Case Law Details
DECIDED BY: ITAT, BANGALORE BENCH `B’, IN THE CASE OF: Sun Micro systems India Pvt. Ltd. Vs. ITO, APPEAL NO: ITA No. 443 & 444/Bang/06, DECIDED ON August 21, 2009
Relevant Extract
15. We have heard both the parties. It is an undisputed fact that the appellant ‘entered into an agreement for availing the logistics services from Sun Singapore; Since . the appellant has not adduced evidence before the lower authorities that all the, payments were in respect of spare parts only and therefore, we are confining :our discussion on the issue as to whether the assessee was liable to deduct tax at source in view of the logistics services agreement entered between the assessee and Sun Singapore.
16. For interpreting the word ‘make available’, it has been held by the Calcutta Bench in the case of DCIT v ITC Ltd. 82 ITD 239 that the interpretation given in similar situation under the agreement entered into between the two countries can be followed while interpreting the same word in respect of DTAA between other two countries. The Tribunal held as under:-
“Accordingly, the same scope of ‘fees for technical services’ as provided for in the Indian OTA As with UK, USA and Switzerland, which is far more restricted vis-a-vis the scope of this expression in Indo-French DTAA, shall also apply under Indo-French DTAA, with effect from the date on which the Indo-French DTAA or such other DTAA enters into force. As all the three DTAAs discussed above came into force on a date earlier than the commencement of the previous year 1995- 96, the scope of technical services, for the purpose of Indo-French DTAA, could not be broader than that envisaged in the above DTAAs. In this view of the matter, the ‘fees for services that are ancillary and subsidiary, as well as inextricably and essentially linked to the. sale of property’ are outside the scope of technical services, so far as Indo-French D TAA is also concerned, even though no such specific exclusion clause is incorporated directly in the treaty itself right from the time Indo- French OTA A came into force. Accordingly, in the year in appeal, the ‘fees for technical services; for the purpose of Indo-French DTAA, did not include ‘fees for services that are ancillary and subsidiary, as well as inextricably and essentially linked, to the sale of property’.” ‘
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