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2015 (5) TMI 873 - DELHI HIGH COURT

2015 (5) TMI 873 - DELHI HIGH COURT - [2015] 375 ITR 85 (Del) - Liability to deduct tds - agreements between the assessee and non-residents are not fee for technical services within the meaning of Section 9(1)(vii) so as to oblige the assessee to deduct tax at source under Section 195 as held by ITAT - Held that:- ITAT was unduly influenced by all the regulatory compulsions which the assessee had to face. Besides international convention and domestic law that mandated aircraft component overhaul .....

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e and ability required in such cases is not only exacting but specific, in that, aircraft supplied by manufacturer has to be serviced and its components maintained, serviced or overhauled by designated centres. It is this specification which makes the aircraft safe and airworthy because international and national domestic regulatory authorities mandate that certification of such component safety is a condition precedent for their airworthiness. The exclusive nature of these services cannot but l .....

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named as "success fee" by the assessee has been paid to the NRC. In the present case, the ITAT held that the overwhelming or predominant nature of the assesseeís activity was to wet-lease the aircraft to LCAG, a foreign company. The operations were abroad, and the expenses towards maintenance and repairs payments were for the purpose of earning abroad. In these circumstances, the ITATís factual findings cannot be faulted. The question of law is answered in favour of the assessee and against the .....

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hether the Income Tax Appellate Tribunal (ITAT) has rightly interpreted the agreements between the assessee and non-residents and is right in holding that payments made by the assessee to the non-residents are not fee for technical services within the meaning of Section 9(1)(vii) of the Income Tax Act, 1961 so as to oblige the assessee to deduct tax at source under Section 195 of the Act from such payments? 2. Whether the ITAT was right in holding that payments made by the assessee fell within t .....

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the DGCA to operate these aircrafts on international routes only. The assessee s Boeing 727-200 aircrafts were not used by any other airline in India. Consequently there were no facilities in India for their overhaul repairs. However, according to DGCA directives various components and the aircraft itself had to undergo periodic overhaul repairs before the expiry of the number of flying hours prescribed for such individual components. Such overhaul repairs were permissible only in workshops aut .....

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ion. The lessee is free to direct the flight operations by naming destinations in advance and load any lawful cargo for carriage. The lessee pays rental on the basis of number of flying hours during the period subject to a minimum guarantee as per the terms of the charter party. 4. India is a party to several International Conventions governing aircraft maintenance. Under the Aircraft Act, 1934 read with Aircraft Rules, 1937, the necessary regulatory and enforcement powers have been delegated by .....

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for its business. The assessee's engineering department would track the flying hours of every component; and before the expiry of flying hours, the component needing overhaul/repairs or needing replacement would be dismantled by the assessee's engineers and flown to Lufthansa Technik s (a German company, hereafter Technik ) workshops in Germany. The parts were supplied by Technik under separate agreement of sale, loan or exchange. In due course, the overhauled component would be dispatch .....

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ing cargo mainly to and from Sharjah to Mumbai, Delhi, Kathmandu, Lahore, Calcutta, Chennai, Bangalore and Colombo. As the DGCA license permitted operations on international routes only, the aircrafts were not utilized by LCAG for carriage of cargo within India. LCAG had integrated its international air transport business at Sharjah with its worldwide network. The cargo brought from South Asian Countries would be put into wide-body aircrafts and flown from Sharjah to various destinations in Euro .....

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ng any technical or advisory services to the assessee. Likewise, the assessee's technical personnel did not participate or involve themselves in the overhaul repairs carried out abroad by Technik or other foreign workshops. The services enumerated in attachments 'A' and 'B' of the Technik Contract are described below:- (a) Provision of Personnel (b) Engineering Support Services including: i) Engineering work which includes air worthiness. ii) Directives and Alert services iii .....

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hnical services as defined in Section 9(1)(vii). The assessee stressed that in terms of International Conventions, every component containing rotable parts is allotted a unique identity number and its historical record is maintained in a tag which accompanies the component throughout its life. Such component including engines needs to be overhauled periodically in accordance with Boeing's manual. The assessee used to send components with tag to the workshop abroad. Technik's workshops in .....

