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From the Courts »
  Vatsala Shenoy vs. JCIT (Supreme Court)
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 Pr. Commissioner Of Income Tax-06 Vs. Moderate Leasing And Capital Services Pvt. Ltd.
 ITO vs. Vikram A. Pradhan (ITAT Mumbai)

Commissioner Of Income Tax-Iv Vs. M/s. Grup Ism P. Ltd.
June, 22nd 2015
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Reserved on: 17.03.2015
                                               Pronounced on: 29.05.2015

+      ITA 325/2014
       COMMISSIONER OF INCOME TAX-IV                  ......Appellant
                  Through: Sh. Rohit Madan, Sr. Standing Counsel with
                  Sh. Ruchir Bhatia and Sh. Akash Vajpai, Advocates.

               Versus

       M/S. GRUP ISM P. LTD.                     ........Respondent
                 Through: Sh. Kaanan Kapur and Sh. Bhushan Kapur,
                 Advocates.

       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE R.K. GAUBA

MR. JUSTICE S. RAVINDRA BHAT

%
1.     The following questions of law were framed by this Court at the time
of admission of this appeal under Section 260A of the Income Tax Act,
1961 ("the Act"):

      (1)     Did the ITAT fall into error in holding that the payment
      incurred by the assessee to the extent of ` 94,31,826 to the UAE
      concerns was not technical service in terms of Second Explanation to
      Section 9 (1) (vii) read with Section 194J?

      (2)    Did the ITAT fall into error in holding that Article 14 of the
      Double Taxation Avoidance Treaty applied to the UAE concerns in the
      circumstances of the case?




ITA 325/2014                                                          Page 1
2.     During the course of assessment proceedings, for AY 2004-05, the
Assessing Officer (AO) noticed that the assessee Company made payment
of ` 56,54,963/- to M/s. CGS International, UAE ("CGS International") and
` 37,76,863/- to M/s. Marble Arts & Crafts LLC, UAE ("Marble Arts &
Crafts") (aggregating to ` 94,31,826/-). The AO noted that no TDS had been
deducted by the assessee while making the payment to the said two foreign
concerns. Accordingly, AO required the assesse to show cause why the said
expenditure should not be disallowed under Section 40(a)(i) of the Act. The
assessee contended that the payments were made towards commission and
that neither of these concerns had any business in India nor had they filed
any Income Tax Return in India. The copies of accounts of these two
concerns filed by the assessee revealed that the payment was made on
account of consultancy charges and it had debited the said sum under the
head "consultancy charges". Independent confirmation of CGS International
also stated that it had received the payment towards consultancy services.
The assessee further referred to Article 14 of Double Taxation Avoidance
Agreement (DTAA) and contended that in view of such stipulation it was
not required to deduct TDS. The AO rejected the assessees contentions; he
was also influenced by the fact that the assessee did not produce copies of
the agreements with the two foreign concerns. Thus, the AO disallowed the
amounts.

3.     Before the CIT (A), the assessee contended that what was paid to the
two foreign concerns was not consultancy fee. As regards Marble Arts &
Crafts, the services included guiding the assessee about the procedural
aspect of obtaining payment, checking the format and documentation of




ITA 325/2014                                                          Page 2
invoice and other papers to be submitted for approval to the Works
Department, Abu Dhabi; checking invoices submission of invoices to
respective authorities and obtaining their approval, follow up with Works
Department, Finance Department, Banks and other authorities for approval
of invoices, and obtain staff approval and letters of credits. Marble Arts &
Crafts was to be paid a fee of 5% of gross amount paid by Works
Department to the appellant. In addition, the assessee agreed to pay one time
fee of US$ 50000 to Marble Arts & Crafts for identification and selection of
UAE national as a partner for the appellant in connection with supply of
marble to the Works Department in UAE. As regards CGS International, the
services included soliciting business for the assessee in various parts of the
world except India, identifying, introducing and providing details of
industries, companies, individuals and investors etc. CGS International was
to be paid in terms of the agreement a fee equivalent to 15% of the gross
value of the contract. Clause 7 of the agreement dated 05.04.03 with Marble
Arts & Crafts provided for payment of US$ 50000 as fees towards
identification and selection of UAE national as a partner for the appellant
and subsequent assistance in framing legal documentation. The copies of
agreements which formed the basis for payment to Marble Arts & Crafts and
CGS International were furnished.

