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2021 (10) TMI 1138 - AT - Income TaxTDS u/s 195 - payments abroad of export commission to non-resident the foreign agent for the procurement of export orders - FTS' under the India-France DTAA - disallowance u/s 40(a)(i) - HELD THAT:- As relying on STERIA INDIA LTD. (EARLIER KNOWN AS XANSA (INDIA) LTD.) [2018 (4) TMI 578 - DELHI HIGH COURT] for bringing the services under the net of Fee for Technical Services (FTS) under the India France DTAA, the 'make available' clause has to be satisfied. But in the services rendered by the non-resident of procuring export order for the assessee, no knowledge has been provided to the assessee which could be exploited further by the assessee. In such circumstances, the services rendered by the non-resident cannot be held as 'FTS' under the India-France DTAA. Accordingly, such services will not be chargeable in India in the hands of nonresident under DTAA and, therefore, no liability to deduct tax at source will arise. Consequently, payment to said non-resident is not liable to disallowance under section 40(a)(i) of the Act. - Decided in favour of assessee.
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