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2011 (5) TMI 205 - AAR - Income TaxDTAA between India and Srilanka - No PEs in India - Royalty or Fees for technical services - OECD convention serves as a guideline to tax the payment under contract for services under Article 7 of the Treaty. In the absence of the breakup of the consideration it cannot be concluded whether the supply of software is incidental to the provision of services or the provision of services was incidental to the supply of software - Once the instructions were given by the applicant to ICHPL the services rendered are controlled and then ICHPL and Mantec constitute dependent agency of the applicant - Since in the Treaty between Sri Lanka and Yugoslavia the period is 275 days, the period in Article 5 should be read as 275 hence it cannot be concluded that these two concerns are independent agencies and do not constitute dependent agent - The employees of ICHPL cannot be considered to be “other personnel” within the meaning of Article 5(2)(i) of the Treaty. Hence the duration of time spent by such personnel is not to be considered in determining the creation of a PE of the applicant in India - The consideration received is for the use of scientific work, model, plan, and for the use of scientific equipment and scientific experience. The payment falls under the term royalties as per Art 12 of the Treaty - It is true that the treaty does not contain a specific article for the taxation of fees for technical services. In that event reference is to be made to Article 22 of the Tax Treaty - Ruling is given
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