TMI Blog2018 (5) TMI 1726X X X X Extracts X X X X X X X X Extracts X X X X ..... endering technical handling services to the other airlines in India and has certainly connected with its activity of transportation by way of operating the aircraft - Decided in favor of assessee. - ITA No:- 3819 /Del/2015, ITA No:- 3820/Del/2015 - - - Dated:- 28-5-2018 - SHRI G.D. AGRAWAL, HON BLE PRESIDENT AND SHRI KULDIP SINGH, JUDICIAL MEMBER For The Revenue : Sh. G.K. Dhall (CIT DR) For The Assessee : Sh. Salil Aggarwal AND Sh. Anil K Makhija (Advs.) ORDER PER: KULDIP SINGH, JM Since common questions of facts and law have been raised in both the aforesaid inter connected appeals, the same are being disposed of by way of consolidated order to avoid repetition of discussion. 2. The appellant, DY. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the technical handling charges are required to be taxed in accordance with the provisions of Income Tax Act, 1961 (for short the act ) and not under Article 8 of the DTAA between India and Netherlands and consequently made addition thereof to the total income of the assessee and assessed the same at ₹ 22,32,71,454/- 240756483/- for AYs 2009-10 2010-11 respectively. 4. The Asseessee carried the matter before the Ld. CIT(A) by way of filing the appeals, who has deleted the additions by allowing the appeals. 5. We have heard the Ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s has been determined by the Hon ble High Court, in the Judgment (supra). The Hon ble High Court answered the question of law framed in case of assessee company against the Revenue and in favour of the assessee by returning following findings:- 29. Thus, while interpreting tax treaties and conventions, the emphasis is upon the context- in the instrument itself, and any subsequent agreement between the parties as to the interpretation of the treaty or the application of its provisions. The expression profit from the operation of ship or air-craft in international traffic has not been defined in the Indo-Dutch DTAA, or in the Indo-German DTAA. In Article 8(3) of the DTAA between India arid UK, it is explained. This is a significant di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in India. 31. The terms of the India-UK DTAA as contrasted with the DTAA between India and Germany are dissimilar in some significant ways. The British Airways (supra) decision was based on the following facts- as held by the ITAT: ( i) British Airways provided engineering and ground handling services at IGI Airport, New Delhi to 11 other airlines, at Chennai to 5 other airlines and certain other airlines at Mumbai. It has not availed any services/facilities from any airlines in India. Thus, there was no reciprocity in the agreement entered into between British Airways and other airlines; ( ii) British Airways had a separate establishment and separate office set up to monitor ground handling services and different es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of other enterprise, the incidental lease of aircraft on a charter basis and any other activity directly connected with such transportation These terms are not present in the two DTAAs in the present set of appeals. ( vii) After meeting the requirement of its own flights, the services of employees were required for handling other airlines operation for generating income. 32. Having regard to these facts this Court is of opinion that the amplification of the term operation of aircraft in Article 8 (1) through Article 8 (3), i.e. ...3. For the purposes of this article the term operation of aircraft shall include transportation by air of persons, live-stock, goods or mail, carried on by the owners or lessees or c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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