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as carried out the prescribed overhaul repairs. It is evident from the invoices of Technik, ATC Lasham and others that those workshops replace parts at their own discretion in the course of overhaul of a component. The replaced parts, however, come with tags giving their unique identity number and history. They also issue warranty for free-of-defect functioning of the component for the requisite number of flying hours. It was argued that the repair work carried out by Technik etc. was not in the .....

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d 'consultancy services as defined under Explanation 2 to Section 9(1) (vii)(b) of the Act. 8. After considering the record, including the agreement with Technik, the Assessing Officer (AO) noticed that no tax was deducted at source on payments to Technik and no application under Section 195(2) was filed. The AO held that payments were in the nature of 'fees for technical services' defined in Explanation 2 to Section 9(1)(vii)(b) of the Act, and were, therefore, chargeable to tax on .....

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Netherlands, Singapore and Thailand could be taxed as business profits only and not as fees for technical services keeping in view the relevant provisions of the DTAAs with those countries too was rejected. The AO passed orders under Section 201 of the Act deeming the assessee to be an assessee in default for the financial years 1997-98 to 1999-2000, and levied tax as well as interest under Section 201 (1A) of the Act. 9. On appeal, the CIT (A) rejected the assessee's contention that the pa .....

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vices' and therefore were subject to TDS. With reference to payments made to residents of UK and USA, the CIT (A) held that they were not in the nature of fees for technical or included services under Article 12 of the DTAA read with the Memorandum of Understanding with USA which equally applied to the UK Treaty. Payments made to residents of USA and UK were held to be 'business profits' and since those companies did not have a PE in India, their income was not chargeable to tax. The .....

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Technik Agreement shows that apart from above quoted general clauses, it also contains three other independent and distinct sections. Each such section is by itself a self-contained contract dealing with distinct subject matter stipulating independent and separate terms and conditions. These three sections are: a) 'Attachment A' of the Agreement dealing with 'Engineering support services' on request including provision of training. b) 'Attachment B' of the Agreement rela .....

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he assessee. The assessee has emphasized that none of these services was availed of and therefore no payment was made on this account. All the invoices raised by the Technik were produced before the lower authorities and no instance of payment for training or other optional support services as per Attachment 'A' and 'B' of the contract has been brought out either by the Assessing Officer or by the CIT(A). Ld. DR has also not cited any instance of payment for any of the optional s .....

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l and could be performed on specific request by the assessee. On the facts brought out before us such option was not exercised by the assessee. Ld. DR also could not indicate any clause in the Technik Agreement which would oblige the assessee to pay the fees towards optional services even if such an option is not exercised by the assessee. In the circumstances, we hold that CIT (A) was not correct in making attachments 'A' and 'B' of the Technik Contract as the basis for concludi .....

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bove components repair/overhaul in accordance with Article 2 hereof. 1.3 Lufthansa Technik shall be entitled to subcontract repair and overhaul of components in accordance with Article 4 of the GTA. 1.4 Each overhauled component will be redelivered with the following documentation: 1. JAA form (Airworthiness Approval Tag) 2. Workshop Report 3. Test Reports if applicable 2. MATERIAL PROVISIONING 2.1 Repairable and consumables required for the work to be performed on the Customer's components .....

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nnex B. 2.4 If specially requested by the Customer and, if Lufthansa Technik's stock permits such supply, Lufthansa Technik shall provide repairable out of its stock on 1.1 basis using Lufthansa Technik's form Exchange 1.1 Agreement Annex A. 3. SHIPPING 3.1 Any shipments of the customer's components to and form the respective Lufthansa Technik Base shall be effected at the Customer's own risk and expense. 4. CHARGES Article 4 For the work performed pursuant to Article 1 hereof, t .....

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tion costs, if any. In case of repair work the Customer shall pay a minimum charge per event of DM 1,000,-." Upon an analysis of the various terms of the agreement and the actual services provided by Technik and availed by the assessee, it was held that the amount received by the former was a routine business receipt and not technical fee: "it cannot therefore be said that Technik rendered any managerial, technical or consultancy service to the assessee." 11. Upon a consideration .....

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mum guaranteed rental 240 block-hours per month in accordance with Clause No. 2.2 read with, Annexure 3 of the contract. (v) The amount of leasing revenues depends on the number of flying hours utilised by LCAG and not on the value of freight earned by the LCAG. (vi) The assessee is also assured of minimum rental income in the event LCAG does not actually use the aircrafts. 48. In this view of the matter, we are satisfied that the assessee's immediate source of income is from the activity of .....

