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TMI Blog2011 (1) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... giving clear finding as to the nature of services rendered by the assessee - appeal of the revenue allowed X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for the rendering of any technical or consultancy services (including through the provision of services of technical or other personnel), if such services : (a) are ancillary and subsidiary to the application or enjoyment of the right, property or information for which a payment described in paragraph 3 is received; or (b) make available technical knowledge, experience, skill, know-how, or processes, or consist of the development and transfer of a technical plan or technical design." 3. The AO observed that use of the expression "made available" clearly showed that it was not necessary for providing of services to participate in the act of rendering services. The AO also referred to the provisions of Indo US Treaty which were simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order held that he had gone into the facts of the case and that on the identical facts the tribunal in a similar case for A.Y. 1995-96 to 2002-03 in the order dated 26.4.2006 had held that the payment in question could not be treated as fees for technical services. Thereafter CIT(A) briefly referred to the provisions of MOU dated 15.5.89 between India & USA and concluded that the assessee was rendering consultancy services which was not of technical in nature and accordingly held that the income could not be considered as included services under Article 12(4). It was also held by him that since the assessee did not have any PE, the receipts could not be taxed under Article 7 of the Treaty as business income. The decision of the CIT(A) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT(A). Even the name of the case and appeal number has not been mentioned. CIT(A) in his order has only reproduced the various submissions made by the assessee during the appellate proceedings without giving any clear finding as to what was the exact nature of services provided by the assessee to one of its entities in India. It may be noted that the assessee has provided services not to any client but to one of its own entities who is providing consultancy services to various corporate clients. We also note that the AO had not examined the issue of PE as he had taxed the income under Article 12(4)(b) and not under Article 7. CIT(A) has also not examined the issue of PE and summarily concluded that the assessee had no PE without giving a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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