4.     The CIT (A) took into consideration the facts and noticed that the
assessee was awarded project management consultancy by the Works
Department of the Emirate of Abu Dhabi. It was to act as a consultant for
project management of marble works for Shaekh Zayed Bin Sultan Al
Nahyan mosque at Abu Dhabi. The contract required it to assist in quality




ITA 325/2014                                                            Page 3
control measures for procurement of while marble from Makrana Rajasthan,
to certify the quality, quantity and measurement by making selected block
before transportation to Abu Dhabi, and undertake supervision of the cutting
of the blocks at the site of Shaekh Zayad mosque. The assessee would
supervise and evaluate the proposals of marble suppliers and shortlist and
identify potential mines, and also supervise block quarrying and selection of
blocks. Moreover it was required to supervise the loading of the blocks into
containers, sealing of the containers and transporting the containers to the
project site at Abu Dhabi. As regards the Abu Dhabi component of the
agreement with the Works Department, the assessee was to act as consultant
for procurement of marble, its processing, cutting etc. The CIT held that In
short, the contract was for organizing procurement of Makrana marble from
India and supervising its processing at Abu Dhabi. The first part of the
contract was procurement of marble from India and the second was
processing the marbles i.e. conversion thereof to the desired specification at
Abu Dhabi. It was further held that consultancy charges in terms of the
assessees accounts were paid in all to 54 parties for services such as
landscape design, architectural design, conservation services, engineering
services, soil engineering work, quality server, electrical plumbing and
HVAC services, EDP services, acoustic services, research services, liaison
services, stone services. All the payments barring two were made to
concerns in India. However, in respect of CGS International, payments were
made for 'agent in UAE work", and Marble Art & Crafts were paid for
"liaison services in Abu Dhabi". Before the CIT (A), when the assessee
produced copies of the agreements with the UAE companies, the AO
objected. However, the CIT (A) was of the opinion that such documents had







ITA 325/2014                                                            Page 4
to be examined, because they would be decisive in verifying whether the
payments shown in the ledger of the assessee and other books were in
accordance with the arrangement with the foreign concerns. It was further
held that in respect of CGS International, @ 15% as per agreement, the
assessee accounted for a total payment of ` 45,31,044/-. In respect of
Marble Arts & Crafts, remuneration for the liaison services at 5% of the
invoices realized, the appellant incurred an expense of ` 15,12,613/- and a
further amount of ` 22,64,240/- by way of charges for identifying a UAE
national as its partner. The agreement dated 5.4.2003 between the assessee
and Marble Arts & Crafts contemplated 5% of the gross payments received
from the Works Department in terms of an agreement dated 12-1-2003. The
linkage between the payment and the amounts received from the foreign
client therefore was established. The records also showed that an amount in
excess of `3 crores were received from such contract with the Works
Department. Marble Arts & Crafts was entitled to receive its consideration
for assistance in documentation, guidance and liaison with various
departments towards assisting the assessee in its work in the UAE. The
contract with CGS International on the other hand, dated 25.11.2002,
contemplated assistance by the latter, to the assessee to procure clients and
market its services; for this, it was to receive 15% of the amounts received
from the clients so introduced. The assessee paid ` 45,31 ,044/- on this
score. In the background of these facts, the CIT(A) held that the payment
made by the assessee to the two UAE entities would not come within the
purview of ,,technical services, as defined in Explanation 2 to Section
9(1)(vii) of the Act and consequently, the provisions of Section 9(1)(vii)
were not attracted in the assessees case. Further, the CIT(A) held that




ITA 325/2014                                                            Page 5
Article 14 of the DTAA with UAE, dated 18.11.1993, is applicable in the
facts of the case and that the AO could not have denied the applicability of
the said on the sole premise that the two UAE entities are companies.
Accordingly, since the remittances to such non-resident entities are liable to
be taxed in the UAE, no TDS was required to be deducted.

5.     The Income Tax Appellate Tribunal (hereafter referred to as "ITAT")
dismissed the revenues appeal and affirmed the CIT(A)s order. Hence, the
revenue has preferred the instant appeal.