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Revenue is not correct in identifying this leasing activity with the transportation activity of the lessee, LCAG, Germany." The ITAT concluded, on the facts as follows: "The sources from which the assessee has earned income are therefore outside India as the income earning activity is situated outside India. It is towards this income earning activity that the payments for repairs have been made outside India. The payments therefore fall within the purview of the exclusionary clause of .....

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nual Accounts of the company for three years (at pps. 122, 132, 143 of the Paper Book). As per the annual accounts, the direct expenses are mainly on account of lease rent, travelling and training, foreign office expenses, maintenance, interest on aircrafts acquired under hire-purchase, and depreciation. The aggregate of the direct expenditure incurred outside India works out to 55%, 81% and 67% of the total expenses debited to Profit & Loss Account of each of the three years. It is submitte .....

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the rival submissions and we have also gone through the annual accounts of the assessee for the Financial Years ended 31.3.98, 31.3.99 and 31.3.2000 respectively, filed in the Paper Book. The question whether a business is carried on in India or outside India cannot be decided by the situs of the Head Office or the place of control of the business. The assessee, being an Indian company, would have the Head Office or the place of control in India. We agree that the assessee's business of wet- .....

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siness, both on the revenue and the expenditure side. For this legal proposition, we are supported by the decision of the Supreme court in the case of Anglo French Textile Company Ltd. v. CIT (1954) 25 IRT 27, where relying on an earlier judgment of the larger bench in the case of CIT v. Ahmed Bhai Umar Bhai and Co. (18 ITR 472)… ********* ******* ***** 54. The Ld. Counsel for the assessee fairly states that he has no objection to the apportionment on the basis of the above-quoted decisio .....

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e we have already held that the payments made to Technik and other foreign companies for maintenance repairs are not in the nature of fees for technical services as defined in Explanation-2 to Section 9(1) (vii)(b). Further, in any event these payments are not taxable for the reason that they have been made for earning income from sources outside India and therefore fall within exclusionary clause of Section 9(1) (vii)(b). 56. In view of our decision allowing the main ground relating to chargeab .....

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gued that the assessee defaulted in not deducting tax before making payments in accordance with the provisions of Section 195(1) of the Act and therefore, it could not plead that the receipts in the hands of the non-residents is not chargeable to tax under the Act. Counsel also stressed that if the assessee was of the view that no tax was deductible on the payments made to foreign companies it should have made an application with the AO under Section 195(2) of the Act. Stating that Section 195(1 .....

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ssee with Technik. It was contended that payments for various services were specified in the Agreement on annual basis while other charges are on man hour basis. The charges were for specialized and sophisticated services which fell squarely within the ambit of "fees for technical services" as envisaged under Explanation 2 to Section 9(1)(vii) of the Act. He drew our attention to the various findings recorded in the orders of the CIT (A). 13. Mr. Madan next submitted that to fall under .....

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ter only has priority over others in use of the aircraft. Crucially, there was no compulsion restricting the assessee to wet-leasing the aircraft to third parties. The lower authorities found that aircraft were wet-leased to LCAG and also to other parties. Therefore it could not be said that the revenues were earned wholly from a source outside India. The findings of the AO that since the income from leasing of aircrafts is assessed to tax in India, the source of income is situated in India were .....

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i) of sub-section (1) and shall be included in the total income of the non-resident, whether or not,- (i) the non-resident has a residence or place of business or business connection in India; or (ii) the non-resident has rendered services in India." It was submitted that any doubts as to whether the assessee was obliged to deduct tax at source, is set at rest by virtue of Section 9 (2) which clarifies that income of a non-resident is deemed to arise in India and "shall be included in .....

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d the relevant clauses of the agreement with it. The service obtained from that entity was in line with Attachment C, which was concerned only with overhaul and repair. 16. It was urged that by reason of Section 5(2) of the Act, a non-resident is liable to tax in India in respect of all income from whatever source derived which - (a) is received or is deemed to be received in India by or on behalf of such person; or (b) accrues or arises or is deemed to accrue or arise to him in India during the .....

