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2015 (7) TMI 1314 - AT - Income TaxFees for Technical Service u/s 44D V/S u/s 44BB as services or facilities in the prospecting for or extracting or production of mineral oils - transfer of technical knowledge and skill - payment made by the assesses ‘ONGC’ to foreign company M/s Gaffney Cline & Associates, UK for audit of reserves for Mumbai High field - test of “Make Available” - HELD THAT:- The scope of work of the contract included audit of ONGC’s current Proved, Proved +Probable and Proved +Probable + Possible ultimate Reserves and Reserves of oil condensate, associated gas and free gas. The above services were thus related to the activity of prospecting for or exploration of mineral oils, which are covered under the provisions of section 44 BB of the Act. Moreover, the test of “Make Available” is not satisfied as the assessee could not derive an enduring benefit and utilize the knowledge or know how on his own in future without the aid of the service provider for carrying out identical activities. There is no transfer of technical knowledge and skill enabling the assessee to perform similar activities in future at its own. Hence, the payment cannot be taxed as fees for technical services even otherwise in the light of the proposition of law laid down in the case of “De beers India Minerals Pvt. Ltd.” [2012 (5) TMI 191 - KARNATAKA HIGH COURT]. - decided against revenue
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