Submissions of Parties
6.     Mr. Rohit Madan, learned counsel for the revenue submits that the
CIT(A) and the ITAT erred in their analysis of the payments made to the
two UAE entities, and that the services provided by these entities clearly and
unequivocally qualify as ,,technical services as defined in Explanation 2 to
Section 9(1)(vii) of the Act. Learned counsel states that the agreements
dated 25.11.2002 and 05.04.2003, entered into with CGS International and
Marble Arts & Crafts respectively, cannot establish that services were in fact
rendered by the two foreign concerns to the assessee whereas the CIT(A)
and the ITAT have placed sole reliance on the said agreements for the same.
Specifically, agreement dated 05.04.2003 could not have been relied upon
for payments made prior to 31.03.2003. In fact, that the expenditure was
incurred wholly or exclusively for the assessees business also cannot be
established.
7.     The revenue further submits that the assessee failed to establish the
authenticity and genuineness of the agreements on which reliance has been




ITA 325/2014                                                            Page 6
placed by the CIT(A) and ITAT. The learned counsel heavily relies on the
fact that CGS International had independently confirmed that it received
consultancy charges from the assessee during the year under consideration,
as well as the assessees treatment of these charges as such. Lastly, it is
submitted that the CIT(A) and ITAT erred in applying Article 14 of the
DTAA, and endorsed the AOs determination on this issue.
8.     Mr. Kanan Kapoor, the assessee's counsel, submits that the findings of
CIT(A), confirmed by the ITAT, cannot be faulted with, and are justified in
the facts and circumstances of the case. The CIT(A), it is contended,
thoroughly examined the issues at hand and on an analysis of the assessees
agreements with the two UAE entities as well as its contract with the Abu
Dhabi Works Department, rightly rejected the AOs finding that the
remittances made by the assessee were in respect of ,,consultancy charges,
attracting the provisions of Section 9(1)(vii) of the Act. Thus, TDS was not
required to be deducted on the foreign remittances made by the assessee and
the disallowance of amount by the AO on account of the non-deduction of
TDS was incorrect.Further, the assessee submits that the CIT(A) correctly
interpreted Article 14 of the DTAA in light of the definition of ,,person in
Article 3 of the Treaty, and held it to be applicable. Thus, the assessee
submits that the findings of CIT(A) and ITAT ought to be upheld.


Analysis and Conclusions
9.     The assessee did not deduct TDS on the sum of` 94,31,826/- remitted
by it to CGS International and Marble Arts & Crafts. Therefore, this amount
would be allowed as deduction for computing the assessees income only if
it is held that the said remittances were not taxable under the Act, lest the




ITA 325/2014                                                            Page 7
provisions of Section 40(a)(i) be attracted and the deduction would have to
be disallowed. This sum would constitute income for the two UAE entities ­
CGS International and Marble Arts & Crafts ­which, admittedly, do not
have a permanent establishment in India. Thus, for these non-residents, the
provisions of Section 5(2) would be applicable, which provides that the total
income of a non-resident includes, inter alia, income that is deemed to
accrue or arise in India. Section 9 enumerates several instances where
income shall be deemed to accrue or arise in India.
10.     The revenue had sought to bring this sum to tax under Section
9(1)(vii)(b) of the Act, and contended that the provisions of the India-UAE
DTAA do not come to the assessees rescue. To succeed in this appeal, the
revenue must succeed on both these counts (framed as the two questions of
law in this appeal). This Court proceeds to examine them both below.


Question No. 1:
11.    At the outset, it would be apt to quote the relevant parts of Section
9(1)(vii), which read as follows:
       9. (1) The following incomes shall be deemed to accrue or arise in
       India:--
               ...
               (vii) income by way of fees for technical services payable by--
                  ...
                  (b) a person who is a resident, except where the fees are
                      payable in respect of services utilised in a business or
                      profession carried on by such person outside India or for
                      the purposes of making or earning any income from any
                      source outside India; or
                  ...




ITA 325/2014                                                              Page 8
               Explanation 2.--For the purposes of this clause, "fees for
               technical services" means any consideration (including any lump
               sum consideration) for the rendering of any managerial,
               technical or consultancy services (including the provision of
               services of technical or other personnel) but does not include
               consideration for any construction, assembly, mining or like
               project undertaken by the recipient or consideration which would
               be income of the recipient chargeable under the head
               Salaries`.

12.    The revenue contends that the remittances in question, made by the
assessee (a resident) to the two UAE entities (non-residents), come within
the scope of Section 9(1)(vii)(b).It is not in dispute that the two exceptions
to the applicability of Section 9(1)(vii)(b), enumerated in the said sub-clause
itself, do not apply in this case. The only dispute between the assessee and
revenue concerns the interpretation of the phrase ,,fees for technical
services, as defined in Explanation 2 to Section 9(1)(vii).
13.    Explanation 2 defines ,,fees for technical services to mean
managerial, technical or consultancy services. Revenue contends that the
services for which the assessee remitted the sums to CGS International and
Marble Arts & Crafts classify as ,,consultancy services. This Court does not
accept the revenues submissions, and in light of the thorough determination
carried out by the CIT(A), upheld by the ITAT, affirms their view.
Agreements Relied Upon by the Assessee:
14.    The agreements dated 25.11.2002 (between CGS International and the
assessee) and 05.04.2003 (between Marble Arts & Crafts and the assessee)
were first produced before the CIT(A) and were duly taken on record under
Rule 46A. The AO made its submissions on these agreements and sought to
highlight various infirmities in these agreements. In furtherance of that




