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2010 (6) TMI 524 - AT - Income TaxDTAA - Referring to Sec.9(1)(vii) of the IT Act, the learned departmental representative submitted that all types of payment constitute fees for technical services, therefore no deduction of any expenses would be allowed in case the assessee receives any amount in the guise of reimbursement of expenditure - From the above clauses of the agreement it is obvious that the expenditures narrated above are to be reimbursed to the assessee by NHAI in foreign currency and in local currency - Therefore, the expenditure reimbursable by the NHAI is the liability of the NHAI and not that of the assessee - this reimbursable expenditure cannot form part of the fee payable for technical services A per diem allowance for each of the export personnel for every day in which such personnel shall be absent from his home office and shall be outside India for the purpose of service at the daily rates - As a part of the arrangement the US company leases to the Indian company a piece of equipment which allows the Indian company to ensure the level of bacterial deposit on its machinery in order for it to which when cleaning is required - Accordingly, the cleaning services are not included services within the meaning of paragraph 4(a) Regarding 115A - In fact, the expenditure incurred by the assessee in the course of carrying on its activities in India cannot be deducted in view of section 115A(3) - Therefore, section 115A(3) also has no application at all As observed by the CIT(A), fee received by the assessee towards technical services/ consultancy would fall under Article 12 and not under Article 7 - In the result, all the appeals of the Revenue stand dismissed
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