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2018 (1) TMI 944

Head Note / Extract:
Taxability in India - payments received/to be received by the Applicant for rendering, lighting and searchlight services to the Organizing Committee, Commonwealth Games 2010, Delhi - India-Belgium Tax Treaty - Held that:- Taking a restricted view of the term, it cannot be said that the Applicant had made available technical knowledge, experience, skill, know-how or processes, which enable the development and transfer of a technical plan or technical design, and which enable the person acquiring the services to apply the technology contained therein. The services were not made available to Delhi 2010, in a manner that it acquired the knowhow or the ability to use it, or that the service rendered enabled or empowered it to carry out the task in future all by itself. Make available connotes that it should result in transmitting the technical knowledge such that the recipient could derive an enduring benefit and utilise the same in future on his own without the aid and assistance of the provider. In this case Delhi 2010 only utilised the services for its events during the Common Wealth Games, and the consideration was paid for the same.

Hence, we have to agree that the consideration received by the Applicant for the technical services rendered could not be considered to be in the nature of fees for technical services as referred to in the India Belgium DTAC and the Protocol thereto, as read with the DTAC between India and the Portuguese Republic, which would have otherwise been taxable under Article 12 and Article 7, as the Applicant has a PE in India.

Since it has been held that the Applicant has a PE in India, within the meaning of paragraph 1 of Article 5 of the DTAC between India and Belgium, and further that the same was not in the nature of Royalty or Fees for included services, the consideration received by the Applicant for rendering lighting and searchlight services to Delhi 2010, can only be held to be taxable in India as Business Profits, as per the provisions of Article 7, as also under section 9(1)(i) of the Income tax Act 1961, having accrued and arisen from its business connection and source in India.

Question number 1: Yes. The payments received by the Applicant for rendering lighting and searchlight services to OCCG, would be taxable in India, under the provisions of the Income tax Act 1961.

Question number 2: Yes. The payments received by the Applicant for rendering lighting and searchlight services to the OCCG, earned through its PE in India, would be taxable as Business Profits under Article 7 of the India Belgium DTAC


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