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TMI Blog2018 (7) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... peals, they were heard together and are disposed of by this common order for the sake of convenience and brevity. ITA No. 1330/DEL/2016 2. The grievances of the assessee read as under: "1. The ld. CIT(A)-2, Noida has erred in law and in the facts and circumstances of the case in not holding that Ground No. 1 regarding non taxability is allowed even after observing that such receipts could not have brought to tax in India 2. The ld. CIT(A)-2, Noida has erred in law and in the facts and circumstances of the case in holding that the assessee had opted to pay tax u/s 44BB of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short] ignoring the fact that Ground No. 4 regarding taxability of receipts u/s 44BB had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounting to Rs. 1.37 crores on adhoc basis, as income of the non- resident being taxable in India. 5. Before the first appellate authority, it was strongly contended that since no operations were carried out by Gulf Piping in India, the receipts of the non residents were not taxable in India u/s 9(1)(i) of the Act. It was further brought to the notice of the ld. CIT(A) that the said receipts were in any case exempt from tax in India in accordance with the provisions of Article 5 read with Article 7 of the Indo-UAE DTAA since Gulf Piping does not have any Permanent Establishment [PE] in India. 6. The ld. CIT(A) was convinced that Gulf Piping did not carry out any business operation in India and did not have any PE in India. This finding of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. We accordingly, set aside the findings of the ld. CIT(A) and allow the appeal of the assessee. 10. In the result, the appeal of the assessee is allowed. ITA No. 1332/DEL/2016 11. The grievances of the assessee read as under: "1. The ld. CIT(A)-2, Noida has erred in law and in the facts and circumstances of the case in upholding the order passed by the Assessing Officer wherein it was held that the receipts of DeGolyer & MacNaughtenm USA are taxable as fees for technical services and in not holding that such receipts were not taxable in India as per the India-USA Double Taxation Avoidance Agreement. 2. Without prejudice to the preceding ground, the ld. CIT(A)-2, Noida has erred in law and in the facts and circumstances of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . counsel for the assessee. A similar issue was considered by the coordinate bench in assessee's own case [supra]. The relevant findings of the Tribunal read as under: "8. It is not in dispute that the services in question were rendered outside India. The payment in question cannot be construed as fees for technical services under India-USA DTAA, as no technical knowledge, skill, know how etc. was made available to the assessee. The issue in question is no more res integra in view of the following judgments :- 1. DIT vs. Guy Carpenter & Co. Ltd. (2012) 346 ITR 504 2. CIT vs. De Beers India Minerals (P) Ltd. 346 ITR 467 9. Thus the amount paid by ONGC to the NRC can be brought to tax only under article 7 of the Indo-USA DTAA as bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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