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TMI Blog2015 (3) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... 26,667/- cannot be treated as fee for technical services and is not covered u/s 195. Before us Revenue has not brought any material on record to controvert the findings of CIT(A). Further the case laws relied upon by ld. D.R. are distinguishable on facts and cannot be applied to the facts in present case. We further find that in the case of ITO vs. Veeda Clinical Research (2014 (1) TMI 886 - ITAT AHMEDABAD) the Co-ordinate Bench after relying on the decision in the case of DIT vs. Guy Carpenters and Company Ltd. [2012 (5) TMI 31 - DELHI HIGH COURT ] and CIT vs. Debeers India Pvt. Ltd. [2012 (5) TMI 191 - KARNATAKA HIGH COURT ] has held that the condition precedent for invoking the “make available” clause is that the services should enable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act and therefore provisions of Section 195 of the Act were applicable and the Assessee should have deducted the tax before making the payment. The submission of the Assessee that the Services provided by the non- resident were not in the nature of making available hence Article 12 of India U.S.A. treaty were not applicable. The aforesaid contention was not found acceptable to the A.O. A.O was therefore of the view that since Assessee has not deducted TDS, it was liable for tax u/s 201(1) and interest u/s 201(1A) of the Act. He accordingly worked out the total amount at ₹ 6,11,276/-. Aggrieved by the order of A.O., Assessee carried the matter before CIT(A). CIT(A) after considering the submissions of the Assessee deleted the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears to be a case of process of standardization for which the expertise exists with M/s Colorado Engineering Experiments Station Inc. and which has not been passed on to the assessee. The various case laws cited in the context by the appellant appears to be applicable and have been taken into account in coming to the above conclusions. Therefore, considering all the facts and circumstances, it is held that the payment of US$ 31,200 and US$92,300 amounting to ₹ 52,26,667/- cannot be treated as fee for technical services and the same is not coverable u/s.195. Hence, consequently, the assessee could not be held an assessee in default u/s.201(l). 4. Aggrieved by the order of CIT(A), Revenue is now in appeal before us and has raised t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010)132 TTJ 566, in the case of XYZ Ltd. (2012) 348 ITR 20 (AAR), in the case of Centrica India Offshore Pvt. Ltd. vs. CIT (2012) 348 ITR 45 (AAR). 7. The ld. A.R. on the other hand reiterated the submissions made before A.O and CIT(A) and submitted that the payment made by the Assessee was for procuring services in respect of wet calibration and testing of ultrasonic meters. He further submitted that the services were provided outside India to the payee who is a resident of U.S.A. and does not have any permanent establishment in India within the meaning of Article 5 of India U.S.A DTAA. He further submitted that payee has only given the certificate/report of the calibration to the Assessee and certificate/report does not contain the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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