TMI Blog2010 (9) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise. Taxability of services provided by assessee - The contention of the assessee was that the fee received from NHAI is to be treated as "fees for included services" as prescribed in article 12(4) of the Double Taxation Avoidance Agreement (DTAA) between India and Canada - The Tribunal has relied upon the aforesaid Treaty in support of its conclusion - The said article 12(4)(b) does not contemplate transfer of all rights totally or interest in such technical design or plan - Even where the technical design or plan is transferred for the purpose of mere use of such design or plan by the person of the other contracting State and for which the payment is to be made, article 12(4)(b) would be attracted - Decided in the favour of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief facts in this case are that the assessee is a non-resident company engaged in the business of providing consultancy for infrastructure projects. It had entered into an agreement with the National Highway Authority of India (NHAI) and under the said agreement the assessee was to provide technical drawings and reports to NHAI to enable them to use the said technology for its infrastructure projects, which was funded by the World Bank. The scope of the work was to carry out detailed project report as a consultant. The assessee had to investigate the availability and viability of various modern technologies to ensure most economical cost estimate without affecting the quality of work. The entire report was to be submitted for widening of NH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph (4) of article 12. This provision reads as under ([1998] 229 ITR (St.) 44, 58) : "(4) For the purposes of this article, `fees for included services' means payments of any kind to any person in consideration for the rendering of any technical or consultancy services (including through the provision of services of technical or other personnel) if such services : (a) are ancillary and subsidiary to the application or enjoyment of the right, property or information for which a payment described in paragraph (3) is received ; or (b) make available technical knowledge, experience, skill, know-how, or processes or consist of the development and transfer of a technical plan or technical design." 8. It is not in dispute that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The aforesaid contention of Mr. Sabharwal cannot be accepted having regard to the language of clause (b). In fact, Mr. Sabharwal wants us to design clause (b) in the following manner (i) make available technical knowledge, experience, skill, know-how, or processes or consisting of development ; and (ii) transfer of a technical plan or technical design. He thus, wants disjunction of the sentence with the word "and" whereas according to us, after understanding it properly, it is inferred "or" where the sentence would be disjuncted. If we read clause (b) in the manner, Mr. Sabharwal wants us to read, then the words "consist of development" will have no meaning and would lead to ambiguity. Our interpretation is supported by the example ..... X X X X Extracts X X X X X X X X Extracts X X X X
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