9911796707
TMI Blog2015 (3) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... that Assessee had made payment to Colorado Engineering Experiment Station Inc., U.S.A towards calibration and testing of equipment but Assessee had not deducted TDS from the remittance made. A.O was of the view that the payment made by the Assessee were in the nature of technical work and related to engineering and same were utilized by the Assessee and were in the nature of technical services as defined in Explanation 2 of Section 9(1)(vii) of the Income Tax Act and therefore provisions of Section 195 of the Act were applicable and the Assessee should have deducted the tax before making the payment. The submission of the Assessee that the Services provided by the non- resident were not in the nature of "making available" hence Article 12 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entity earning income in India, without disclosing or associating it as to how it is done or how it Can be replicated in future, it can be stated that the technology has not been made available to that entity. In the instant case also, the appellant has not been told how to test calibration. It needs to be emphasized that M/s Colorado Engineering Experiments Station Inc. only tested the calibration and thereafter provided a test report. Hence, it appears to be a case of process of standardization for which the expertise exists with M/s Colorado Engineering Experiments Station Inc. and which has not been passed on to the assessee. The various case laws cited in the context by the appellant appears to be applicable and have been taken into a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2009. 5. Before us, ld. D.R. submitted that though various grounds are raised but the only issue is with respect to deduction of TDS on payment made to foreign parties. 6. Before us ld. D.R. took us through the order of A.O and pointed to the findings of A.O and supported his order. She also relied on the decisions in the case of Ashok Leyland vs. DCIT (2008)119 TTJ 716, in the case of Dy. DIT vs. Tata Iron & Steel Co. Ltd. (2010)132 TTJ 566, in the case of XYZ Ltd. (2012) 348 ITR 20 (AAR), & in the case of Centrica India Offshore Pvt. Ltd. vs. CIT (2012) 348 ITR 45 (AAR). 7. The ld. A.R. on the other hand reiterated the submissions made before A.O and CIT(A) and submitted that the payment made by the Assessee was for procuring servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of ITO vs. Veeda Engineering Research (supra) the Co-ordinate Bench after relying on the decision in the case of DIT vs. Guy Carpenters and Company Ltd. 346 ITR 504 and CIT vs. Debeers India Pvt. Ltd. 346 ITR 467 has held that the condition precedent for invoking the "make available" clause is that the services should enable the person acquiring the services to apply technology contained therein. It further held that unless there is a transfer of technology involved in technical services the "make available" clause is not satisfied. Before us Revenue has not brought any binding contrary decision in its support. We therefore find no reason to interfere with the order of CIT(A) and we therefore dismiss the ground of Revenue. 9. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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