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should not only be rendered in India, but also utilized in India. It was argued that to nullify the said decision Parliament enacted Explanation to Section 9(2) by Finance Act, 2007 which was again substituted by Finance Act, 2010 w.e.f. 1.06.1976. The effect of those amendments by enactment of Section 9(2) is to clarify beyond doubt that income by way of, inter alia, fees for technical services would be deemed to accrue or arise in India and consequently taxable in India, in the hands of the n .....

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to accrue or arise in India. It was highlighted that the Explanation to Section 9(2), added by Finance Act, 2010 w.e.f. 1.06.1976 merely clarifies the source rule, i.e., income is deemed to accrue or arise in India where the payer is an Indian resident and the situs of services, i.e. the place where services are performed is immaterial. The Explanation is not intended to take away the exception provided in clause (b) to Section 9(1)(vii) of the Act. The assessee submits that there is no conflic .....

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ain the meaning and intendment of the Act itself, where there is any obscurity or vagueness in the main enactment or to clarify the same so as to make it consistent with the dominant object which it seems to sub-serve. It cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming a hindrance in the interpretation of the same. Counsel lastly relied on the recent Supreme Court judgment interpreting Section .....

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rative that the payer is resident in India and that the services are utilized in India. As a sequitur, where the resident utilizes the services provided by the non-resident service provider for purpose of earning income from any source outside India, payment for such services is not deemed to accrue or arise in India and hence not taxable in India. The Supreme Court also dealt with the two principles, namely situs of residence and situs of source of income and pointed out that the Source State T .....

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t fall within the expression technical service and that Section 9(1)(vii) did not apply at the threshold. To arrive at this conclusion, the ITAT held that the assessee had no say in the work done by Technik and did not know what kind of repairs were carried out and that none of its employees ever visited Technik s facility in connection with such work. The ITAT surmised that since what the assessee asserted is that the overall components are returned duly certified by Technik that it had carried .....

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9(1)(vii)(d). 20. This Court is of the opinion that the ITAT was unduly influenced by all the regulatory compulsions which the assessee had to face. Besides international convention and domestic law that mandated aircraft component overhaul, the manufacturer itself - as a condition for the continued application of its warranty, and in order to escape any liability for lack of safety, required periodic overhaul and maintenance repairs. Unlike normal machinery repair, aircraft maintenance and repa .....

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safe and airworthy because international and national domestic regulatory authorities mandate that certification of such component safety is a condition precedent for their airworthiness. The exclusive nature of these services cannot but lead to the inference that they are technical services within the meaning of Section 9(1)(vii) of the Act. The ITAT s findings on this point are, therefore, erroneous. This question is accordingly answered in favour of the Revenue. Question No.2. 21. This quest .....

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panies and consequently the source of income is outside India. Secondly, leasing revenue was received in convertible foreign exchange directly from foreign charterers through wired transfer in assessee s account denominated in foreign currency but maintained in India with the permission of the RBI and that the remittances to the foreign company for repairs had a direct nexus with the income. It was underlined here that payments to Technik for maintenance and repairs was essential and crucial for .....

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um guaranteed block hours. The assessee relied upon the revenue earned on a comparative basis from LCAG and other wet-lease charters. The said chart is reproduced below:- F.Y. 1997-98 F.Y.1998-99 F.Y.1999-00 Traffic Revenue from wet lease of aircraft s received from Lufthansa Cargo AG (Germany) 318,513,565 854,612,518 657,569,352 Singapore Airlines (Singapore) - 67,352,333 41,020,195 Pacific Asia Cargo Airlines (Indonesia) - 26,125,451 37,769,600 Shareef Express Travels (UAE) - 2,038,548 1,065,8 .....

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y, the payment made to Technik could not be excluded. The Revenue also relied on the retrospective amendment to Section 9(2) made in 2010 to say that regardless of the question as to whether the expenditure is towards income earned abroad, the payee is deemed to have earned income in India by virtue of the amendment. 23. Before proceeding to analyse the merits of the rival contentions, it would be essential to extract the stipulations in the contract between LCAG and the assessee. They are as fo .....

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es set forth in the flight schedules hereunder. LCI shall maintain the Aircraft during the term of this Agreement in accordance with LCI s maintenance program and schedule as approved by the Civil Aviation Administration of India or any such program or schedule mutually agreed upon between the parties. All flights operated under this Agreement shall be performed under the operational control of LCI in all respect. LCI shall obtain and maintain throughout the term of this Agreement all necessary .....

