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2020 (10) TMI 1355 - AT - Income TaxTDS u/s 195 - Fees for Technical Services under Section 9(1)(vii) - Applicability of provisions of Section 195 on payments towards Instrument Flight Rules ('IFR') paper charts to Jeppessen GmBH, Germany - HELD THAT - We are of the considered view in the light of decision of Co-ordinate Bench rendered in the case of Elsevier Information Systems Gmbh 2019 (5) TMI 405 - ITAT MUMBAI and the judgment of Hon'ble Supreme Court rendered in the case of Kotak Securities Ltd. 2016 (3) TMI 1026 - SUPREME COURT The assessee was not liable to deduct tax. Since the services do not fall within the ambit of technical services as envisage u/s 9(1)(vii) of the Act and the article 12 of India-Germany DTAA. Therefore, we direct the assessing officer to delete this addition. Applicability of provisions of section 195 on payments towards mandatory training for pilots, to CAE simuflite Inc., USA (CAE) - assessee vehemently argued that the authorities below were not justified in making the addition and sustaining the same in respect of payments made towards mandatory training for pilots - HELD THAT - The requirement of tax in respect of fee for technical services and technical knowledge or skills of the provider should be imparted to and absorbed by the receiver so that the receiver can deploy similar technology or techniques in the future without depending upon the provider. Another requirement is that as per the Article 7 of the India USA DTAA the service provider should have a Permanent Establishment (PE) in India. We find in the contention of the Ld. counsel for the assessee that the judgment relied by the TDS officer rendered in the case of De Beers 2012 (5) TMI 191 - KARNATAKA HIGH COURT which in fact helps the case of the assessee. We, therefore, direct the assessing officer to delete this addition.- Decided in favour of assessee.
Issues Involved:
1. Applicability of provisions of Section 195 of the Income Tax Act, 1961 on payments towards Instrument Flight Rules (IFR) paper charts to Jeppessen GmBH, Germany. 2. Applicability of provisions of Section 195 of the Income Tax Act on payments towards mandatory training for pilots to CAE Simuflite Inc., USA. 3. Applicability of provisions of Section 195 of the Income Tax Act on payments made to Camp Systems International Inc., USA for providing alerts on maintenance of aircraft parts. 4. Applicability of provisions of Section 195 of the Income Tax Act on payments made to Rockwell Collins, USA for providing services in respect of route navigation. 5. Applicability of provisions of Section 195 of the Income Tax Act on payments made to Learjet Inc., USA for providing parts under "Smart parts plus agreement" and providing service bulletins. Issue-wise Detailed Analysis: 1. Applicability of provisions of Section 195 of the Income Tax Act, 1961 on payments towards Instrument Flight Rules (IFR) paper charts to Jeppessen GmBH, Germany: The Tribunal held that the services provided by Jeppessen GmBH, Germany in the form of IFR paper charts do not fall within the ambit of 'technical services' under Section 9(1)(vii) of the Income Tax Act and Article 12 of the India-Germany DTAA. The Tribunal noted that the IFR paper charts are standardized and generated through an automated system without significant human intervention. The Tribunal relied on the decisions in Elsevier Information Systems GmbH and Kotak Securities Ltd., concluding that the subscription fees for IFR paper charts are not taxable as fees for technical services. Therefore, the assessee was not liable to deduct tax at source under Section 195. 2. Applicability of provisions of Section 195 of the Income Tax Act on payments towards mandatory training for pilots to CAE Simuflite Inc., USA: The Tribunal held that the payments made to CAE Simuflite Inc. for mandatory pilot training required by the Directorate General of Civil Aviation (DGCA) do not qualify as fees for included services under Article 12 of the India-USA DTAA. The Tribunal relied on the decision in United Helicharters Pvt. Ltd., which held that such training services do not result in the transfer of technology or make technology available to the recipient. The Tribunal concluded that the assessee was not required to deduct tax at source under Section 195 for these payments. 3. Applicability of provisions of Section 195 of the Income Tax Act on payments made to Camp Systems International Inc., USA for providing alerts on maintenance of aircraft parts: The Tribunal held that the payments made to Camp Systems International Inc. for maintenance tracking services and electronic log books do not fall within the term 'fees for technical services' under the Income Tax Act or Article 12 of the India-USA DTAA. The Tribunal noted that the services provided were standardized and did not involve human intervention or transfer of technology. Therefore, the assessee was not required to deduct tax at source under Section 195 for these payments. 4. Applicability of provisions of Section 195 of the Income Tax Act on payments made to Rockwell Collins, USA for providing services in respect of route navigation: The Tribunal held that the payments made to Rockwell Collins, USA for enhanced map overlays and route navigation services do not qualify as fees for technical services under the Income Tax Act or Article 12 of the India-USA DTAA. The Tribunal noted that the services provided were standardized and did not involve human intervention or transfer of technology. Therefore, the assessee was not required to deduct tax at source under Section 195 for these payments. 5. Applicability of provisions of Section 195 of the Income Tax Act on payments made to Learjet Inc., USA for providing parts under "Smart parts plus agreement" and providing service bulletins: The Tribunal held that the payments made to Learjet Inc., USA for providing parts and service bulletins under the "Smart parts plus agreement" do not qualify as fees for technical services under the Income Tax Act or Article 12 of the India-USA DTAA. The Tribunal noted that the services provided did not involve transfer of technology or human intervention. Therefore, the assessee was not required to deduct tax at source under Section 195 for these payments. Conclusion: The Tribunal allowed the appeals filed by the assessee, directing the assessing officer to delete the additions made on account of non-deduction of tax at source under Section 195 for the payments made to Jeppessen GmBH, CAE Simuflite Inc., Camp Systems International Inc., Rockwell Collins, and Learjet Inc.
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