ITA 325/2014                                                              Page 9
contention, the revenue submits that the agreements are not authentic in
nature and that it cannot be concluded that the remittances made were in
pursuance of those agreements. The CIT(A) took note of the fact that the
assessee entered into the two agreements with CGS International and Marble
Arts & Crafts to fulfill its obligations under its contract with the Works
Department, Abu Dhabi. The CIT(A)s observations on these two aspects
are as follows:
       "From a reading of the appellant`s agreement with the Works
       Department, Abu Dhabi ­ and further agreements with CGS
       International and Marble Arts & Crafts, it cannot be said that
       payments have not been made to the latter two concerns in connection
       with the contract entered into by the appellant with the Works
       Department, Abu Dhabi. Whereas Marble Art & Craft was paid
       $50000 for identifying the suitable partner for the project at Abu
       Dhabi, and a consideration at 5% of the gross remittances receivable
       from the Works Department, Abu Dhabi for assisting the appellant in
       the day to day work towards checking the documentation and formats
       for invoices etc., CGS International was paid 15% of the sum received
       by the appellant from the Works Department, Abu Dhabi towards
       soliciting business for the appellant. There is nothing in the
       agreements or the related documents thereof to indicate that the
       payments to the concerned two parties have not been incurred wholly
       or exclusively for the appellant`s business at Abu Dhabi, or that the
       payments to the non-residents are in excess of the agreements entered
       into with them or that the payments are not in conformity with the
       regulations governing remittances abroad.


       The AO has pointed out various infirmities in the agreements by way
       of absence of place of execution, no payment of stamp duty, non
       certification by the Notary Public and concludes that there is no legal
       validity of such agreements. Facts on record show that the agreement
       with CGS International dated 25.11.02 was prior to the agreement
       dated 12.01.03 entered into by the appellant with the Works
       Department, Abu Dhabi. The agreement with Marble Arts & Crafts




ITA 325/2014                                                            Page 10
       dated 05.04.03 were subsequent to the agreement with the Works
       Department, Abu Dhabi. Both the agreements with CGS International
       and Marble Arts & Crafts concerned the appellant`s contract with the
       Works Department, Abu Dhabi. For making the remittances outward
       to CGS International or Marble Arts & Crafts, the appellant has
       indicated to the bankers remitting the amount, the respective
       agreements governing the payments to those parties. In effect, both
       the agreements, entirely commercial in character, have been acted
       upon by the parties to the agreements i.e. by delivering services and
       receiving payment thereof. Rights and liabilities have accrued and
       acknowledged by the parties to the agreements. The question of legal
       enforceability of the agreements will not have as much implication for
       deciding the revenue implications of the payments made as much as a
       finding that the parties to the agreements did not render the service
       mentioned in the agreements or that the payments made are in excess
       of the agreements. In so far as both the agreements with CGS
       International and Marble Arts & Crafts relate to the main contract
       entered into - by the appellant with the Works Department, Abu
       Dhabi, and payments to the above two parties have been made for the
       purposes of appellant`s project work, and so intimated to the banke rs
       remitting the proceeds abroad, I hold that the fact of the expenditure
       itself has been established from the relevant records, notwithstanding
       the infirmities in the said agreements."

                                                         (emphasis supplied)

15.    These findings of fact were upheld by the ITAT, noting that the
revenue had been unable to show any material factual error. This Court, in
this appeal under Section 260A of the Act, cannot interfere with these
findings, to the extent that they conclude that the remittances were made
pursuant to the two agreements entered into with CGS International and
Marble Arts & Crafts. Further, this Court does not find any merit in the
revenues contention that the ITATs and CIT(A)s sole reliance on the two
agreements to establish the authenticity of the transaction was erroneous.




ITA 325/2014                                                           Page 11
The CIT(A), while relying on the two agreements, looked at the entire
conspectus of facts and the materials placed on record by the assessee, all of
which supported the assessees case.


