To qualify u/s. 194J, payment for technical services should be a consideration for acquiring or using technical know-how

Facts:

•        The assessee-company is a shipping agent handling vessels at various Indian ports

•        Assessee made payment to NSICT

•        NSICT entered into technical service agreement with P & O Australia under which P & O Australia was to provide technical know-how to the assessee

•        AO opined that NSICT was rendering / providing technical and specialized services to its customers including the assessee along with machines and technical manpower and hence tax was deductible u/s 1 94J

Issues: Whether the payment would be covered u/s. 1 94J and liable for TDS?

Decision:

•        Payments made to NSICT were for container movement and there were no professional or technical services involved in the movements of containers

•        The contention was restricted only to the technical services and not towards managerial or consultancy services. AO has not pressed the later part of the Expl. 2, which deals with provision of services of technical or other personnel

•        The expression “other personnel” in this provision must fall within the category of “services of technical personnel”. It cannot be considered as any personnel unrelated to the managerial, technical or consultancy services

•        NSICT personnel, may not have possessed some technical expertise, and hence cannot be considered as “other personnel”.

•        Both the `managerial‟ and `consultancy‟ services are possible with human endeavor, the word technical‟ should also be seen in the same light.

•        There should be direct and live link between payment and receipt/use of technical services/information

Merchant Shipping Services Pvt. Ltd. [2011] (9 taxmann.com 17) (Mum.)

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