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TMI Blog2023 (12) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... at it supplies during the intention to offer period. This is purely service for providing diamonds to the sight holders and such service cannot be held that some kind of technical service is being provided by the assessee on this under Article 13 of DTAA or there is any managerial, technical or consultancy services even under the provision of section 9(1)(vii) of the Act. Provision of extranet, it only accelerates efficiencies in the intention to offer process and provides a platform for sharing DTC information, propriety content plus tailored access to each sightholder to their own specific business information and processes via secured web-based, informationsharing and business platform. It is merely for providing information and there is no element of making available technical services and therefore, we are unable to appreciate as to how these can be treated as FTS. In so far as the provision of key account management, it is a kind of main point of contact between sightholder and assessee and assists in managing that relationship and to provide support in planning the intention to offer and delivery schedules. This account is related to supply of diamonds and nothing to do with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyalty under Article 13 which has been confirmed by the DRP also - HELD THAT:- We agree with the submissions with the ld. Counsel that once it is not a registered trademark, it does not have a sign or logo and it is not owned by the assessee, there is no question of taxing the same as royalty. Further, it cannot be held to be taxable as FTS also under Article 13 because there is no make available technical knowledge under this programme. Accordingly, order of the ld. CIT (A) is upheld and the grounds raised by the Revenue are dismissed. It has been stated that in the appeals for A.Yrs. 2010-11 to 2012-13 have exactly similar issue under consideration with similar facts. However, they are assessee s appeal, since post assessment order assessee has preferred DRP route and accordingly, the order of the AO has been upheld. Accordingly, our finding given in the A.Y.2009-10 will apply mutatis mutandis for these years also. - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI S RIFAUR RAHMAN, ACCOUNTANT MEMBER For the Assessee : Shri M.P. Lohia a/w. Shri Nikhil Tiwari For the Revenue : Shri Anil Sant ORDER PER AMIT SHUKLA (J.M): The appeal, ITA No.6509/Mum/2016(AY :2009-10) has been filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services as business income of Appellant and not as Royalty under para 3(a) as held by the Assessing Officer. 5. Whether on the facts and in circumstances of the case the learned CIT(A) has erred in holding the receipts of Rs.54,35,104/-, being receipts/fees received from DTC Accredited Business Programme (DTC- ABP) as not falling within the purview of Royalty or FTS under the Indo - UK Treaty. 6. The Appellant prays that the order of the Ld. CIT(A) on the above grounds be set aside and that of the Assessing Officer restored. ITA No.2267/Mum/2014 (A.Y.2010-11) 1. The learned Assessing Officer erred in treating the receipts from Supply Planning Services ('SPS') as Fees for Technical Services ( FTS') under Explanation 2 to section 9(1)(vii) as well as under para 4 of the India- UK tax treaty and Royalty under para 3 of Article 13 of the India-UK tax treaty 2. Without prejudice to Ground No 1, the learned Assessing Officer erred in taxing the receipts from SPS at 15 per cent on gross basis as per Article 13 of the India-UK tax treaty instead of 10 per cent as per the provisions of sub clause (BB)/ (AA) of clause (b) of subsection (1) of section 115A of the Act. 3. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Assessing Officer erred in law and on facts in initiating penalty proceedings under section 271(1)(c) of the Act . ITA No.5733/Mum/2015 (A.Y.2011-12) 1. The learned Assessing Officer erred in treating the receipts from Supply Planning Services ('SPS') as Fees for Technical Services ('FTS') under Explanation 2 to section 9(1)(vii) as well as under para 4 of the India- UK tax treaty and Royalty under para 3 of Article 13 of the India-UK tax treaty 2. Without prejudice to Ground No 1, the learned Assessing Officer erred in taxing the receipts from SPS at 15 per cent on gross basis as per Article 13 of the India-UK tax treaty instead of 10 per cent as per the provisions of sub clause (BB)/ (AA) of clause (b) of subsection (1) of section 115A of the Act. 3. The learned Assessing Officer erred in treating the receipts from DTC Accredited Business Services as Fees for Technical Services and Royalty under Article 13 of the India-UK tax treaty. 4. The learned Assessing Officer erred in granting credit for taxes deducted at source of Rs 88,751,648 as against Rs 96,928,259 claimed in the return of Income. 