Nature of services rendered by the UAE Entities
16.    This Court, in its recent ruling in Director of Income Tax v. Panalfa
Autoelektrik Ltd., (2014) 272 CTR 117 discussed the meaning of the phrase
,,consultancy services as employed in Explanation 2 to Secti on 9(1)(vii).
The Court noted as follows:
       20. The moot question and issue is whether the non -resident was
       providing consultancy services. In other words, what do you mean by
       the term "consultancy services"? This Court in Bharti Cellular
       Limited and Others (supra) had referred to the term "consultancy
       services" in the following words:-

               "14. Similarly, the word "consultancy" has been defined in the
               said Dictionary as "the work or position of a consultant; a
               department of consultants." "Consultant" itself has been
               defined, inter alia, as "a person who gives professional advice
               or services in a specialized field." It is obvious that the word
               "consultant" is a derivative of the word "consult" which entails
               deliberations, consideration, conferring with someone,
               conferring about or upon a matter. Consult has also been
               defined in the said Dictionary as "ask advice for, seek counsel
               or a professional opinion from; refer to (a source of
               information); seek permission or approval from for a proposed
               action". It is obvious that the service of consultancy also
               necessarily entails human intervention. The consultant, who
               provides the consultancy service, has to be a human being. A
               machine cannot be regarded as a consultant."

       The AAR in the case of In Re: P.No. 28 of 1999, reported as [1999]
       242 ITR 208 had observed:-




ITA 325/2014                                                             Page 12
               "By technical services, we mean in this context services
               requiring expertise in technology. By consultancy services, we
               mean in this context advisory services. The category of
               technical and consultancy services are to some extent
               overlapping because a consultancy service could also be
               technical service. However, the category of consultancy
               services also includes an advisory service, whether or not
               expertise in technology is required to perform it."

       21. The word 'consultant' refers to a person, who is consulted and
       who advises or from whom information is sought. In Black's Law
       Dictionary, Eighth Edition, the word 'consultation' has been defined
       as an act of asking the advice or opinion of someone (such as a
       lawyer). It may mean a meeting in which parties consult or confer.
       For consultation service under Explanation 2, there should be a
       provision of service by the non-resident, who undertakes to perform it,
       which the acquirer may use. The service must be rendered in the form
       of an advice or consultation given by the non-resident to the resident
       Indian payer.
                                                         (emphasis supplied)

Subsequent to the decision in Panalfa Autoelektrik (supra), the aforesaid
definitions were also adverted to by the Supreme Court in GVK Industries
Ltd. v. ITO, (2015) 371 ITR 453.
17.    Gauged from the above excerpts, it is evident that ,,consultancy
services would mean something akin to advisory services provided by the
non-resident, pursuant to deliberation between parties. Ordinarily, it would
not involve instances where the non-resident is acting as a link between the
resident and another party, facilitating the transaction between them, or
where the non-resident is directly soliciting business for the resident and
generating income out of such solicitation. Indeed, as held by this Court in
Panalfa Autoelektrik (supra), since Section 9 is a deeming provision, the
interpretation cannot be overly broad in nature.




ITA 325/2014                                                            Page 13
18.    In the case at hand, at the outset, this Court clarifies that the mere fact
that CGS International confirmed that it received consultancy charges from
the assessee would not be determinative of the issue. The actual nature of
services rendered by CGS International and Marble Arts & Crafts needs to
be examined for this purpose. It would be appropriate to note the details of
services provided by the two entities, which were highlighted by the
CIT(A):
       The agreement dated 5.4.2003 between the appellant and Marble
       Arts & Crafts provides that the latter will render guidance to the
       appellant about the procedural aspect of obtaining the payment and
       check the format and documents of the invoices that are to be
       submitted for approval to the Works Departments, Abu Dhabi, to
       receive and periodically check the invoices of the appellant, to submit
       the invoices to the respective authorities and obtaining their approval,
       to follow up with various authorities in the Works Department,
       finance department, banks and other authorities for obtaining the
       approval of the invoices raised by the appellant...

       In so far as CGS International is concerned, the agreement dated
       25.11.2002 between the appellant and CGS International provided for
       a consideration payable by the appellant for liaison or solicitation
       charges. On its part, CGS International will identify, introduce and
       provide details of industries, companies and individuals, where the
       appellant can utilize its expertise in the field of architecture, material
       procurement project management etc. In short, CGS International as
       per agreement would market the appellant and solicit project
       management and architectural work in UAE and also, in various
       parts of the world except India. The consideration is a fee equivalent
       to 15% of the gross value of the contract to be received from each
       client, who CGS International has solicited and has rendered services
       to procure the contract. The appellant has made the payment of
       Rs.45,31,044/- to CGS International being 15% of a total receipt of
       $665195 from the Works Department Abu Dhabi. Payments to CGS
       International are in terms of an earlier agreement entered into with
       the appellant."







