the countries falling in the first category, such as, USA, UK, Australia, Canada and Singapore, admittedly, the treaty provisions have m....