5. The learned Assessing Officer erred in charging interest under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) of India-UK DTAA and crediting services and DTC accreditation business as FTS under Article 13(4) or not? If these issues are decided, then most of the other issues raised in other assessment years with regard to rate of taxes etc., which are without prejudice ground would follow only when this issue is decided against the assessee. 4. The brief facts are that assessee is a company incorporated in and a tax resident of United Kingdom (UK). Accordingly, it was eligible to be governed by the beneficial provisions of the IndiaUK Double Taxation Avoidance Agreement ('DTAA). De Beers Group has a leading role in the diamond exploration, diamond mining, diamond retail and diamond trading sectors. Assessee is engaged in the business of selling rough diamonds to worldwide sightholders. In addition to the sale of rough diamonds to worldwide sightholders, during AY 2009-10, assessee was inter alia involved in providing supply planning services (SPS), Grading services and DTC accreditation business under the DTC Accredited Business Programme (DTC-ABP'). Receipts from such services were treated as business income for assessee in absence of its Permanent Establishment in India. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from Value Added Services ('VAS') (SoC contract 2005-2008) and hence, followed the order of the ITAT for AY 2007-08 by taxing the receipts from SPS as FTS and royalty. The DRP also affirmed the treatment of the AO. 21. Aggrieved by the final assessment order, assessee preferred an appeal before the ITAT. At the time of the hearing before us, it was brought to our attention to the fact the dissimilarity between both the contracts, i.e., SoC contract 2005-2008 (VAS) and SoC contract 2008-2011 (SPS) and that the AO had erroneously applied the SoC contract 2005-2008. It was also pointed out that the ITAT while passing the order on SoC contract 2008- 2011, held as under:- 20. On examining the divergent stands of both the parties, we find, it is an undisputed fact that SPS agreement 2008-2011 is filed by the assessee before the AO/DRP at the relevant point of time. It is our finding of fact that the lower authorities have considered only the expired VAS agreement 2005-08 for unknown reasons. It is both surprising and unfortunate that AO/DRP, who are specially chosen to for making of these specialised assessment involving international transactions, have ignored the basic fact o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d effective means of communication through extranet services and hence, AO held that assessee provides technical services to the sightholders for their commercial purpose and expediency. Not only that, technical knowledge is actively made available to the sightholders. Thus, such kind of services falls not only within the scope of Explanation to Section 9(1)(vii) was also defined in para 4 of the Article 13 of the treaty. 24. As far as holding the receipts of grading services, assessee received an amount of Rs.4,00,703/- for services rendered under Forevermark Diamantaire Agreement . From the perusal of the agreement AO noted that the same is of very high and intricate nature, based on the examination assessee used to issue certificate. After considering the entire process and submissions it is held that diamond processed by the assessee are inscribed with the inscription and also provide a Forevermark Identification Card for every Forevermark diamond so inscribed. Even the intellectual property rights which underpin the exclusivity of the Forevermark proposition are transmitted and it also allows to use the trademark Forever mark Diamantaire . Thus, it is clear that diamonds which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3.14. Article-13 of Indo-UK Tax Treaty contains the provisions for taxability of suns paid as royalty and fees for technical services . The same terms have been used in the Income tax Act also, though the definition of the term royalty and FTS is not exactly the same under the provisions of the domestic Act and the Treaty Under the provisions of section 9(1)(vii), any sum payable as fees for technical services to any non-resident is taxable as income of non-resident in India if the services for which the payment has been made has been utilized in a business or profession carried on by the payer in India or for the purpose of making or earning any income from any source in India. The term fees for technical services has been defined in the Explanation-2 to section 9(1)(vii) to mean any consideration (including lump-sum consideration) for rendering of any managerial, technical or consultancy services (including provision of services of technical or other personnel) but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient which would be income of the recipient chargeable under the head Salaries Similarly, royalty payable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions for taxability of a sum as royalty and FTS is reproduced below as ready reference. ARTICLE13- 1. Royalties and fees for technical services arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such royalties and fees for technical services may also be taxed in the Contracting State in which they arise and according to the law of that State, but if the beneficial