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TMI Blog2012 (4) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp;1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in holding that assessee's income from ground handling and technical handling services is not taxable in India as the same is held to be covered by Article 8 of DTAA India and Netherlands. 2. The appellant craves to add, amend, modify or alter any grounds of appeal at the time or before the hearing of the appeal. ITA No. 1392/Del/2011 M/s. Lufthansa German Airlines 1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in holding that the income of the assessee from ground handling and technical handling for other Airlines in India, was not taxable in India. 2. The appellant craves to add, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the appeals of both the assessees, Tribunal had failed to consider certain aspects. She submitted that both the assessees are in the airline business. The Article 8 of the DTAA entered with Germany and Netherland by the India contemplates the assessment of income from aircraft operation. Article 8(1) propound that profit from the operation of aircraft in international traffic shall be taxable only in the contracting state in which the place of effective management of the enterprise is situated. She emphasized that this article deals with the expression "operation of aircraft in international traffic". Article 3(i) of the treaty with Germany and Article 3(h) of the treaty with Netherlands provides the definition of expression "internati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (2) shall be deemed to be the profits and gains of such business chargeable to tax under the head "Profits and gains of business or profession". (2) The amounts referred to in sub-section (1) shall be the following, namely : (a) the amount paid or payable (whether in or out of India) to the assessee or to any person on his behalf on account of the carriage of passengers, livestock, mail or goods from any place in India ; and (b) the amount received or deemed to be received in India by or on behalf of the assessee on account of the carriage of passengers, livestock, mail or goods from any place outside India. (emphasis supplied)." 3. On the strength of section 44BBA, she pointed out that expression "operation of air ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te distinct activities. In order to appreciate this issue, the Article 8 available in the three treaties referred above has a direct bearing, therefore, it is salutary upon us to take note of this article in all the three treaties in a tabular form for comparative study which reads as under: Indo Germany DTAA Indo-Netherland DTAA Indo-UK.DTAA ARTICLE-B Shipping and air transport 1. Profit from the operation of ships or aircraft in international traffic shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated. 2. If the place of effective management of a shipping enterprise is abroad a ship, then it shall be deemed to be situated in the Contracting Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an international operating agency. ARTICLE 8-Air transport - 1. Profits derived from the operation of aircraft in international traffic by an enterprise of one of the Contracting States shall not be taxed in the other Contracting State. 2. The provision of paragraph 1 of this Article shall likewise apply in respect of participation in pools of any kind by enterprises engaged in air transport. 3. For the purposes of this Article the term "operation of aircraft" shall include transportation by air of persons livestock, goods or mail, carried on by the owners or lessees or characters of aircraft, including the sale of tickets for such transportation on behalf of other enterprises, the incidental lease of aircraft on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be taxable in India under sub Article 1 of Article 8. In the present appeals, there is no disparity on facts. Learned DR except raising an argument that ground handling and technical handling services are different activities then operation of any air-craft in international traffic failed to bring any rules, regulations, bye-laws for substantiating his contentions. The co-ordinate Bench of the ITAT has examined this issue in detail and considered these aspects. Unless some strong circumstances which has not been brought to the notice of the earlier Bench, are available, we cannot take a different stand even if it is possible to take the other view. The revenue is unable to bring any material on record which can pursued us to take a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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