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TMI Blog2017 (6) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... 44BB - Held that:- The appellant has no PE in India. Section 44BB of the Act applies in a case where consideration is for services relating to exploration activity which are not in the nature of technical services. If, the consideration is in the nature of fee for technical services, the provisions of either section 44DA or section 115A will be applicable. The said position remained same even after the amendment brought by Finance bill 2010. The agreement shows that the personnel of the non-resident are not engaged in extraction or production of mineral oils. The appellant is not receiving any consideration for mining, assembly or other like projects undertaken by it. Thus, the appellant falls within the purview of Explanation 2 of Section 9(1)(vii) of the Act. The judgment of the Apex Court in ONGC Vs. CIT (2015 (7) TMI 91 - SUPREME COURT) is not applicable to the present case as in that case the non-resident recipient of income was engaged in drilling operations. The facts of this case are distinguishable. We agree with the reasoning given by the AO and CIT(A) and in view thereof, Ground no. 2 raised by the appellant is dismissed. - Decided against assessee. - ITA No.4877/Del/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India-Canada Double Taxation A voidance Agreement. Without prejudice to the preceding ground, the Ld. Commissioner of Income Tax (Appeals)-II, Dehra Dun, has erred in law and in the facts and circumstances of the case in holding that the receipts of University of Calgary, Alberta, Canada, from ONGC were taxable as fees for technical services and in not holding that such receipts were taxable u/s. 44BB of the Income-tax Act, 1961. 6. In Ground No.1, the appellant contends that the receipt of the University of Calgary, Canada could not be treated as 'fees for technical services' as per India - Canada DTAA. The Ld. AR submits that as per section 90(2) of the Act, where a DTAA exists, the provisions of the Act continue to apply to be extent they are more beneficial to the assessee. In the present case, since the appellant is a non-resident it is entitled to be governed by the provisions of DTAA between India and Canada to the extent they are more beneficial to it. The Ld. AR has referred to Article 12 of India - Canada DTAA dealing with royalties and fees for included services. Article 12(4) of India - Canada DTAA is extracted herein below: 4. For the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Effective Date of contract) shall be USD 300,000. The total cost of contract for five years shall be USD 816 subject to renewal of existing MOU from April 11, 2009 onwards. The above cost is exclusive of all the taxes, duties level applicable. Any kind of taxes, duties levies applicable in India shall be borne by the institute. Note: All costs associated with local transportation, accommodations, meals and miscellanewous expenses, etc for U of CIT(A) profession of India shall be borne by IRS, ONGC and will be additional to the annual quoted above. Additionally costs associated with replacement ports, components, if required, will be invoiced to IRS, ONGC on at cost basis by U of CIT(A) All the costs associated with shipping packaging insurance taxes and customs duties in India shall be paid reimbursed by IRS, ONGC to U of C. List of equipment for maintenance. A. HPAI 100 mm Diameter Combustion Tube System 1. Combustion Tube 2. pressure Jacket 3. Gas injection System 4. Water Injection System 5. Back Pressure Control Suystem 6. Production system 7. pre test core preparation and core flooding systems 8. Product Gas Anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils, a sum equal to ten per cent of the aggregate of the amounts specified in sub-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 : 11. Provided that this sub-section shall not apply in a case where the provisions of section 42 or section 44D or section 44DA or section 115A or section 293A apply for the purposes of computing profits or gains or any other income referred to in those sections. 12.(2) The amounts referred to in sub-section (1) shall be the following, namely :- 13.(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 provision of services and facilities in connection with, or supply of plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils in India; and 14.(b) the amount received or deemed to be received in India by or on behalf of the assessee on account of the provision of services and facilities in connection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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