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2019 (10) TMI 909 - AT - Income TaxIncome accrued in India - Additions by treating certain receipts as Fees for Technical Services / Fees for included services within the meaning of Article 12 of India-USA Double Taxation Avoidance Treaty (DTAA) - HELD THAT:- The Fees for included services is defined in Article 12(4) of India-US Tax Treaty, wherein ‘Fees for included services’ means payment of any kind to any person in consideration for rendering of any technical or consultancy services (including through the provision of services of technical or other personnel’ if services are ancillary and subsidiary to the application or enjoyment or right, property or information for which payment is received or make available technical knowledge, experience, skill no-how or process or consist of development and transfer of a technical plan or technical design. We have noted that the assessee has claimed that services rendered are ancillary and subsidiary and inextricably essentially linked with the software supplied. In our view, unless the services satisfy the make available test, the same cannot be taxed as FIS. Further, mere fact that provision of service may require technical input by the person providing services does not per se mean the technical knowledge. In our view, the receipt on account of support and maintenance services are not taxable under Article 12 as the services do not make available technical knowledge, experience, skill, know-how or process or consist of any development and transfer of any design. Levy of interest u/s 234B - HELD THAT:- Assessee is a foreign company and tax resident of USA and as per section 195 of the act taxes deductible at source on all its received and accordingly the assessee was not liable to pay advance tax. Therefore we direct the assessing officer to recompute the tax by following the decision of the jurisdictional High Court in case of NGC network Asia LLC [2009 (1) TMI 174 - BOMBAY HIGH COURT]
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