TMI Blog2018 (5) TMI 2033X X X X Extracts X X X X X X X X Extracts X X X X ..... es does not per se mean that the technology or technical knowledge etc are made available‟ to the persons purchasing that services. The identical issue has been considered by the coordinate bench in NQA Quality Systems Registrar Ltd Vs. DCIT [ 2004 (12) TMI 323 - ITAT DELHI-F ] where the UK company was authorized to issue ISO Certification and it was held that such services does not result in making available‟ those services to the recipient. The revenue could not show that how the assessee would be able to make such certification on its own. We are also of the view that as assessee is not an accredited institute to carry out such activities on its own as provider of the services has not made such services available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chnical services are utilized for the purpose of making or earning any income from a source outside India and therefore, payment was not covered by the second exception to section 9(1)(vii)(b) of the Act and therefore, disallowance u/s 40(a)(ia) cannot be made. The Hon'ble Delhi High Court held that the above sum is chargeable to tax as fees for technical services in the hands of the US company as per the provision of Act. As the coordinate bench has held that the above sum is not chargeable to tax under the Act now the Hon'ble High Court directed ITAT to examine the applicability of the treaty and then consequently disallowance u/s 40(a)(ia) of the Act. 3. The ld AR submitted that the payment is made to resident of USA and the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party i.e. CSA International. After the certification the products listed which are certified are eligible to bear the CSA Mark along with the indicators. The KEMA Certification allows the products of the assessee to be freely traded within European Union. When this certification is annexed to the products it shows that it complies with commitment to several procedures relevant to European Union directives. The product complies with such direction is certified by the agency. The agency knows the drills required for testing those product to comply with European Union Directive. It has also knowledge about the standards of the standardization committees of European Union. It also provides the mandatory certification for import in Brazil. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een considered by the coordinate bench in 2-SOT-249 in NQA Quality Systems Registrar Ltd Vs. DCIT where the UK company was authorized to issue ISO Certification and it was held that such services does not result in making available‟ those services to the recipient. The revenue could not show that how the assessee would be able to make such certification on its own. We are also of the view that as assessee is not an accredited institute to carry out such activities on its own as provider of the services has not made such services available to the assessee. In view of this it does not satisfy the criteria laid down under Article 12(4)(b) as fees for included services according to Indo US DTAA, hence, services are not chargeable to tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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