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2019 (1) TMI 743 - AT - Income TaxTDS u/s 195 - fees for technical services u/s 9 (1) (vii) and fees for included services under Article 12 of the DTAA between India and USA - non deduction of tds - proceedings barred by limitation - Held that:- Facts of the case in hand are in parity with the facts of Bharti Airtel [2016 (12) TMI 1601 - DELHI HIGH COURT], respectfully following the findings of the Hon’ble Jurisdictional High Court (supra) we hold that the order dated 28.03.2013 for A. Y. 2006-07, 2007-08 and 2008-09 are barred by limitation wherein held that the court was conscious of the absence of any limitation period in respect of payments to non-residents, for the purpose of Section 195 read with Section 201. Yet, it was held that proceedings could be initiated within reasonable time. Payments made by the assessee to GX Technology of America - On perusal of the ‘Master Geophysical Data-Use License’ between M/s. GX Technology Corporation (Licensor) and the assessee (Licensee) show that GXT has agreed to grant to the assessee to use certain data from time to time. And data means geophysical and geological the information, derivatives. It is specifically mentioned that the ownership lies with a licensor. As can be seen from the mentioned clauses what is provided by the licensor is the data relating to the geophysical and geological information about the coast of India and is not responsible for the accuracy or usefulness of such data. Thus it is clear that licensor have only made available the data acquired by them and available with them but are not making available technology available for use of such data by the assessee. It has to be understood that 3D seismic is an exploration technique use in the search for oil and gas underground structure. This technique is analogues to ultrasound technology used in the medical field. The maps / designs are nothing but a way to interpret the data and cannot be equated to development and transfer of technical maps and designs as contemplated by the Assessing Officer / CIT (A). The revenue could not prove that there was transfer of Technology to the assessee nor it has been proved that the impugned transactions have made available technical expertise skill or knowledge by processing the data provided by the assessee. Nor it has been proved that the assessee can apply independently and without assistance and undertake such survey independently in future. Assuming that Licensor, rendered services as defined u/s. 9(l)(vii) Explanation 2 of the Act, yet it does not satisfy tire requirement of technical services as contained in India-UK DTAA. We set aside the findings of the Id. CIT(A) and direct the A.O to delete the impugned addition - decided in favour of assessee
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