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TMI Blog2002 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement with the learned Commissioner of Income-tax (Appeals) that the foreign company, Rotomac (SPA), cannot be held to have a permanent establishment and since the period of stay of their technicians in India is not more than three months in each of the two years, in view of the provisions of article 15 read with article 5(2)(h) of the DTAA, the said company is not liable to pay tax in India. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rotomac (SPA), Italy, in February, 1987. It had earlier entered into an agreement dated October 9, 1986, with the Italian company for erection, assembly and commissioning of these for which a remittance of US $ 50,000 was to be made. The assessee made an application under section 195(2) of the Income-tax Act, 1961, seeking no objection for the remittance without deducting any tax at source (TDS). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of stay of technicians does not exceed 90 days, then the amount is not to be taxed doubly in both the States and as such there is no question of going to the residuary article No. 23. As already pointed out the Tribunal also held that article 23 did not apply to the facts of this case. Thus its implication also means that such amounts are not to be taxed in both the States and would be exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table to that fixed base. 2. The term 'professional services' includes independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, surgeons, lawyers, engineers, architects, dentists and accountants." Admittedly, the Italians, who have been paid fee for technical services, stayed in India for less than 90 days. The Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said company is not liable to pay tax in India. Incidentally, this view finds support from the Income-tax Appellate Tribunal's order dated September 10, 1991, relied upon by the assessee. We, therefore, hold that the assessee was not liable to deduct tax under section 195(2) of the Act on the amounts remitted by it to the foreign company in the two years under consideration." In our consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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