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2016 (5) TMI 1534 - AT - Income TaxFees for technical services - services rendered by the assessee for installation of cranes - HELD THAT:- As decided in M/S. SANDVIK AB VERSUS DY. DIRECTOR OF INCOME TAX, (INTERNATIONAL TAXATION) -II, PUNE [2014 (12) TMI 388 - ITAT PUNE] on the basis of the protocol to the DTAA between the India and Sweden the assessee can claim the benefit of the conditions imposed for bringing to tax the fees for technical services in the treaty between the India and Portuguese. We, therefore, hold that on the principle of the most favoured nation (MFN) clauses the payment of ₹ 5.93 Crores received by the assessee company from its Indian subsidies cannot be brought to tax. Fee charged by the assessee from SAPL for installation of crane, upgradation/service of other equipments does not involve ‘make available’ of any know how, technology which can be used by the Indian Associate of assessee independently for its benefit in any manner, whatsoever. Accordingly, we direct the Assessing Officer to delete the addition made on account of ‘fee for technical services’ for installation of machines etc. Royalty’ towards use of CAD/CAM designing software and IT support - contention of the assessee is that the assessee has purchased the basic version of program/software from the third party and after making certain changes/modification to the basic program has standardized the software to be used by the entire group - basic program has been stored in Sweden and the users have limited accessibility to the program for using it without any further modification - HELD THAT:- Authorities below while deciding the issue has not considered the agreement between the assessee and Sandvik Asia Private Limited for the use of program. Thus, we are of the considered view that this issue needs a revisit to the file of AO Assessee shall furnish the details of modifications/changes carried out by the assessee in the program for standardizing the same to be used by all the group concerns and also the terms and conditions for the use of program by SAPL. The Assessing Officer after considering the same shall decide the issue afresh in the light of decision of Co-ordinate Bench of the Tribunal in the case of Sandvik Australia Pty. Ltd. Vs. Deputy Director of Income Tax (International Taxation-II, Pune (supra).
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