owner of the royalties or fees for technical services is a resident of the other Contracting State, the tax so charged shall not exceed. (a) in the case of royalties within paragraph 3(a) of this Articles, and fees for technical services within paragraphs 4(a) and (c) of this Article,- (1) during the first five years for which this Convention has effect, (aa) 15 per cent of the gross amount of such royalties or fees for technical services when the payer of the royalties or fees for technical services is the Government of the first-mentioned Contracting State or a political sub-division of that State, and (bb) 20 per cent of the gross amount of such royalties or fees for technical services in all other cases, and for technical services, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under: ...7.20 Thus, in view of the decisions of the Tribunal mentioned above, for taxability of a sum as FTS, under para 4(c) of article 13 of Indo UK treaty, the payment should not only for rendering of technical or consultancy services but such services should also make available technical knowledge, experience etc which can be used by the recipient on its own. The consultancy services have been interpreted as technical consultancy. However, the word technical is not used only in relation to technology It also refers to practical skills, experience acquired in a particular activity. Thus, consultancy based on practical skills, experience will also be covered but for application of para 4(c), such skills, knowledge, experience, etc should be made available to the recipient who could apply the same independently. In the present case, the assessee is providing information which is of the nature of commercial information based on its experience. The assessee was not transferring the technical knowledge, skill, experience etc but was only imparting the information concerning commercial experience. Therefore, in our view, provisions of para 4(c) will not be applicable. 3.18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent comprised of the services through KAM as part of the supply planning tool services and assistance if any provided through workshops and personal meetings as part of growth services, which were ancillary and subsidiary to the marketing information provided to the Sightholders. Such services could also be considered as ancillary and subsidiary to application or enjoyment of brands as these were aimed at promoting sale of branded jewellery and finished diamonds. 3.23. The Hon'ble Tribunal further held that the assessee was providing various types of commercial information relating to selling of rough diamonds and finished diamond products. The VAS service guide also provided that information provided by the assessee which was confidential in nature was based on its experience. The services were placed in two categories ie. core services and growth services. Under the core services, the assessee was providing supply planning tool services and business sustainability services. Supply planning tool services basically consisted of advance information given by the assessee to Sightholders regarding nature, quality and other parameters of diamonds it intended to make available over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich had been provided to the Sightholders with the condition that the same would be kept confidential. 3.25. The findings of the Hon'ble Tribunal in AY 2007-08 that value added services should be taxed as royalty were based on the description of services rendered by the Appellant under the SoC contract 2005-2008. Value added services were held to be in the nature of royalty under para 3(a) on account of various type of information of commercial nature acquired based on experience provided to sightholders in the form of business sustainability services, growth services, workshops, personal meetings, etc. However, on a perusal of the services provided under SoC contract 2008-2011, it has been observed that business sustainability, growth services, workshops, etc do not form part of the scope of services provided under SoC contract 2008-2011. In view thereof, receipts from supply planning services should not fall under the ambit of royalty under para 3(a). 3.26. The Hon'ble Tribunal had in AY 2007-08 further held that value added services should be taxed as FTS under para 4(a) being payment attributable to the services rendered by the KAM, through workshops, etc which were an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01), I am of the opinion that grading services cannot be taxed as royalty under the provisions of the Treaty. 4.11. Accordingly, fees received for rendering grading services is liable to be taxed as business income of the Appellant. In the absence of PE of the Appellant in India (as discussed in Ground No 2), the receipts from grading services are not taxable in India. 