TMI Blog2015 (8) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... y. In coming to such conclusion, the Tribunal also referred to similar findings of the Dispute Resolution Panel (DRP) in assessee’s own case for assessment year 2008-09. Therefore, so far as the payments made to nonresident surveyors of countries with DTAAs having ‘make available’ clause in the Article on ‘Fees for technical services’, the Tribunal deleted the disallowance u/s 40(a)(ia) of the Act. Ostensibly, for the reason that there was no requirement to deduct tax at source on such payments. In so far as the present Grounds of Appeal for assessment year 2005-06 are concerned, the same relate to the payments made to surveyors in UK, Netherland, Singapore which are countries with whom there are DTAAs and their Article on ‘Fees for technic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Liability, Public Product Liability, Engineering, Aviation, Health, Personal Accident, etc.) insurance businesses. In the marine insurance and aviation insurance products offered by the assessee, insurance cover is provided to compensate for the losses/damages to goods/property in transit. To settle overseas claims arising out of such policies, assessee appointed non-resident surveyors to assess the damages, so that the assessee could decide the amount to be compensated to the insured under such insurance contracts. In order to assess the damages, the surveyor s role was to carry out surveys and to assess the extent of damages to the goods belonging to the insured and issuance of survey reports to the assessee on the basis of their asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccessible to the recipient assessee. 4. Assessee carried the matter in appeal before the CIT(A) who has held that the said payment did not constitute either FTS or FIS in terms of the respective DTAAs and therefore, the assessee was not required to deduct tax at source. Further, the CIT(A) also considered the application of Article 12 on business profits of the relevant DTAAs and concluded that in view of the undisputed facts that the non-resident surveyors did not have any Permanent Establishment (PE) in India the payments made by the assessee to such parties were also non-taxable thereof. 5. Further, in relation to the survey fees pays to non-resident surveyors situated in countries with whom India did not have DTAAs, the CIT(A) di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case and the law, the learned CIT(A) has erred in concluding that the term make available means to transfer of technical knowledge, skills, etc. from the service provider to the recipient. 6. Before us, the learned counsel for the respondent-assessee submitted that in the assessee s own case for assessment year 2006-07, the Tribunal vide its order in ITA No. 119/PN/2011 dated 06.05.2013 has considered the aspect of taxability of survey fees paid to surveyors of DTAAs countries with make available clause and also payments to persons of non-DTAAs countries. The Tribunal had considered this aspect in the context of the disallowance made by the Assessing Officer by invoking section 40(a)(ia) of the Act on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lief to the assessee. 7. For other assessment years, countries involved with whom DTAAs having specific make available clause exists are United States of America, Canada, Australia and Portugal, and the dispute in such cases is covered by the aforesaid decision. Similarly, for the assessment years 2006-07, 2007-08, 2008-09 and 2009-10 payments also relate to Spain, Belgium, Israel countries with whom DTAAs contain an MFN clause, which results in applicability of the make available condition. In relation to these countries also the DRP in the assessee s own case for assessment year 2008-09 has held that the same are not liable to be taxed in India as the non-resident surveyor has not made any technical know-how etc. available to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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