ITA 325/2014                                                               Page 14
19.    It is evident that in the transaction between the assessee and Marble
Arts & Crafts, the former (non-resident) acted as an agent of the assessee for
the purposes of the latters dealings with the Works Department, Abu Dhabi,
which included coordinating with the authorities in the said department and
handling invoices for the assessee. As far as CGS International is concerned,
it acts as a liaisoning agent for the assessee, and receives its remuneration
from each client that it successfully solicits for the assessee. Facially, such
services cannot be said to be included within the meaning of ,,consultancy
services, as that would amount to unduly expanding the scope of the term
,,consultancy. Therefore, this Court does not accept the revenues
contention that the services provided were in the nature of ,,consultancy
services. Consequently, the remittances made by the assessee would not
come within the scope of the phrase ,,fees for technical services as
employed in Section 9(1)(vii) of the Act. This question is answered against
the revenue and in favour of the assessee.


Question No. 2
20.    This question involves a determination of whether the services
provided by the UAE entities are in the nature of ,,independent personal
services defined in Article 14 of the DTAA. Article 14, to the extent
relevant here, reads as follows:
       1.     Income derived by a resident of a Contracting State in respect
       of professional services or other independent activities of a similar
       character shall be taxable only in that State...

       2.      The term "professional services" includes independent




ITA 325/2014                                                            Page 15
       scientific, literary, artistic, educational or teaching activities as well
       as the independent activities of physicians, surgeons, lawyers,
       engineers, architects, dentists and accountants.

21.    The two requirements for the applicability of Article 14, as applied in
this case, are: a) income must be of a resident of the Contracting State
(herein, UAE); and b) income must be in respect of professional services or
other independent activities of a similar character. Article 4(1)(b) of the
DTAA defines ,,resident of a contracting state in the context of UAE to
mean any person who under the laws of that State is liable to tax therein.
Article 3(e) defines ,,person to include a company. Therefore, the CIT(A)
rightly rejected the revenues contention that Article 14 is inapplicable for
the reason that the services in question were provided by companies, as
opposed to individuals. As to whether Article 14 applies to the nature of
services provided by CGS International and Marble Arts & Crafts, the
CIT(A) observed as follows:
       In the DTAA with UAE, there are Article (sic) to consider
       assessability of income from immovable property (Article 6), business
       profit (Article 7), shipping (Article 8), associated enterprise (Article
       9), dividends (Article 10), interest (Article 11), royalties (Article 12),
       capital gains (Article 13), Independent personal services (Article 14),
       dependent personal services (Article 15) etc. There is no clause or
       Article governing payment for the so called technical services as in
       other DTAAs i.e. Article 13 of DTAA with UK or Article 12 of DTAA
       with Singapore. In view of the fact that the non residents do not have
       any permanent establishment within the meaning of Article 5 of DTAA
       in India, the remittances to them could only have been considered
       under Article 14 or Article 22 of DTAA. Under Article 14 of DTAA,
       the consideration paid to the non-resident is liable to be taxed in the
       contracting state i.e. UAE. In case remittances are considered as
       other income under Article 22 of the DTAA, it would also be taxable
       in the contracting state i.e. UAE.




ITA 325/2014                                                              Page 16
22.    This Court agrees with the CIT(A)s approach, quoted above. Since
the income of CGS International and Marble Arts & Crafts can only be
classified under Article 14 or Article 22 of the DTAA ­ both of which
provide that the income shall be taxable in the State of residence (UAE) ­the
issue as to whether the services provided by the two UAE entities fall within
the scope of ,,professional services under Article 14 is irrelevant to the
outcome of this case. Their incomes would necessarily be taxable in UAE,
whether by virtue of Article 14 or Article 22. For this reason as well, the
assessee was not obligated to deduct tax on the remittances made to CGS
International and Marble Arts & Crafts. The second question is answered
accordingly.
23.    Thus, both questions of law are answered against the revenue and in
favour of the assessee. Consequently, the appeal is dismissed. No costs.



                                                     S. RAVINDRA BHAT
                                                               (JUDGE)



                                                              R.K. GAUBA
                                                                 (JUDGE)
MAY 29, 2015




ITA 325/2014                                                           Page 17

 
 
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