28. Lastly, with regard to treatment of receipts from DTC accredited business programme, he held as under:- 5.10. I have considered the facts placed on record, the Appellant's submissions and the findings of the AO, DRP and the Hon'ble Tribunal. The Appellant has pointed out that Accredited Business Partners or DTC Accredited Business is not its registered trademark or patent. Hence, the question of taxing the same as royalty should not arise. It has further been noted that the Appellant has not provided use or right to use any copyright, artistic or scientific work, patent, trademark, design, model or plan. 5.11. In the course of appellant proceedings the appellant filed a sample copy of Appendix 'B' which is DTC Accreditation Guideline for using the term DTC Accredited Business In the said Guideline ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT has upheld the taxability of VAS as FTS and royalty for AY 2007-08 and AY 2008-09. The Appellant has used advanced technology, standardized method and effective means of communication through extranet services and hence, the AO has held that the Appellant provides technical services to the sightholders for their commercial purpose and expediency. Technical knowledge is actively made available to the sightholders. 30. The Tribunal has very categorically discussed this issue in detail by remanding back to the AO holding that earlier Tribunal order was based on earlier contract which is not applicable at all in the present contract as under the earlier contract assessee has earned income from provision of value added services and sightholder used to receive core service as defined under the contract. Further, assessee also offered an option to service recipients to avail growth services which are providing free of cost. Thereafter, SOC contract for 2008-2011, the supply planning services consisted of intention to offer and maintaining integrity of supplier of his choice. The scope of services under the old associated agreement 2005-08 was as under:- 2.8.1. Core services (integra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightholder Extranet accelerates efficiencies in the ITO process and provides a platform for sharing Diamond Trading Corporation (DTC) information, propriety (third party) content plus tailored access to each Sightholder to their own specific business information and processes via a secure, web-based, informationsharing and business platform. Provision of Key Account Management ('KAM') The KAM is the main point of contact between Sightholder and DBUK and assists in managing that relationship. The KAM manages and provide support in planning the ITOs and delivery schedules. 2.9.2. Maintaining integrity of Supplier of Choice DBUK has engaged with an organization to verify the accuracy of the information contained in Sightholder submissions and information supplied or ought to be supplied by Sightholders during the term of the contract 2.10. A chart summarising the scope of services in both the agreements was also submitted before the Hon'ble ITAT (at page 204 to 207 of factual paper book of AY 2009-10) Fee arrangement under both the contracts: 2.11. Under the SoC contract 2005-08, DBUK charged a fee of USD 1,80,000 plus a percentage of the incremental rough purchase whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or agreements, arrangements and undertakings (whether express or implied and whether legally binding or not) between the DTC and its Sightholders and (together with the other documentation referred to herein) constitutes the entire agreement between the DTC and its Sightholders relevant to the subject matter hereof to the exclusion of all other terms and representations whether express or implied, written or oral. Nothing in this Policy Statement (or arrangements entered into under it) shall constitute a partnership, agency or franchise arrangement between the DTC and any Sightholder (or any member of their respective groups) 34. Further, the learned DR has submitted that assessee in its clarification has mentioned that there is no service guide at the time of publishing policy statement whereas as mentioned on page 59 of SoC agreement 2008-11, the service guide is to be published from time to time Therefore, DBUK has not given any statement on whether after publishing policy statement if there is any service guide or not. 35. In this regard, ld. Counsel submitted that there is no such service guide even after publishing the policy statement and in fact as pointed out above in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract. Thus, this has nothing to trigger FTS clause of DTAA. Accordingly, the finding and observation of ld. CIT (A) is upheld. Accordingly, this issue is decided in favour of the assessee. 38. In so far as ground No.2 is concerned, we have already held that there is distinguishing between the SOC contract (2005-08 and 2008-11) is not some kind of an afterthought because same was submitted before the AO and ld. DRP at the first instance. The Tribunal in its earlier order dated 04/09/2013 at para 18 has already held that SOC agreement 2008-11 was filed by the assessee before the AO at the relevant point of time. Thus, the difference in both the agreements cannot be an afterthought and both the authorities should have considered the new agreement before passing the order. Accordingly, this ground is rejected. 