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TMI Blog2023 (7) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... ther on the facts and the circumstances of the case and in law, Hon'ble Tribunal has failed to notice that the above payments are covered under the definition of "Royalty" under India-U.K. DTAA, as payment received for "use of, or right to use, of process" and "use of, or the right to use, any industrial, commercial or scientific equipment" under article 13(3) of India- U.K. DTAA?" c) "Whether on the facts and the circumstances of the case and in law, Hon'ble Tribunal has erred in applying decision of ITAT Mumbai in the case of Kotak Mahindra Primus Limited, Whereas Madras High Court in the case of Verizon Communications Singapore Pte Ltd. Reported in [2014] 361 ITR 575, in similar situation has held such payment to be covered under defi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e services to "make available" technical knowledge, experience, skill, know-how or process to the recipients. Respondent-Assessee did not provide any technical knowledge, skill etc. to Vodafone India or BSNL. It is also Assessee's case that by rendering connectivity services Assessee-Respondent does not enable its Indian customers to apply the technology used by Respondent-Assessee in providing such services. Hence, Respondent-Assessee cannot be said to "make available" connectivity services to its Indian customers as per Article 13 of the DTAA. Even the amount received was in the form of service charges payment. Moreover, there was no human intervention and in the absence of human intervention payments cannot be characterised as fees for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egregation of fixed and variable price was not unusual. The customer was only paying for service and not for the used equipment involved or for any scientific work or patent or trademark etc. The Tribunal after considering Article 13 of the DTAA rightly concluded that the payment for the service can be brought to tax only when it makes available the technology in the sense that recipient of service is enabled to perform the same service without recourse to the service provider. In order to be covered by the provisions of Article 13 of the DTAA not only the services should be of technical in nature but the same should result in making the technology available to the persons receiving the technical services. Tribunal has correctly held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chnology or a process has been put to operation automatically, wherein it operates without much human interface or intervention, then such technology per se cannot be held as rendering of technical services by human skills. Where there is a standard facility made available for public at large, without giving any special or exclusive services whether to a particular client or class of clients, then it cannot be brought within the ambit of technical services as stipulated in Explanation 2 to section 9(1)(vii). Therefore, on facts, even these grounds of the Revenue were correctly rejected in coming to a finding that no technical services had been provided by the Assessee to treat the subscription fees as to be in the nature of fees for technic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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