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ned, LCI will use its utmost efforts to re-market the capacities and flights not to be utilized by LCAG. Should LCI be able to sell any such agreement the following terms and conditions apply for the calculation and payments of any charges by the LCIL for the capacity provided under the agreement. 1. Block Hour is defined as the period of time operated by the Aircraft gate to gate expressed in hours commencing when the Aircraft moves from the blocks to begin a flight and ending when the chocks h .....

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er 1, 1997: US-$ 1,630.00 (US $ One Thousand Six Hundred and Thirty) Per Block Hour. The aforementioned price shall apply to all block hours performed by LCI up to a total of 960 (nine hundred and sixty) Block Hours performed under this Agreement per calendar month. Unless otherwise agreed upon in this Capacity Agreement, LCAG shall guarantee to LCI a payment totaling the amount of 960 (nine hundred and sixty) Block Hours performed under this Agreement per calendar month. Should the number of Bl .....

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t;For the removal of doubts, it is hereby declared that for the purposes of this section, where income is deemed to accrue or arise in India under clauses (v), (vi) and (vii) of sub- section (1), such income shall be included in the total income of the non-resident, whether or not the non-resident has a residence or place of business or business connection in India." The Finance Act, 2010 substituted the same explanation with effect from 1.6.1976. It now reads as follows: "Explanation. .....

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eavor - through the later retrospective amendment, was to target income of non-residents. But importantly, the condition spelt out for this purpose was explicit: where income is deemed to accrue or arise in India under clauses (v), (vi) and (vii) of sub- section (1), such income shall be included in the total income of the non-resident... whether or not,- (ii) the non-resident has rendered services in India." The revenue urges that the fiction created by the said amendment is to do away wit .....

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ificatory and for a good measure retrospective at that, nevertheless there is nothing in its wording which overrides the exclusion of payments made under Section 9(1)(vii)(b). The Supreme Court clarified this in G.V.K Industries (supra): "22. The principal provision is Clause (b) of Section 9(1)(vii) of the Act. The said provision carves out an exception. The exception carved out in the latter part of clause (b) applies to a situation when fee is payable in respect of services utilized for .....

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clarify, where the payer is located. The Clause further mandates and requires that the services should be utilized in India. ************* ********** *********** 24. The two principles, namely, "Situs of residence" and "Situs of source of income" have witnessed divergence and difference in the field of international taxation. The principle "Residence State Taxation" gives primacy to the country of the residency of the assessee. This principle postulates taxation of .....

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n, that is, a person resident in another country. The aforesaid principle sometimes is given a different name, that is, the territorial principle. It is apt to state here that the residence based taxation is perceived as benefiting the developed or capital exporting countries whereas the source based taxation protects and is regarded as more beneficial to capital importing countries, that is, developing nations. Here comes the principle of nexus, for the nexus of the right to tax is in the sourc .....

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made to the non-resident would be covered under the expression "fee for technical service" as contained in Explanation (2) to Section 9(1)(vii) of the Act. The said expression means any consideration, whether lumpsum or periodical in rendering managerial, technical or consultancy services. It excludes consideration paid for any construction, assembling, mining or like projects undertaken by the non-resident that is the recipient or consideration which would be taxable in the hands of t .....

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ffered their services. Their services rendered included, inter alia, financial structure and security package to be offered to the lender, study of various lending alternatives for the local and foreign borrowings, making assessment of expert credit agencies world-wide and obtaining commercial bank support on the most competitive terms, assisting the appellant company in loan negotiations and documentations with the lenders, structuring, negotiating and closing financing for the project in a coo .....

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ategory of technical and consultancy services are to some extent overlapping because a consultancy service could also be technical service. However, the category of consultancy services also includes an advisory service, whether or not expertise in technology is required to perform it." 35. In this context, a reference to the decision in C.I.T. V. Bharti Cellular Limited and others 2009 (319) ITR 139 would be apposite. In the said case, while dealing with the concept of "consultancy se .....

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tions, consideration, conferring with someone, conferring about or upon a matter. Consult has also been defined in the said Dictionary as "ask advice for, seek counsel or a professional opinion from; refer to (a source of information); seek permission or approval from for a proposed action". It is obvious that the service of consultancy also necessarily entails human intervention. The consultant, who provides the consultancy service, has to be a human being. A machine cannot be regarde .....

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