TMI Blog2014 (11) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... d to controvert the findings of CIT(A). Further the case laws relied upon by ld. D.R. are distinguishable on facts and cannot be applied to the facts in present case. We further find that in the case of Veeda Clinical Research (P.) Ltd. (2014 (1) TMI 886 - ITAT AHMEDABAD ) the Co-ordinate Bench after relying on the decision in the case of DIT v. Guy Carpenter & Co. Ltd. [2012 (5) TMI 31 - DELHI HIGH COURT] and CIT v. Debeers India Minerals (P.) Ltd. [2012 (5) TMI 191 - KARNATAKA HIGH COURT] 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 invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking 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 of India U.S.A. treaty were not applicable. The aforesaid contention was not found acceptable to the A.O. A.O was therefore of the view that since Assessee has not deducted TDS, it was liable for tax u/s 201(1) and interest u/s 201(1A) of the Act. He accordingly worked out the total amount at ₹ 6,11,276/-. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A). CIT(A) after considering the submissions of the Assessee deleted the addition by holding as under:- 2.4. The matter has been given due consideration To start with, the case of foreign transaction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 account in coming to the above conclusions. Therefore, considering all the facts and circumstances, it is held that the payment of US$ 31,200 and US$92,300 amounting to ₹ 52,26,667/- cannot be treated as fee for technical services and the same is not coverable u/s.195. Hence, consequently, the assessee could not be held an assessee in default u/s.201(l). 4. Aggrieved by the order of CIT(A), Revenue is now in appeal before us and has raised the following grounds:- 1. The ld. CIT(A) has erred in law and on facts in allowing the appeal of the assessee on the order passed by the A.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions made before A.O and CIT(A) and submitted that the payment made by the Assessee was for procuring services in respect of wet calibration and testing of ultrasonic meters. He further submitted that the services were provided outside India to the payee who is a resident of U.S.A. and does not have any permanent establishment in India within the meaning of Article 5 of India U.S.A DTAA. He further submitted that payee has only given the certificate/report of the calibration to the Assessee and certificate/report does not contain the process of how the testing or calibration was carried out by the payee. He also placed reliance on the decision of ITO v. Veeda Clinical Research (P.) Ltd. ITA NO. 1406/AHD/2009 order dated 28th June, 2013. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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