39. Now, coming to the issue raised in Ground No.3 holding the receipts of Rs.102,62,21,488/-, being fees for SPS not falling under the purview of royalty under Article 13(4). We have already held that scope of services rendered by assessee in VAS agreement 2005-08 and SOC agreement 2008-11 were entirely different. In A.Y.2007-08, the Tribunal held that VAS is to be taxable only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee in the VAS agreement 2005-2008. Tribunal, while dealing with the taxability of Value Added Services, held that the services rendered by assessee do not make available any technical knowledge, skill, etc., For the sake of ready reference, the relevant para reads as under:- 7.20 Thus, in view of the decisions of the Tribunal mentioned above, for taxability of a sum as FTS, under para 4(c) of article13 of the Indo UK Treaty, the payment should not only for rendering of technical or consultancy services but such services should also make available technical knowledge, experience, etc. which can be used by the recipient on its own. The consultancy services have been interpreted as technical consultancy. However, the word technical is not used only in relation to technology. It also refers to practical skills, experience acquired in a particular activity. Thus consultancy based on practical skills, experience will also be covered but for application of para 4(c), such skills, knowledge, experience etc. should be made available to the recipient who could apply the same independently. In the present, case the assessee is providing information which is of the nature of commercial infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular period. 44. We are in agreement with the contention of the ld. Counsel. Firstly there is no make available of any services of technical knowledge as held above and also this extranet is merely a platform to provide information to the sightholder. It is nothing but a website that that allows controlled access to partners, vendors and suppliers or an authorised set of customers normally to a subset of the information accessible from an organization's intranet. Thus, no technical service was provided to sightholders for providing access to the extranet. Thus, this reason given by the AO is rejected. 45. Regarding taxability under Article 13(3), i.e., Royalty, it has been submitted that assessee communicates in advance to every sightholders the aggregate value of each Box it intends to make available to the sightholders during the selling period, categorized by box and by sight (referred to as Intention to Offer). It mainly consists of provision of consistency of boxes, provision of extranet, provision of key account manager. Now, whether intention to offer amounts to 'Plan' and thereby, covered in the scope of Royalty as held by the AO, the submission of the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see are through provision of SPS services and not through the use of trademarks which are having from clause 6 of conditions for the Supply of Planning Services and the Service Fee are reproduced as under for ease of reference: 2.1. The DTC will provide the Services to Sightholders on the terms and conditions set out therein..... 2.2. The services offered by the DTC and as set out in Appendix A may be varied by the DTC from time to time in its sole and absolute discretion. 2.3. Sightholders shall pay the Service Fee for the Services. The Service Fee relates to the ITO and will comprise a flat rate charge calculated, separately for each Sight at each Sight location, with regard to the aggregate price of boxes purchased by the relevant Sightholder (or Sightholder group member) at each Sight at each such Sight location during the relevant 12 month Selling period Thus, fees earned for providing SPS services can not be treated as fees earned through the use of logo/ trademark which can be held to chargeable to tax as royalty. 48. The ld. DR has also contended that the service fees is also for the use of trademark Sightholders and/or DTC Sightholder' cannot be accepted because select ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , commercial or scientific experience has been discussed, wherein it was observed and hold as under:- 11. The thin line distinction which is to be taken into consideration while rendering the services on account of information concerning industrial, commercial and scientific experience is, whether there is any imparting of knowhow or not. If there is no alienation or the use of or the right to use of any knowhow i.e., there is no imparting or transfer of any knowledge, experience or skill or knowhow, then it cannot be termed as royalty The services may have been rendered by a person from own knowledge and experience but such a knowledge and experience has not been imparted to the other person as the person retains the experience and knowledge or knowhow with himself, which are required to perform the services to its clients. Hence, in such a case, it cannot be held that such services are in nature of royalty Thus, in principle we hold that if the services have been rendered de hors the imparting of knowhow or transfer of any knowledge, experience or skill, then such services will not fall within the ambit of Article-12 . 