Shell International B.V., New Delhi V. The Income tax Officer,Ward-1(4), Ahmedabad

ITA 1150/AHD/2007

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67534 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 23-01-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 16-03-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D C PATWARI; V K GUPTA
• Keywords: Transfer pricing; Double taxation relief; Principle of natural justice; Deemed to accrue or arise in india; Permanent establishment; Advance ruling
• Section: 143(3); 234B; 133(6); 90; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO. 1150/AHD/2007, 3950/AHD/2008 & 52/AHD/2009 A.Y: 2003-04 & 2005-06 SHELL INTERNATIONAL B.V. CAREL VAN BYLANDTLAAN, 30, DEN HAAG, THE NETHERLANDS, C/O S.R. BATLIBOI & CO., 2 ND FLOOR, SHIVALIKA SAAM, NR. C.A. VIDHALAYA AMBAWADI, AHMEDABAD. VS INCOME TAX OFFICER, WARD 1(4), AHMEDABAD. (ASSESSEE) (REVENUE) REVENUE BY : S/SHRI D.C. PATWARI & V.K. GUPTA, CIT-D.R. ASSESSEE(S) BY : SHRI DHINAL SHAH, A.R. / // / DATE OF HEARING : 10/05/2013 / DATE OF PRONOUNCEMENT: 7/08/2013 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE THREE APPEALS ARE CONNECTED WITH EACH OTHER H ENCE CONSOLIDATED AND HEREBY DECIDED BY THIS COMMON ORDE R HEREUNDER: A) ITA 1150/A/07 ( A.Y. 2003-04 ) : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FRO M THE ORDER OF LEARNED CIT(A)-V, AHMEDABAD DATED 26.12.2006 AND TH E GROUNDS RAISED ARE HEREBY DECIDED AS FOLLOWS: GROUNDS OF APPEAL ARE REPRODUCED BELOW :- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-V, AHMEDABAD (HEREINAFTER REFERRED TO AS LEARNED CI HA S ERRED ON FACTS AND IN LAW IN HOLDING THAT AMOUNTS RECEIVED BY THE APPELLANT FOR ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 2 - RENDERING SUPPORT SERVICES UNDER THE SUPPORT SERVIC E AGREEMENT (SSA) QUALIFY AS FEES FOR TECHNICAL SERVICES UN DER ARTICLE 12 OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA A ND NETHERLANDS (INDIA-NETHERLANDS TAX TREATY). 2. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT( A) HAS ERRED ON FACTS AND IN LAW IN TAXING THE REIMBURSEMENT OF EXP ENSES AS FEES FOR TECHNICAL SERVICES UNDER ARTICLE 12 OF THE INDIA-N ETHERLANDS TAX TREATY. 3. WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT( A) HAS ERRED ON FACTS AND IN LAW IN CONSIDERING THE HIGHER OF THE A MOUNTS MENTIONED IN THE TRANSFER PRICING CERTIFICATE (I.E. FORM 3CEB ) OF THE APPELLANT AND THE INFORMATION AS PROVIDED BY HAZIRA PORT PRIV ATE LIMITED, HAZIRA LNG PRIVATE LIMITED AND SHELL HAZIRA GAS PRI VATE LIMITED (PRESENTLY KNOWN AS HAZIRA GAS PRIVATE LIMITED) UND ER SECTION 133(6) OF THE ACT AS THE TOTAL RECEIPTS OF THE APPE LLANT (I.E. 116,849,305). 2) FACTS IN BRIEF AS EMERGED FROM THE CORRESPO NDING ASSESSMENT ORDER DATED 29.03.2006 PASSED U/S 143(3) WERE THAT THE APPELLANT IS A FOREIGN COMPANY, REGISTERED IN NETHE RLAND, AND IN THE NATURE OF BUSINESS , STATED TO BE, TO PERFORM ACCOMPLISHMENT FOR THE USE OF CARRYING ON ONE OR MORE BRANCHES OF THE PETROLEUM , NATURAL GAS , COAL AND CHEMICAL INDUSTRY . IT HAS ALSO BEEN NOTED BY THE A.O. THAT NIL INCOME RETURN WAS FILED. T HERE IS A REFERENCE OF TDS CERTIFICATE IN WHICH THE TOTAL RECEIPTS WERE SHOWN AT RS. 6,16,72,380/- AND THE PURPOSE TO MENTI ON IS THAT ONE OF THE GROUND IS ABOUT THE CORRECT QUANTUM OF THE R ECEIPTS. THE A.O. HAD COLLECTED INFORMATION U/S 133(6) FROM: (I) HAZIRA LNG PVT. LTD.( IN SHORT HLPL) (II) HAZIRA PORT PVT. LTD. ( IN SHORT HPPL ) (III) SHELL HAZIRA GAS PVT. LTD. ( IN SHORT SHGPL ) 2.1) ON THE BASIS OF THE INFORMATION COLLECTED THE DETAILS OF THE PAYMENT RECEIVED WAS AS UNDER:- ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 3 - 2.2 ) SOME RECONCILIATION WAS FURNISHED BY THE ASSE SSEE BUT THAT WAS NOT ACCEPTABLE TO THE A.O.,THEREFORE FINALLY TH E WITHHOLDING TAX @ 10% WAS IMPOSED ON THE FIGURE OF RS. 11,68,49 ,305/-. 2.3) THE MAIN CONTROVERSY AS EMERGED FROM GROUND NO . 