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2019 (3) TMI 1024 - AT - Income TaxIncome accrued in India - Taxability of the receipts of non-resident in India - fees for technical services as per the provisions of the DTAA or as per the provisions of section 44BB - India and DTAA with Netherlands, Australia, USA & Russia - authorities below treated the aforesaid payments as in the nature of ‘Fee for Technical Services’ (FTS) within the meaning of section 9(1)(vii) read with section 115A of the Act and held that such payments were taxable in India - proof of existence of PE in India - scope of ‘make available’ clause Payment to vendors in Netherlands - Held that:- the services rendered by the vendors to the ONGC in this matter are onetime job performed by the vendors and their job ends with the submission of the investigation report. - the impugned payment does not satisfy the tests of, firstly, for the services which are ancillary and subsidiary to the application for enjoyment of any right, property or information under Article 12(5)(a) of the DTAA, and secondly, the ‘make available’ clause within the meaning of Article 12(5)(b) of the DTAA between India and Netherlands. We accordingly hold that the payment in question does not fall within the scope and ambit of Article 12 of the DTAA between India and Netherlands. It follows that inasmuch as there is no permanent establishment for the services rendered in India, the receipts are not taxable under Article 7 also. Payment of Australian Company - tax protected work order - hiring of export services for feasibility of jack-up/FPSO for BHN well platform. - Held that:- in view of our finding in the preceding paragraphs while dealing with the ‘make available’ clause, for the reasons which are applicable equally to this case also, we hold that for non-satisfaction of the ‘make available’ clause within the meaning of article 12(3)(g) of the DTAA between India and Australia the impugned payment does not fall within the scope and ambit of royalty/FTS under Article 12 thereof and cannot be brought to tax in India. Payment to USA company - blowout control services - Held that:- There is no denial of the fact that in assessee’s own case, while respectfully following the decision of the Hon’ble Apex Court in the case of OIL & NATURAL GAS CORPORATION LIMITED VS CIT [2015 (7) TMI 91 - SUPREME COURT], the coordinate benches of this tribunal had taken a consistent view that the impugned receipts have to be taxed only under section 44BB of the Act and not otherwise. Facts being similar, rule of consistency demands that a coordinate bench cannot take a different view from the one that was taken for the earlier years in assessee’s own case. Nature of services rendered by Russian vendors - services in connection with Underground Coal Gasification (UCG) - Held that:- services rendered by the vendors are in the nature of mining and like project and therefore, such services will not fall within the ambit and scope of ‘Fee for Technical Services’ (FTS), as contemplated in Explanation 2 of Section 9(1)(vii) of the Act and in view of the judgement of the Hon’ble Apex Court in the case of ONGC (supra), such services shall be construed to have rendered in relation to prospecting, extraction and production of mineral oil falling within the meaning of mining, The above observations of the Hon’ble Apex Court in the case in hand and while respectfully following the same we hold that the receipts of National Mining Research Centre, Russia from ONGC are taxable only under section 44BB of the Act.
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