TMI Blog2014 (1) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... - in order to successfully invoke the coverage of training fees by 'make available' clause in the definition of fees for technical services, the onus is on the revenue authorities to demonstrate that these services do involve transfer of technology - That onus in not at all discharged by the Assessing Officer, or even by the learned Departmental Representative. When case of the revenue authorities fails on the tests of the treaty provisions, there is no occasion at all for their leaning upon the provisions of the Income Tax Act - The case of the revenue authorities does not succeed on the provisions of the tax treaty as there is nothing to establish that there is any transfer of technology – thus, the fees for training services of gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also no dispute that in terms of the provisions of Article 13(4)(c) of India UK Double Taxation Avoidance Agreement [206 ITR 235 (Statute)], fees for technical services can be brought to tax in the source country only when such services "make available (emphasis supplied by us) technical knowledge, experience, skill know-how or processes, or consist of the development and transfer of a technical plan or technical design". However, the claim of the assessee that the training services received by the assessee did not "make available" any technical knowledge, experience, skill, know how or process, or consist of the development and transfer of a technical plan or design, has been rejected on the ground that connotations of the expression 'mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to in Article 13(3)(b) - something which is clearly unrelated to the facts of this case, and inferred that since the services are not covered under Article 13(4)(b), "the payment made by the appellant is not covered by Article 13(4) of the DTAA between India and UK". It was thus concluded that "the order passed by the Assessing Officer is not as per Article 13(4) of the DTAA between India and UK". The demands raised under section 201(1) r.w.s. 195 and under section 201(1A) r.w.s. 195 were, accordingly, cancelled. 3. Aggrieved by the relief so granted by the CIT(A), the Assessing Officer is in appeal before us. 4. We have heard the rival contentions, perused the material on record and duly considered facts on record in the light of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng services per se but the training services being of such a nature that it results in transfer of technology. In the present case, the training services rendered by the service provider are general in nature as the training is described as 'in house training of IT staff and medical staff' and of 'market awareness and development training'. Clearly this training does not involve any transfer of technology. In any case, in order to successfully invoke the coverage of training fees by 'make available' clause in the definition of fees for technical services, the onus is on the revenue authorities to demonstrate that these services do involve transfer of technology. That onus in not at all discharged by the Assessing Officer, or even by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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