1 IS DUE TO THE REASON THAT THE ASSESSEE HAS DENIED THE LIABILITY OF TAX AS PER THE RETURN OF INCOME. A NOTE ANNEXED TO THE RET URN WAS REPRODUCED BY THE A.O. AS FOLLOWS : DURING THE YEAR ENDED MARCH 31,2003, SERVICES RENDE RED BY SHELL INTERNATIONAL BV WAS LIMITED TO PROVIDING SUPPORT S ERVICES WHICH ARE NOT COVERED UNDER ARTICLE 12 OF DTAAA AND ARE IN TH E NATURE OF BUSINESS PROFITS. AS PER THE ARTICLE 7 OF THE DTAA, BUSINESS PROFIT OF NETHERLANDS TAX RESIDENT I.E. SIBV IS TAXABLE IN IN DIA ONLY IF SIBV WERE TO CONSTITUTE A PERMANENT ESTABLISHMENT PE IN INDIA AND BUSINESS PROFITS ARE ATTRIBUTABLE TO SUCH PE. THE P ROVISION OF SUPPORT SERVICES DO NOT RESULT IN CONSTITUTION OF A PE IN I NDIA/ OR PROFITS THAT ARE ATTRIBUTABLE IN INDIA. ACCORDINGLY, SIBV IS NOT LIABLE TO TAX IN INDIA AND HAS CLAIMED REFUND OF TAXES WITHHELD IN I NDIA. 2.4) HOWEVER THE A.O. WAS NOT IN AGREEMENT AND BY REFERRING THE ORDER OF ASSOCIATED CONCERNS HELD THAT THE SER VICE UNDER SSA ARE TECHNICAL IN NATURE AND WOULD THEREFORE BE CLASSIFIED AS FTS UNDER THE NETHERLAND DTAA. THE TAX @ 10% OF THE TOTAL NAME AND ADDRESS OF ASSOCIATED ENTERPRISE DESCRIPTION OF SERVICES PROVIDED TO/FROM ASSOCIATED ENTERPRISE TOTAL AMOUN T PAID/RECEIVED OR PAYABLE/RECEIVABLE IN THE TRANSACTION METHOD USED FOR DETERMINING THE ARMS LENGTH PRICE AS PER BOOKS OF ACCOUNTS AS COMPUTED HAVING REGARD TO ARMS LENGTH PRICE SHELLS INTERNATIONAL B.V. PROVISION OF BUSINESS SUPPORT SERVICE TO HPPL 3,13,73,318/- 3,13,73,318/- COST ALLOCATION SHELLS INTERNATIONAL B.V. PROVISION OF BUSINESS SUPPORT SERVICE TO HLPL 1,08,49,894 1,08,49,894 COST ALLOCATION SHELLS INTERNATIONAL B.V. PROVISION OF BUSINESS SUPPORT SERVICE TO SHGPL 6,54,26,210 6,54,26,210 COST ALLOCATION SHELLS INTERNATIONAL B.V. PROVISION OF BUSINESS SUPPORT SERVICE TO SHGPL 91,99,883 91,99,883 COST REIMBURSEMENT TOTAL 11,68,49,305/- 11,68,49,30 5/- ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 4 - REMITTANCE, AS PER THE PROVISIONS OF THE CONTRACT W ILL BE DEDUCTED AT SOURCE BEFORE THIS AMOUNT IS REMITTED TO SHELL I NTERNATIONAL B.V. THEREFORE IN A CRYPTIC MANNER THE A.O. HAD CO NCLUDED THAT ON THE TOTAL RECEIPTS THE TAX @ 10% SHOULD HAVE BEE N DEDUCTED, WHICH WAS COMPUTED AT RS. 1,16,84,931/- AND TAXED I N THE HANDS OF THE ASSESSEE. BEING AGGRIEVED THE MATTER WAS CAR RIED BEFORE THE FIRST APPELLATE AUTHORITY. 3) THE FOREMOST CONTENTION OF THE ASSESSEE BEFORE LD. CIT(A) WAS THAT THE ASSESSEE HAS ONLY PROVIDED SUPPORT SER VICE AS PER THE SUPPORT SERVICE AGREEMENT ( IN SHORT SSA) AN D THE AMOUNT RECEIVED WAS NOT THE FEES FOR TECHNICAL SE RVICES (IN SHORT FTS ) UNDER THE DOUBLE TAXATION AVOIDANCE AGR EEMENT, ARTICLE 12, BETWEEN INDIA AND NETHERLAND( KNOWN AS INDIA- NETHERLAND TAX TREATY). 3.1) THE ASSESSEE HAS ALSO SUBMITTED THAT THE DIFFE RENCE IN THE TOTAL AMOUNT RECEIVED WAS DUE TO THE DIFFERENT EXCH ANGE RATE APPLIED BY THOSE CONCERNS WHILE GIVING INFORMATION U/S 133(6) OF THE ACT. 3.2 ) AN ANOTHER ISSUE HAD CROPPED UP BEFORE LD. C.I.T.(A), ON ACCOUNT OF A REMAND REPORT, IN RESPECT OF THE PERMA NENT ESTABLISHMENT ( P. E. ) IN INDIA OF THE ASSESSEE I. E. SHELL INTERNATIONAL B.V. ( IN SHORT SIBV). 3.3) FROM THE SIDE OF THE ASSESSEE CERTAIN REPLY AND COUNTER- REPLIES WERE FURNISHED AND FROM THE SIDE OF THE REV ENUE A REMAND REPORT WAS FURNISHED. AFTER CONSIDERING THOS E SUBMISSIONS THE LD.CIT(A) HAS DECIDED THE ISSUE IN REVENUES FAVOUR. ACCORDING TO HIM THE ASSESSEE HAD ENTERED I NTO AN AGREEMENT WITH CERTAIN ENTITIES AT HAZIRA FOR PROVI DING VARIOUS TYPES OF SUPPORT SERVICE, SALIENT FEATURES WERE REP RODUCED IN THE ORDER, AS UNDER:- ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 5 - (A) ASSISTANCE IN ESTABLISHMENT IN GAS TRANSPORTA TION AGREEMENT (GTA) SIBV HAS ASSISTED IN FINALIZATION OF THE GTA BY APPRIS ING SHG OF THE TYPICAL TERMS OF SUCH CONTRACTS GLOBALLY, LIABILITI ES AND COMMITMENTS SHARED BY THE PARTY, THE TYPICAL TARIFFS THAT MAY B E PAYABLE ETC.] (B) EVALUATION OF POTENTIAL CUSTOMERS. THE CUSTOMER EVALUATION COMPRISES DEMAND APPRAISAL, CREDIT WORTHINESS, TRACK RECORD, FINANCIAL CAPABILITIES ET C TO HONOUR A LONG TERM TAKE OR PAY CONTRACT. SIBV HAS ASSISTED BY COM MUNICATING PARAMETERS, APPRAISAL PROCESSES ETC. (C) ASSISTANT IN ESTABLISHMENT OF THE GAS SALES AGR EEMENT (GSA) TTMS IS ME MOST SIGNIFICANT CONTRACT, WITH COMPLEX TERMS TO INCORPORATE THE TAKE OR PAY COMMITMENTS, LAY DOWN T HE NON- COMPLIANCE PENALITIES, DAMAGES COMMENSURATE WITH TH E INVESTMENTS ETC. SIBV HAS APPRISED SHG OF THESE COMPLEX TERMS A ND NEED TO BE INCORPORATED IN SUCH AGREEMENTS. (D) RISK MANAGEMENT IN NEGOTIATIONS THIS ASPECT IS OVERLAPPING WITH ASSISTANCE IN ESTAB LISHMENT OF ANY CONTRACT. THIS COVERS ASSISTANCE IN INCORPORATING T ERMS WITHIN THE CONTRACT (TYPICAL OF GAS CONTRACTS) WHICH ARE STRIN GENT AND COMMENSURATE WITH THE RISK OF THE BUSINESS. (E) ASSISTANCE IN PROJECT PROMOTION INDIA IS A NASCENT MARKET FOR IMPORTED LNG, AND CON CEPTS LIKE LONG TERM TAKE OR PAY ARE VERY NEW AND MODERN FOR THE IN DIAN MARKET. SIBV HAS BEEN ADVISING SHG ON THE MARKET POSITIONIN G, MARKET EDUCATION OF THE GAS BUSINESS ETC. (F) ASSISTANCE IN LNG TRANSPORTATION AND SHIPPING WITH THE GLOBAL EXPERIENCE OF SIBV, IT ASSISTS SHG IN SCOUTING THE INTERNATIONAL MARKETS FOR SUPPLIERS, SHIPPERS ETC. WHO CAN OFFER MOST COMPETITIVE TERMS FOR THE RESPECTIVE FUNCTIONS. (G) ESTABLISH POST SERVICE AGREEMENT IMPORTED LNG HAS TO BE UNLOADED AT A PORT, WHICH HA S FACILITIES FOR UNLOADING THIS SPECIALIZED CARGO. AGAIN THE CONTRAC TS WILL HAVE SPECIAL TERMS BEING LONG TERM IN NATURE AND REQUIRI NG FOR COMMITMENTS FROM THE PORT SERVICE PROVIDER. SIBV HA S ASSISTED SHG IN ESTABLISHING THIS AGREEMENT. ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 6 - 3.4 ) IN THE LIGHT OF THE SERVICES RENDERED BY THE ASSESSEE IT WAS OBSERVED BY LD. CIT(A) THAT THE SAME WAS CONSULTAN CY SERVICES AND TECHNICAL IN NATURE. HE HAS ALSO HELD THAT T HEY WERE LIKE MAKING AVAILABLE TECHNICAL EXPERTISE TO HAZIRA UN ITS. ACCORDING TO CIT(A) THE ASSESSEE HAD TECHNICAL EXPERTISE IN T HAT FIELD WHICH WAS PROVIDED TO THOSE CONCERNS AT HAZIRA. HE HAS PE RUSED THE AGREEMENT AND THEREUPON COMMENTED THAT THE TECHNOLO GY OF TRANSPORTATION OF NATURAL GAS AND LNG WAS PROVIDED BY THE ASSESSEE. ACCORDING LD. CIT(A) THE TECHNICAL SERVIC ES WERE MADE AVAILABLE AS PER ARTICLE 12 OF DTA AGREEMENT. FINAL LY IT WAS CONCLUDED THAT PAYMENTS MADE BY THE INDIAN COMPANIE S WERE FEES FOR TECHNICAL SERVICES HENCE GIVEN RIGHT TRE ATMENT BY THE A.O. 3.5) ABOUT THE GRIEVANCE OF CORRECT AMOUNT RECEIVED BY THE ASSESSEE, THE CIT(A) HAS HELD AS UNDER :- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE B Y THE LD. AUTHORISED REPRESENTATIVE THOUGH THE ASSESSEE HAS C LAIMED THAT SHGPL HAS RECOGNIZED, AN ADDITIONAL SUM OF RS.41977 83/- WHICH WAS REVERSED IN THE FOLLOWING YEAR BUT THERE IS NO SUCH CONFIRMATION FILED BY THE ASSESSEE TO SHOW THAT THESE AMOUNT HAS BEEN REVERSE BY THE RESPECTIVE COMPANIES. ASSESSEE CAN ALWAYS APPRO ACH THE ASSESSING OFFICER FOR RECTIFICATION IN THIS REGARD IF HE IS ABLE TO SUBSTANTIATE THIS CLAIM. IT HAS BEEN CLAIMED THAT T HE BALANCE AMOUNT OF RS.4629322/- IS ON ACCOUNT OF DIFFERENCE IN EXCH ANGE RATES BEING APPLIED BY THE APPELLANT. BUT AGAIN THERE IS NO WOR KING AS TO HOW THIS HUGE DIFFERENCE HAS ARISEN. FROM THE INFORMATION GA THERED BY THE ASSESSING OFFICER U/S. 133(6) FROM THE PAYER, AMOUN T PAID IN INDIAN CURRENCY IS CLEARLY KNOWN. THEREFORE, I FAIL TO UND ERSTAND HOW SUCH A DIFFERENCE HAS ARISEN AND IF THERE WAS NAY DIFFEREN CE IT WAS FOR THE ASSESSEE TO FILE A WORKING OF THE SAME SO THAT IT C OULD BE VERIFIED. AS THE ASSESSEE HAS NOT EXPLAINED THE DIFFERENCE, I FI ND NO REASON TO INTERFERE WITH THE ASSESSING OFFICERS WORKING IN T HIS REGARD AND ASSESSING OFFICERS ACTION IS UPHELD. 3.6) AS FAR AS THE ISSUE OF EXISTENCE OF PE IN IN DIA, THERE WAS NO FINAL VERDICT OF LD. CIT(A) ALTHOUGH IT WAS TOUCHED IN THE REMAND ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 7 - REPORT. IT WAS ALSO A FACT THAT THERE WAS NO DISCUS SION ON THIS ISSUE OF P.E. EITHER BY THE A.O. IN THE IMPUGNED ASSESSME NT ORDER. 4) FROM THE SIDE OF THE ASSESSEE LD. A.R. MR. DHINAL SHAH APPEARED. HE HAS FURNISHED SUBMISSIONS AS ALSO ARGU ED THE CASE IN THE LIGHT OF THE COMPILATION FILED. SOME OF THE PER TINENT PORTIONS ARE REPRODUCED BELOW:- 1. BACKGROUND: THE APPELLANT, SHELL INTERNATIONAL BV, A NETHERLAND S COMPANY ENTERED INTO SUPPORT SERVICE AGREEMENTS ('SSA') WIT H HAZIRA PORT PRIVATE LIMITED ('HPPL'), HAZIRATNG' PRIVATE LIMITE D ('HLPL') AND SHELL HAZIRA GAS PRIVATE LIMITED ('SHGPL') [PRESENT LY KNOWN AS HAZIRA GAS PRIVATE LIMITED] WITH EFFECT FROM 1 APRI L 2002 TO PROVIDE SUPPORT SERVICES. IN THE PRESENT CASE, UNDER THE TERMS OF THE SSAS, T HE APPELLANT WAS CONTRACTED TO RENDER THE SUPPORT SERVICES IN THE FO LLOWING AREAS: 1. COMMERCIAL SUPPORT, 2. LOGISTICS 3. PUBLIC AFFAIRS 4. HUMAN RESOURCE MATTERS 5. FINANCE, BANKING AND TREASURY 6. ADMINISTRATIVE 7. LEGAL, AND 8. HEALTHCARE SERVICES CERTAIN SPECIFIC SERVICES WHICH WERE RENDERED BY TH E APPELLANT HAVE BEEN NOTED BY THE HON'BLE CIT(A) AND REPRODUCED BY HIM IN HIS ORDER (REFER PAGE 9 AND 10 OF THE CIT(A) ORDER) WHICH ARE BROADLY DESCRIBED AS UNDER: 1. ASSISTANCE IN ESTABLISHING GAS TRANSPORTATION AG REEMENT 2. EVALUATION OF POTENTIAL CUSTOMERS 3. ASSISTANCE IN ESTABLISHING GAS SALES AGREEMENTS 4. RISK MANAGEMENT IN NEGOTIATIONS 5. ASSISTANCE IN PROJECT PROMOTION 6. ASSISTANCE IN LNG TRANSPORTATION AND SHIPPING 1. ESTABLISH PORT SERVICE AGREEMENT DURING THE FY 2002-03 RELATABLE TO THE AY 2003-04, THE APPELLANT RECEIVED THE FOLLOWING AMOUNTS UNDER THE SAID SSAS: ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 8 - PAYER PARTICULARS AMOUNT (RS) HPPL RENDERING SUPPORT SERVICES UNDER THE SSA 2,99,50461 HLPL RENDERING SUPPORT SERVICES UNDER THE SSA 1,03,35,044 SHGPL RENDERING SUPPORT SERVICES UNDER THE SSA 5,82,26,204 SHGPL REIMBURSEMENT OF MOBILIZATION EXPENSES 95,10,671 TOTAL 10,80,22,380 THE RETURN OF INCOME WAS FILED BY THE APPELLANT BY CONTENDING THAT THE SERVICES RENDERED UNDER THE SAID SSAS BEING COM MERCIAL IN NATURE DO NOT FALL WITHIN THE DEFINITION OF FEES FO R TECHNICAL SERVICES ('FTS') AND THEREFORE, ARE NOT TAXABLE IN INDIA. ASSESSMENT ORDER U/S 143(3) THE INCOME-TAX OFFICER, WARD 1(4), AHMEDABAD [HEREI NAFTER REFERRED TO AS THE 'LEARNED ASSESSING OFFICER' OR LEARNED AO'] PASSED THE ASSESSMENT ORDER HOLDING THAT THE REVENU ES RECEIVED UNDER THE SAID SSAS ARE IN NATURE OF FTS AND HENCE, TAXABLE AT 10% UNDER THE PROVISIONS OF THE ARTICLE 12 OF THE I NDIA- NETHERLANDS TAX TREATY. WHILE FINALIZING THE ASSESSMENT, THE LEARNED AO FAI LED TO PROVIDE ANY COGENT REASONS AS TO WHY AND HOW THE AMOUNTS RECEIV ED UNDER THE SSAS CONSTITUTED FTS AND MERELY RELIED ON THE 195(2 ) CERTIFICATE ISSUED BY THE ASST. DIRECTOR OF INCOME-TAX, CIRCLE 2(2), INTERNATIONAL TAXATION, NEW DELHI ON SHGPL'S APPLICATION WHICH HE LD THAT THE SERVICE UNDER THE SSA WERE TAXABLE AS FJS UNDER THE INDIA- NETHERLANDS TAX TREATY. IN ARRIVING AT THE CONCLUSI ON, THE LEARNED AO ALSO IGNORED THE 195(2) ORDERS PASSED BY THE SAME O FFICE IN CASE OF HLPL AND HPPL WHICH ALLOWED HLPL AND HPPL TO REMIT THE FEES TO SIBV FOR SERVICES RENDERED THE SSAS WITHOUT DEDUCTI NG ANY TAX AT SOURCE. FURTHER, FOR COMPUTING THE TOTAL REVENUES IN THE HA NDS OF THE APPELLANT, THE LEARNED AO HAS CONSIDERED THE AMOUNT S DISCLOSED BY HPPL, HLPL AND SHGPL COLLECTIVELY IN THEIR RESPECTI VE FORM SCEBS AND NOT THE AMOUNTS RECEIVED AND DISCLOSED BY THE APPELLANT IN ITS OWN FORM 3CEB (AS MENTIONED ABOVE). AGGRIEVED BY THE SAID ORDER OF THE LEARNED AO, APPE AL WAS PREFERRED WITH THE CIT(A). ORDER OF THE HON'BIE CIT(A) ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 9 - THE HON'BIE CIT(A) UPHELD THE ORDER PASSED BY THE L EARNED AO TO HOLD THE SERVICES RENDERED BY THE APPELLANT WERE TE CHNICAL IN NATURE AND THEREFORE, THE FEES TOWARDS THE SAME CONSTITUTE D FTS AS PER ARTICLE 12 OF THE INDIA-NETHERLANDS TAX TREATY. HOW EVER, THE HON'BIE CIT(A) FAILED TO ELUCIDATE AS TO HOW THE SAID SERVI CES WERE TECHNICAL IN NATURE AND HOW BY RENDERING SUCH SERVICES, TECHN OLOGY WAS MADE AVAILABLE BY THE APPELLANT TO HLPL, HPPL AND SHGPL, IN LIGHT OF THE NUMEROUS JUDICIAL PRECEDENTS WHICH HAVE EXPLAIN ED THE TERM 'MAKE AVAILABLE'. GIVEN THE ABOVE, AGGRIEVED BY THE CIT(A)'S ORDER, T HE APPELLANT HAS PREFERRED THIS APPEAL. 2. SUBMISSION OF THE APPELLANT: GROUND 1 - AMOUNTS RECEIVED BY THE APPELLANT FOR RENDERING SUPPORT SERVICES UNDER THE SUPPORT SERVICE AGREEMENT ('SSA') DO NOT QUALIFY AS 'FEES FOR TECHNICAL SERVICES' UNDER ARTICLE 12 OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA A ND NETHERLANDS ('INDIA-NETHERLANDS TAX TREATY' ) IT HAS BEEN THE CONTENTION OF THE LEARNED AO AS WEL L AS THE HON'BIE CIT(A) THAT THE SERVICES RENDERED BY THE APPELLANT UNDER THE SSAS ARE TECHNICAL IN NATURE AND HENCE, ARE TAXABLE IN I NDIA AS PER ARTICLE 12 OF THE INDIA-NETHERLANDS TAX TREATY. IN THIS REG ARDS, YOUR HONOURS ARE REQUESTED TO NOTE THAT SECTION 9(I)(VII) OF THE INCOME TAX ACT, 1961 (ACT) DEFINES THE TERM 'FEES FOR TECHNICAL SER VICES' IN A WIDE MANNER TO ANY CONSIDERATION FOR RENDERING MANAGERIA L, TECHNICAL OR CONSULTANCY SERVICES. HOWEVER, REFERENCE IS ALSO IN VITED TO SECTION 90(2) OF THE INCOME TAX ACT, 1961 WHICH CLARIFIES T HAT THE ASSESSSEE CAN RELY ON THE ACT OR THE TAX TREATY, WHICHEVER IS MORE BENEFICIAL. THIS VIEW IS SUPPORTED BY THE SUPREME COURT IN THE UOI AND ANR VS. AZADI BACHAO ANDOLAN AND ANR (263 ITR 708) AND ALSO BY CIRCULAR MO. 333 DATED 2 APRIL 1982. ACCORDINGLY, THE SAID PROVISION S OF THE INDIA-NETHERLANDS TAX TREATY ARE REPRODUCED HEREUND ER: 'FEES FOR TECHNICAL SERVICES' MEANS PAYMENTS OF ANY KIND TO ANY PERSON IN CONSIDERATION FOR THE RENDERING OF ANY TECHNICAL OR CONSULTANCY SERVICES (INCLUDING THROUGH THE PROVISION OF SERVICES OF TECHNICAL OR OTHER PERSONNEL) IF SUCH SERVICES: (A)..... (B) MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW OR PROCESSES, OR CONSIST OF THE DEVELOPMENT AND TRANSFER OF A TECHNICAL PLAN OR TECHNICAL DESIGN. ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 10 - ACCORDINGLY, UNLIKE THE DEFINITION UNDER THE ACT, T HE DEFINITION UNDER THE TAX TREATY IS RESTRICTIVE AND FOR ANY SERVICE T O BE CONSIDERED AS FTS UNDER THE INDIA-NETHERLAND TAX TREATY, THE FOLL OWING CONDITIONS NEEDS TO BE FULFILLED: 1. THE SERVICES RENDERED NEEDS TO BE TECHNICAL OR CONSULTANCY IN NATURE; AND 2. SUCH SERVICE SHOULD 'MAKE AVAILABLE' TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW OR PROCESSES OR SHOULD CONSIST OF DEVELOPMENT AND TRANSFER OF TECHNICAL PLAN OR DESIG N. RELIANCE ON THE MOU TO THE INDIA - US TAX TREATY AS AIDS TO THE CONSTRUCTION THE TERMS 'TECHNICAL' OR 'MAKE AVAILABLE' ARE NOT D EFINED UNDER THE INDIA-NETHERLANDS TAX TREATY. HOWEVER, THE SAME ARE EXPLAINED IN THE MOU TO THE INDIA-USA TAX TREATY. ACCORDINGLY, RELIA NCE MAY BE PLACED ON THE SAID MOU FOR INTERPRETING THE SAID TE RMS. IN THIS REGARD, REFERENCE MAY BE MADE TO THE NOTIFICATION N O. 11050/F.NO.501/2/83-FTD WHICH SPECIFIES THAT THE MO U TO THE INDIA-USA TAX TREATY MAY BE USED FOR THE PURPOSE OF INTERPRETING THE PROVISIONS OF INDIA-NETHERLANDS TAX TREATY. FURTHER , REFERENCE MAY ALSO BE MADE TO VARIOUS JUDICIAL PRECEDENTS WHICH H AVE LAID DOWN THAT THE MOU TO THE INDIA-USA TAX TREATY MAY BE USE D AS AN INTERPRETATIVE AID FOR IDENTICAL/ SIMILAR PROVISION S IN OTHER BILATERAL TAX TREATIES. COMMERCIAL SERVICES NOT TAXABLE AS FTS UNDER ARTICL E 12 OF THE INDIA - NETHERLANDS TAX TREATY THE SAID MOU DEFINES 'TECHNICAL SERVICES' AS SUCH ' SERVICES REQUIRING EXPERTISE IN A TECHNOLOGY'. FURTHER, THE MOU ALSO CLARIFIES THAT CONSULTANCY SERVICES WHICH ARE NOT OF A TECHNICAL N ATURE CAN NOT BE INCLUDED SERVICES. IT IS SUBMITTED THAT ON PERUSAL OF THE SERVICES REN DERED UNDER THE SSA, IT IS EVIDENT THAT THE SAID SERVICES ARE COMMERCIAL IN NATURE AND NOT TECHNICAL. IN THIS REGARD, RELIANCE MAY ALSO BE PLA CED ON EXAMPLE 7 GIVEN UNDER THE MOU TO THE INDIA-USA TAX TREATY, RE PRODUCED BELOW FOR EASY REFERENCE: EXAMPLE 7 FACTS: THE INDIAN VEGETABLE OIL MANUFACTURING FIRM HAS MAS TERED THE SCIENCE OF PRODUCING CHOLESTEROL-FREE OIL AND WISHES TO MAR KET THE PRODUCT ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 11 - WORLDWIDE. IT HIRES AN AMERICAN MARKETING CONSULTIN G FIRM TO DO A COMPUTER SIMULATION OF THE WORLD MARKET FOR SUCH OI L AND TO ADVERSE IT ON MARKETING STRATEGIES. ARE THE FEES PAID TO TH E U.S. COMPANY FOR INCLUDED SERVICES? ANALYSIS: THE FEES WOULD NOT BE FOR INCLUDED SERVICES. THE AM ERICAN COMPANY IS PROVIDING A CONSULTANCY SERVICE WHICH INVOLVES T HE USE OF SUBSTANTIAL TECHNICAL SKILL AND EXPERTISE. IT IS NO T, HOWEVER, MAKING AVAILABLE TO THE INDIAN COMPANY ANY TECHNICAL EXPER IENCE, KNOWLEDGE OR SKILL, ETC., NOR IS IT TRANSFERRING A TECHNICAL PLAN OR DESIGN. WHAT IS TRANSFERRED TO THE INDIAN COMPANY THROUGH THE SERVI CE CONTRACT IS COMMERCIAL INFORMATION. THE FACT THAT TECHNICAL SKI LLS WERE REQUIRED BY THE PERFORMER OF THE SERVICE IN ORDER TO PERFORM THE CO MMERCIAL INFORMATION SERVICE DOES NOT MAKE THE SERVICE A TEC HNICAL SERVICE WITHIN THE MEANING OF PARAGRAPH 4(B). IN VIEW OF THE ABOVE, IT IS VERY CLEAR THAT RENDITI ON OF CONSULTANCY SERVICES WHICH IMPART COMMERCIAL INFORMATION OR KNO WLEDGE WOULD NOT CONSTITUTE TECHNICAL SERVICES AND HENCE WOULD N OT BE TAXABLE UNDER THE INDIA - NETHERLANDS TAX TREATY. THE SAME VIEW HAS ALSO BEEN UPHELD IN THE FOLLOWING DECISIONS: 1. DCIT VS. BOSTON CONSULTING GROUP PTE LTD. - 94 I TD 31 (MUM. ITAT) 2. BHARAT PETROLEUM CORPORATION LTD. VS. JCIT - 14 SOT 307 (MUM. ITAT) 3. WOCKHARDT LIMITED VS ACIT (MUM. ITAT) ACCORDINGLY, AS THE SERVICES RENDERED BY THE APPELL ANT ARE IN NATURE OF RENDERING COMMERCIAL INFORMATION/ KNOWLEDGE AND RELATED SUPPORT SERVICES TO HLPL/ HPPL/ SHGPL, THE SAME CANNOT BE H ELD TO BE TECHNICAL IN NATURE RESTRICTIVE DEFINITION UNDER THE INDIA - NETHERLAND S TAX TREATY- USE OF THE TERM 'MAKE AVAILABLE' WITHOUT PREJUDICE TO THE ABOVE AND EVEN FOR SAKE OF ARGUMENT IT IS ASSUMED THAT THE SERVICES RENDERED ARE TECHNICAL IN NATURE, THEY WOULD STILL NOT QUALIFY AS FTS AS PER ARTICLE 12 OF THE INDIA - NETHERLANDS TAX TREATY AS THEY DO NOT MAKE AVAILABL E ANY TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, ETC AS PER THE DEFINI TION IN THE INDIA - NETHERLANDS TAX TREATY. WITH REGARD TO MAKING AVAIL ABLE TECHNICAL KNOWLEDGE ETC, THE MOD EXPLAINS THAT ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 12 - 'TECHNOLOGY WILL BE CONSIDERED 'MADE AVAILABLE' WHE N THE PERSON ACQUIRING THE SERVICE IN ENABLED TO APPLY THE TECHN OLOGY. THE FACT THAT THE PROVISION OF THE SERVICE MAY REQUIRE TECHN ICAL INPUT