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TMI Blog2015 (7) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices/deliverables are examined. Then one shall be in a position to ascertain as to whether the services or techniques provided was mere commercial information or a technique made available to the assessee. We may elucidate this point with an example. Let us assume that a financial consultancy firm provides consultancy services for “Cash management system”. It may provide various techniques to be followed to achieve the objective of effective cash management. The said techniques may be followed by the recipient of services even in the absence of the financial consultancy firm. In that case, the question that requires to be examined is whether the financial consultancy firm has made available the technology related to Cash management system ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2006-07 are directed against the order dated 17.8.2009 passed by the ld. CIT(A)-XXXIII, Mumbai. The other three appeals filed by the assessee are directed against the three separate orders passed by AO under sections 143(3) r.w.s.144C(13) of the Income Tax Act, 1961. Since identical issues are agitated in these appeals, all these appeals were heard together and they are being disposed of by this common order, for the sake of convenience. 2. In all these appeals, the solitary issue urged is whether the assessee is liable to pay tax on the amounts received from the persons mentioned below in respect of services provided to them: a) Wockhard Hospitals Ltd i) Consulting Agreement; ii) Award Agreement; and iii) Education and Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received under consulting agreement from Wokhard Hospitals and M/s Carol Info Services are taxable as Fee for included services . (b) the fees received from Wockhard Hospitals in pursuance of Award Agreement is not taxable. (c) the receipts by way of reimbursement of expenses are not taxable. (d) the fees received from Wockhard Hospitals Ltd under the education and teaching agreement is partially taxable, i.e., 75% of the receipt is not taxable and balance 25% is taxable as Royalty for use of trade name. (e) the fees received from SRMCRI under education and teaching agreement is partially taxable, i.e., 60% of the receipt is not taxable and the balance 40% is taxable as royalty for use of trade name. Both the parties have chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es rendered by the assessee for advisory services rendered. Identical view was taken in the case of receipts from Wokhard Hospitals. The Tribunal in paragraph13 and 14 of its order has held as under:- 13. Consistent with the aforesaid view taken by the Tribunal in Assessee s own case, we hold that the payments received from Max does not constitute FIS (Fee for Included Services) within the meaning of Article 12(4), as nothing is made available by the Assessee to Max and also the Assessee does not have any P.E in India. Therefore the income so arising to the Assessee in India cannot be taxed under Article 7 as Business Profits . 14. In case of WHL (Wokhard Hospitals Ltd) also, we hold that it is neither taxable as FIS nor as roya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axable in India. 13. We notice that the tax authorities have examined only the agreements and have drawn conclusion against the assessee. They have not examined about the nature of services actually provided or delivered by the assessee to the Indian entities. In our considered view, one may not be able to come to a conclusion about the nature of services provided unless the actual services/deliverables are examined. Then one shall be in a position to ascertain as to whether the services or techniques provided was mere commercial information or a technique made available to the assessee. We may elucidate this point with an example. Let us assume that a financial consultancy firm provides consultancy services for Cash management system . ..... X X X X Extracts X X X X X X X X Extracts X X X X
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