9911796707
TMI Blog2012 (2) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant, it is entitled to claim the application of Double Taxation Avoidance Convention between India and UK (DTAC), the contract being with a company incorporated in UK. It has therefore relied on paragraph 4 of Article 13 of DTAC, to contend that the General BSS received by it from SIPCL do not fall within the purview of Article 13.4(c) of DTAC. Applicant submits that the benefits of services rendered by SIPCL are for the Shell Group entities. The services are provided at cost and reimbursed by the Shell Group entities. No income Dunlop Rubber Co. Ltd. 142 ITR 493; Vidogums & Chemicals Ltd. 23 ITD 255; Sedco Forex Inl. Drilling Inc. 72 ITD 415 can be said to arise to SIPCL under the present arrangement in view of the decisions on the subject. Construing the General BSS as management support services of advisory nature, the applicant submits that rendering of such services would not 'make available' MOU between India-US DTAC; Raymond Ltd. (86 ITD 791); NOCIL (96 TTJ 765) any technical knowledge, skill, experience, etc. to enable the applicant to apply the technology contained therein. Hence General BSS would not be in the nature of fees for technical services within the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of the declaration provided by SIPCL that it does not have a permanent establishment in India in terms of Article 5 of the India-UK Tax Treaty, whether the payments received by SIPCL would be chargeable to tax in India? If the answer is in the affirmative, would the payments made by the Applicant to SIPCL suffer withholding tax under section 195 of the Act and at what rate? 3. There is no representation on behalf of the Revenue. No written submissions on merits have been filed even though sufficient time was allowed and the hearing was fixed more than a dozen times since November, 2009. However, detailed information regarding General BSS appearing in appendix 2 to CCA was called for by the Revenue and were filed by the Indian company SIMPL on 23.12.2009. 4. In the additional submissions, the applicant submitted that the definition of FTS as per India-UK Tax Treaty is similar to the definition of the term "fee for included services" under the India-US Tax Treaty. Since India being the common signatory to the US and UK Treaties, the identically defined terms should not carry different interpretations. This Authority has held the same view in Intertek Testing Services Pvt. Ltd. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) the Court while relying on the definition of 'consultancy' in Oxford English Dictionary, Fifth Edition observed the following "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." Even in the case of Linde A.G. v. Income Tax Officer, [1997] 62 ITD 330 (Mum.) the court held that the expression "consultancy" service involves giving of an advice or advisory services by a professional. 8. It cannot be denied that the Applicant receives services in the form of general finance advice, Taxation advic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, the recipient must also be conveyed specifically the right to continue the practice put into effect and adopted under the service agreement on its expiry. 11. As regards the reliance place by the applicant to the meaning of "make available" in the MOU in India-US DTAC, it may be noted that a Convention is a treaty entered into by two sovereign States relating to rights and duties of subjects or citizens of the respective States in one another's possession. 12. Having noted that the General BSS are consultancy in nature, we now proceed to examine whether the same are 'made available' to the applicant. It is noted that while describing the services, the term 'advise/advice' has been repeatedly used and the services are themselves called 'support services'. This itself indicates that while providing General BSS, SIPL works closely with the employees of the applicant and supports/advises them. Thus we are of the view that General BSS is made available to the applicant. This opinion is further strengthened on an examination of the applicant's arguments while answering question No.(iii) relating to royalty. The applicant states that since it becomes the owner of any know-how genera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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