51. The Hon ble Jurisdictional High Court in the case of Diam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to ground No.4 that ld. CIT(A) has erred in holding receipts of Rs.4,00,703/- being receipts/ fees received for grading services as business income of assessee and not as royalty. The Tribunal has set aside this issue to the AO after considering additional evidences and the decision of the Hon ble Bombay High Court in the case of Diamond Services International (P) Ltd vs UOI ORS (304 ITR 201) wherein it was held that the grading fees paid by the assessee to GIA for the activity of certification and grading of diamonds, do not fall within the expression of royalty under Article 12 of DTAA. 55. Before us and also before the CIT (A), it has been explained that grading is the process of examination and testing of an eligible diamond to determine and report its characteristics according to the industry and Forevermark standards. Diamonds are graded based on its colour, clarity, cut and carat as under:- 5.7.1 Colour The finest white diamonds (as opposed to fancy coloured diamonds) should be as close to colourless as possible. Colour grading as defined by the Gemological Institute of America (GIA) is classified by letters of the alphabet, the best being D, colourless, and cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh precision instrument that will measure the variations in its optical behavior when rotated through 360 degrees. During this rotation, the Instrument captures hundreds of different measurements that, combined, build a picture of the stone's symmetry and the uniformity and intensity of its reflective capabilities. In addition to the optical testing, DBUK also undertakes accurate physical measurements to define the proportions of the stone. The proportions are derived from a set of universally accepted measurements involving both lengths and angles. 5.7.4. Carat Carat refers to the weight of a diamond. Each carat is divided into one hundred points and is equivalent to 0.2 grams, a measurement adopted in the United States in 1913 and now universally accepted. Stone are measured under hermetically sealed conditions using a digital weighing device accurate to five decimal places. Its result is thus far more reliable than any measurement performed by diamond jewellers. 5.8. Based on the examination of the diamond on above factors, DBUK issues a grading report to the Diamantaire certifying the properties of the diamonds. A sample copy of the grading report to explain the terms colo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same time royalty. Before us, it has been submitted that the DTC-ABP was created in 2008 for entities who were former Sightholders and they did not qualify as Sightholders during the year 2008. Since such former Sightholders wanted to maintain business relationship with DBUK, they entered into a DTC-ABP agreement with DBUK to qualify as DTC Accredited Business partners. The benefits of the DTC-ABP were as follows: (i). Accredited business partner of DBUK would get a chance once in a year to meet DBUK (Account Manager) to discuss commercial and industrial matters of public nature. (ii) Through DTC-ABP, DBUK provides support materials to assist in promotion of business of Accredited business partners. Such support materials include display cards for trade shows and events, certificate for accreditation for display in offices etc. (iii) Accredited business partner would be entitled to apply to be Forevermark Diamantaire under a separate agreement (iv) Accredited business partner would be entitled to call themselves as DTC Accredited Business (v). After considering the detailed submission filed by DBUK, the learned CIT(A) noted that the fees charged by DBUK for DTC Accredited Busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no question of taxing the same as royalty. Further, it cannot be held to be taxable as FTS also under Article 13 because there is no make available technical knowledge under this programme. Accordingly, order of the ld. CIT (A) is upheld and the grounds raised by the Revenue are dismissed. 64. It has been stated that in the appeals for A.Yrs. 2010-11 to 2012-13 have exactly similar issue under consideration with similar facts. However, they are assessee s appeal, since post assessment order assessee has preferred DRP route and accordingly, the order of the AO has been upheld. Accordingly, our finding given in the A.Y.2009-10 will apply mutatis mutandis for these years also. 65. The other grounds raised with regard to rate of taxability is purely an alternative ground, in case if it is held that any of the services are taxable as FTS and royalty then rate provided in DTAA should be applied. Since, we have already held that none of the services and the payment received by the assessee is not in the nature of FTS under Article 13(3) or royalty or under Article 13(4), therefore, these grounds have become purely academic. 66. In the result, appeal of the Revenue is dismissed and all th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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