BY THE PERSON PROVIDING THE SERVICE DOES NOT PER SE MEAN T HAT TECHNICAL KNOWLEDGE, SKILL, ETC., ARE MADE AVAILABLE TO THE P ERSON PURCHASING THE SERVICE, WITHIN THE MEANING OF PARAGRAPH 4(B). SIMILARLY, THE USE OF A PRODUCT WHICH EMBODIES TECHNOLOGY SHALL NOT PE R SE BE CONSIDERED TO MAKE THE TECHNOLOGY AVAILABLE. THE TERM 'MAKE AVAILABLE' HAS BEEN FURTHER EXPLAINE D BY THE MUMBAI ITAT IN THE CASE OF RAYMOND LIMITED VS. DCIT (86 ITD 791) WHICH UPHELD THE PRINCIPLE THAT UNLESS TECHNICAL SERVICES ARE RENDERED WHICH WOULD ENABLE THE RECIPIENT TO APPLY THE TECHN OLOGY, IT WOULD NOT CONSTITUTE 'FEES FOR INCLUDED SERVICES' UNDER T HE TAX TREATY. FURTHER, THE ITAT LAID DOWN THE FOLLOWING CRITERIA TO DETERMINE WHETHER A SERVICE WOULD SATISFY THE 'MAKE AVAILABLE ' CONDITION TO BE CLASSIFIED AS FTS UNDER THE INDIA-US TAX TREATY MERE RENDERING OF SERVICES IS NOT ROPED INTO FTS UNLESS THE PERSON UTILIZING THE SERVICES IS ABLE TO MAKE USE O F THE TECHNICAL KNOWLEDGE, ETC, BY HIMSELF IN HIS BUSINESS OR FOR H IS OWN' BENEFIT AND WITHOUT RECOURSE TO THE PERFORMER OF THE SERVICES I N FUTURE. THE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, E TC, MUST REMAIN WITH THE PERSON UTILIZING THE SERVICES EVEN AFTER THE RE NDERING OF THE SERVICES HAS COME TO AN END. A TRANSMISSION OF THE TECHNICAL KNOWLEDGE, EX PERIENCE, SKILL, ETC, FROM THE PERSON RENDERING THE SERVICES TO THE PERSO N UTILIZING THE SAME IS CONTEMPLATED BY THE ARTICLE. SOME SORT OF DURABILITY OR PERMANENCY OF THE RESULT OF THE 'RENDERING OF SERVICES' IS ENVISAGED WHICH WILL REM AIN AT THE DISPOSAL OF THE PERSON UTILIZING THE SERVICES. THE FRUITS OF THE SERVICES SHOULD REMAIN AVAI LABLE TO THE PERSON UTILIZING THE SERVICES IN SOME CONCRETE SHAPE SUCH AS TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, ETC. ADDITIONALLY, ONE MAY ALSO REFER TO THE DECISION OF THE AUTHORITY FOR ADVANCE RULING IN THE CASE OF INTERTEK TESTING SERVICES INDIA (P) LTD., IN RE (307 ITR 418) HAD OBSERVED: 'BY MAKING AVAILABLE THE TECHNICAL SKILLS OR KNOW-HOW, THE RECIPIENT OF SERVICE WILL GET EQUIPPED WITH THAT KN OWLEDGE OR EXPERTISE AND BE ABLE TO MAKE USE OF IT IN FUTURE, INDEPENDENT OF THE SERVICE PROVIDER. IN OTHER WORDS, TO FIT INTO THE TERMINOLOGY 'MAKE AVAILABLE', THE TECHNICAL KNOWLEDGE, SKILLS ETC MUS T REMAIN WITH THE ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 13 - PERSON RECEIVING THE SERVICES EVEN AFTER THE PARTIC ULAR CONTRACT COMES TO AN END. THE SERVICES OFFERED MAY BE THE PRODUCT OF INTENSE TECHNOLOGICAL EFFORT AND LOT OF TECHNICAL KNOWLEDGE AND EXPERIENCE OF THE SERVICE PROVIDER WOULD HAVE GONE INTO IT. BU T, THAT IS NOT ENOUGH TO FALL WITHIN THE DESCRIPTION OF SERVICES WHICH MA KE AVAILABLE THE TECHNICAL KNOWLEDGE, ETC. THE TECHNICAL KNOWLEDGE OR SKILLS OF THE PROVIDER SHOULD BE IMPARTED TO AND AB SORBED BY THE RECEIVER SO THAT THERE RECEIVER CAN DEPLOY SIMILAR TECHNOLOGY OR TECHNIQUES IN FUTURE WITHOUT DEPENDING ON THE PROVI DER. IN THIS REGARD, FURTHER REFERENCE MAY BE DRAWN TO T HE EXAMPLE 4 GIVEN UNDER THE MOD TO THE INDIA-USA TAX TREATY WHICH EXP LAINS THE CONCEPT OF 'MAKE AVAILABLE'. THE SAID EXAMPLE IS RE PRODUCED BELOW. EXAMPLE 4 FACTS: A U.S. MANUFACTURER OPERATES A WALLBOARD FABRICATIO N PLANT OUTSIDE INDIA. AN INDIAN BUILDER HIRES THE U. S. COMPANY TO PRODUCE WALLBOARD AT THAT PLANT FOR A FEE. THE INDIAN COMPA NY PROVIDES THE RAW MATERIALS, AND THE U.S. MANUFACTURER FABRICATES THE WALLBOARD IN ITS PLANT, USING ADVANCED TECHNOLOGY. ARE THE FEES IN THIS EXAMPLE PAYMENTS FOR INCLUDED SERVICES? ANALYSIS: THE FEES WOULD NOT BE FOR INCLUDED SERVICES. ALTHOU GH THE U.S. COMPANY IS CLEARLY PERFORMING A TECHNICAL SERVICE, NO TECHNICAL KNOWLEDGE, SKILL, ETC., ARE MADE AVAILABLE TO THE I NDIAN COMPANY, NOR IS THERE ANY DEVELOPMENT AND TRANSFER OF A TECHNICA L PLANT OR DESIGN. THE U. S. COMPANY IS MERELY PERFORMING A CONTRACT M ANUFACTURING SERVICE. BASED ON THE ABOVE JUDICIAL PRECEDENTS ONE CAN SUMM ARIZE THAT TECHNICAL OR CONSULTANCY SERVICES WOULD 'MAKE AVAIL ABLE' WHEN THE RENDITION OF SUCH TECHNICAL SERVICES ENABLES THE RE CIPIENT OF THE SERVICES TO APPLY THE TECHNOLOGY IMBIBED IN THE SAI D SERVICES IN FUTURE WITHOUT RELYING AGAIN ON THE SERVICE PROVIDER. SIMI LAR VIEW HAS ALSO BEEN ADOPTED BY THE JUDICIARY AT VARIOUS FORUMS IN THE FOLLOWING CASES: 1. DCIT VS. BOSTON CONSULTING GROUP PTE LTD. - 94 I TD 31 (MUM. ITAT) 2. BHARAT PETROLEUM CORPORATION LTD. VS. JCIT - 14 SOT 307 (MU. ITAT) 3. MAHINDRA & MAHINDRA LIMITED VS. DCIT - 313 ITR 2 63 (MUM. ITAT)(SB) ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 14 - 4. WOCKHARDT LIMITED VS ACIT (MUM. ITAT) 5. SHERATON INTERNATIONAL INC - 313 ITR 267 (DELHI HC) 6. BHARATI AXA GENERAL INSURANCE CO. LTD., IN RE - 326 ITR 477 (AAR) 7. ERNST & YOUNG (P) LTD., IN RE - 323 ITR 184 (AAR ) 8. WORLEY PARSONS SERVICES (P) LTD., IN RE - 313 IT R 74 (AAR) 9. SCIENTIFIC ATLANTA INC - 33 SOT 220 (MUM. ITAT) 10. INVENSYS SYSTEMS INC-317 ITR438 (AAR) 11. ANAPHARM INC, IN RE - 305 ITR 394 (AAR) 12. NQA QUALITY SYSTEMS REGISTRAR LTD. VS. DCIT - 9 2 TTJ 946 (DELHI ITAT) ADDITIONALLY, YOUR HONOURS' ATTENTION IS DRAWN TO T HE PROTOCOL TO THE INDIA - NETHERLANDS TAX TREATY. AS PER THE SAID PRO TOCOL, IF AFTER SIGNING OF THE INDIA-NETHERLANDS TAX TREATY, INDIA SIGNS A TAX TREATY WITH ANY OECD MEMBER COUNTRY WHICH LIMIT INDIA'S RI GHT OF TAXATION AT SOURCE OF DIVIDENDS, INTERESTS, ROYALTIES, FEES FOR TECHNICAL SERVICES OR PAYMENTS FOR THE USE OF THE EQUIPMENT TO A RATE LOWER OR A SCOPE MORE RESTRICTED THAN THE RATE OR SCOPE PROVIDED UND ER THE INDIA- NETHERLANDS TAX TREATY, THAN SUCH RESTRICTED RATE O R SCOPE SHALL APPLY TO THE INDIA-NETHERLANDS TAX TREATY ALSO. COP Y OF THE INDIA- NETHERLANDS TAX TREATY IS ALREADY ATTACHED FOR YOUR HONOURS' REFERENCE. PORTUGAL IS MEMBER COUNTRY OF OECD. INDIA HAS SIGNE D A TAX TREATY WITH PORTUGAL ON 1 APRIL 1998 IE AFTER THE INDIA-NE THERLANDS TAX TREATY. RELEVANT EXTRACT OF ARTICLE 12 OF INDIA - P ORTUGAL TAX TREATY IS REPRODUCED AS UNDER: '4. FOR THE PURPOSES OF THIS ARTICLE, 'FEES FOR INC LUDED SERVICES' MEANS PAYMENTS OF ANY KIND, OTHER THAN THOSE MENTIO NED IN ARTICLE 14 AND 15 OF THIS CONVENTION, TO ANY PERSON IN CONSIDE RATION OF THE RENDERING OF ANY TECHNICAL OR CONSULTANCY SERVICES (INCLUDING THROUGH THE PROVISION OF SERVICES OF TECHNICAL OR OTHER PER SONNEL) IF SUCH SERVICES: (A) ........... (B) MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW, OR PROCESSES OR CONSIST OF THE DEVELOPMENT AND TRAN SFER OF A TECHNICAL PLAN OR TECHNICAL DESIGN WHICH ENABLES THE PERSON ACQUIRING THE SERVICES TO APPLY THE TECHNOLOGY CONTAINED THEREIN. ' THE ABOVE CLAUSE EXPLICITLY MENTIONS THAT PAYMENT W OULD BE CONSIDERED AS FEES FOR INCLUDED/ TECHNICAL SERVICES ONLY WHERE RENDERING OF SUCH TECHNICAL OR CONSULTANCY SERVICES MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL ETC WHICH EN ABLES THE SERVICE ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 15 - RECIPIENT TO APPLY THE TECHNOLOGY IMBIBED IN SUCH S ERVICES BY HIMSELF. THE MUMBAI ITAT IN THE CASE OF RAYMOND LTD. VS DCIT (SUPRA) HAS ACKNOWLEDGED THIS EXPLICIT EXPLANATION OF THE TERM 'MAKE AVAILABLE' IN THE CONTEXT OF THE INDIA-SINGAPORE TAX TREATY WHICH ALSO CONTAINS SIMILAR WORDINGS. GIVEN THE SAME, THE NARROWER PROV ISIONS OF THE INDIA-PORTUGAL TAX TREATY CAN ALSO BE APPLIED IN TH E INSTANT CASE. PRAYER IN THE PRESENT CASE, UNDER THE TERMS OF THE SSAS, T HE APPELLANT WAS CONTRACTED TO RENDER THE SUPPORT SERVICES IN THE AR EAS OF COMMERCIAL SUPPORT, LOGISTICS, PUBLIC AFFAIRS, HUMAN RESOURCE MATTERS, FINANCE, BANKING AND TREASURY, ADMINISTRATIVE, LEGAL, AND HE ALTHCARE SERVICES. THE SERVICES ARE PURELY COMMERCIAL IN NATURE WHICH WOULD ASSIST HLPL/ HPPL/ SHGPL IN FINALIZING COMMERCIAL TERMS WI TH THEIR CUSTOMERS/ SERVICE PROVIDERS. THE SAID SERVICES DO NOT INVOLVE ANY ELEMENT OF TECHNOLOGY CONCERNING THE RECIPIENTS' BU SINESS. ACCORDINGLY, THE SAID SERVICES DO NOT FULFILL THE C ONDITION THAT THE SERVICES RENDERED SHOULD BE TECHNICAL IN NATURE AND SHOULD MAKE AVAILABLE THE TECHNOLOGY THEREIN TO THE SERVICE REC IPIENT. IN VIEW OF THE SAME, IT IS PRAYED THAT THE AFORESAI D SERVICES WOULD NOT BE TAXABLE AS FTS AS PER ARTICLE 12 OF THE INDIA - NETHERLANDS TAX TREATY. GROUND 2 - WITHOUT PREJUDICE TO GROUND NO. 1, REIMB URSEMENT OF EXPENSES NOT TAXABLE AS 'FEES FOR TECHNICAL SERVICE S' UNDER ARTICLE 12 OF THE INDIA-NETHERLANDS TAX TREATY THE APPELLANT RECEIVED RS.95,10,671/- AS REIMBURSEM ENT OF EXPENDITURE FROM SHGPL IN COURSE OF RENDERING SERVI CES TO SHGPL. THE SAID EXPENSES ARE MAINLY IN THE NATURE OF OUT O F POCKET EXPENSES LIKE TRAVEL, LODGING AND BOARDING, VISA FEES ETC OF THE EMPLOYEES OF THE APPELLANT WHO RENDERED SERVICES TO SHGPL UNDER THE SSA. THE EXPENSES SO INCURRED WERE REIMBURSED BY SHGPL ON A COST-TO-COST BASIS WITHOUT ANY MARK UP. ANOTHER WAY TO LOOK AT THE SAME WOULD BE THAT IF TH E SAID EXPENSES WERE ACTUALLY INCURRED BY SHGPL ITSELF THEN SUCH IN CURRING OF EXPENDITURE WOULD NOT BE REGARDED AS INCOME IN THE HANDS OF THE APPELLANT. THE APPELLANT THEREFORE HUMBLY SUBMITS T HAT JUST BECAUSE IT HAS INITIALLY INCURRED THE EXPENDITURE FROM A CO NVENIENCE PERSPECTIVE AND THEN RECOVERED THE SAME FROM SHGPL WOULD NOT ALTER THE NATURE OF THE RECEIPT SO AS TO BE REGARDE D AS INCOME IN THE HANDS OF THE APPELLANT. ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 16 - IN THIS REGARD, ATTENTION OF THE HON'BLE MEMBERS IS DRAWN TO THE VARIOUS JUDICIAL PRECEDENTS WHICH SUPPORT THE CONTE NTION OF THE APPELLANT THAT REIMBURSEMENT OF EXPENDITURE RECEIVE D IS NOT TO TREATED AS INCOME IN THE HANDS OF THE APPELLANT 1. SIEMENS AKTIONGELGSELLSCHAFT ( 310 ITR 320) (BOM .) 2. DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION) VS KRUPP UDHE GMBH (2010-TIOL-214-HC-MUM-IT) (BOM.) 3. MAHINDRA AND MAHINDRA LTD. VS DCIT (313 ITR 263) (AT) (MUM. ITAT)(SB) 4. COMPAGNIE FRANCAISE D'ETUDES ET DE CONSTRUCTION V. INSPECTING ASSISTANT COMMISSIONER (8 ITD 215) 5. CIT V. DUNLOP RUBBER CO LTD (142 ITR 493)(CAL) 6. CIT VS SG PGNATALE (124 ITR 391)(GUJ.) IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE REIM BURSEMENT OF EXPENDITURE RECEIVED BY THE APPELLANT WOULD NOT CON STITUTE INCOME IN THE HANDS OF THE APPELLANT AS CONTEMPLATED UNDER SE CTION 2(24) OF THE ACT AND THEREFORE, NOT TAXABLE IN THE HANDS OF THE APPELLANT. GROUND 3 - CONSIDERING THE HIGHER OF THE AMOUNTS ME NTIONED IN THE TRANSFER PRICING CERTIFICATE (I.E. FORM 3CEB) OF TH E APPELLANT AND THE INFORMATION AS PROVIDED BY HPPL, HLPL AND SHGPL UNDER SECTION 133(6) OF THE ACT AS THE TOTA! RECEIPTS OF THE APPELLANT (I.E. RS 11,68,49,305) THE LEARNED AO COMPUTED THE TOTAL INCOME OF THE APP ELLANT BY CONSIDERING THE DETAILS PROVIDED BY HPPL, HLPL AND SHGPL AND IGNORING THE DETAILS PROVIDED BY THE APPELLANT. DURING THE COURSE OF THE APPEAL PROCEEDINGS, IT WAS SUBMITTED THAT THE DIFFERENCE BETWEEN THE REVENUES REPORTED BY THE APPELLANT AND INFORMATION FURNISHED BY HLPL, HPPL AND SHGPL DIFFE RED ON ACCOUNT OF THE FOLLOWING I) ADDITIONAL SUM RECORDED BY SHGPL WHICH WAS REVER SED BY IT IN SUBSEQUENT YEAR - RS 41,97,783 II) DIFFERENCE ON ACCOUNT OF DIFFERENT EXCHANGE RAT ES APPLIED BY THE APPELLANT VIS--VIS HLPL, HPPL AND SHGPL - R S 46,29,322. THE HON'BLE CIT(A) HOWEVER DID NOT CONSIDER THE EXP LANATIONS FURNISHED BY THE APPELLANT AND UPHELD THE DECISION OF THE LEARNED AO. SUBSEQUENT TO THE PASSING OF THE APPEAL ORDER BY TH E CIT(A), THE LEARNED AO FINALIZED THE PENALTY PROCEEDINGS IN THE APPELLANT'S CASE FOR THE YEAR UNDER CONSIDERATION AND LEVIED PENALTY ON THE ADDITIONS ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 17 - MADE BY HIM. AGGRIEVED BY THE SAME, APPEAL WAS PREF ERRED WITH THE CIT(A). THE APPELLANT REITERATED THE REASONS FOR DIFFERENCE S BEFORE THE CIT(A) IN COURSE OF THE PENALTY APPEAL PROCEEDINGS. THE HON'BLE CIT(A) PASSED DIRECTIONS TO THE LEARNED AO TO VERIF Y THE APPELLANT'S CLAIM OF DIFFERENCE. PURSUANT TO THE SAID DIRECTION, THE APPELLANT SUBMI TTED A DETAILED RECONCILIATION OF THE DIFFERENCES VIS-A-VIS THE AMO UNTS REPORTED BY HLPL, HPPL AND SHGPL. THE LEARNED AO, HAVING SATISF IED HIMSELF WITH THE GENUINENESS OF THE APPELLANT'S CLAIM, PASS ED AN ORDER UNDER SECTION 154 OF THE ACT ACCEPTING THE CLAIM OF APPEL LANT. ACCORDINGLY SINCE THE LEARNED AO HAS PASSED THE ORD ER UNDER SECTION 154 ACCEPTING THE CLAIM OF APPELLANT, THIS GROUND O F APPEAL SHOULD STAND RESOLVED. 4.1) FROM THE SIDE OF THE REVENUE DEPARTMENT LD. CI T (DRS) MR. S.K.GUPTA AND MR. D.C.PATWARI APPEARED. THEY HA VE ALSO PLACED ON RECORD A WRITTEN SUBMISSION AND THE SIGNI FICANT PARAGRAPHS ARE AS UNDER :- THE ASSESSEE COMPANY HAS ENTERED INTO SUPPORT SERV ICES AGREEMENT WITH ITS GROUP COMPANIES CARRYING OUT BUSINESS ACTI VITY IN INDIA I.E. M/S HAZIRA PORT PRIVATE LIMITED, M/S SHELL HAZIRA G AS PRIVATE LIMITED AND M/S HAZIRA LNG PRIVATE LIMITED THROUGH IDENTICALLY WORDED AGREEMENTS SIGNED ON SAME DATE I.E. 28-2-200 3, HOWEVER, EFFECTIVE FROM 1-4-2002. THESE AGREEMENTS ARE FOR 1 0 YEARS FROM EFFECTIVE DATE FOR ALL THE THREE INDIAN COMPANIES. NATURE OF SERVICES PROVIDED IN ALL HE THREE AGREEMENTS ARE EXACTLY SIM ILAR AND ARE AS UNDER : COMMERCIAL SUPPORT LOGISTICS, PUBLIC AFFAIRS, HUMAN RESOURCE MATTERS, FINANCES, BANKING AND TREASURY, ADMINISTRATIVE, LEGAL, AND HEALTHCARE SERVICES. HOWEVER, IT IS CLEARLY MENTIONED IN THE AGREEMENTS THAT EMPLOYEES OF M/S SHELL INTERNATIONAL B.V. (ASSESSEE ) WILL NOT BE COMING TO INDIA FOR RENDERING THE SERVICES. ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 18 - IT IS TRITE LAW THAT NATURE OF INCOME IS TO BE SEEN IN THE HAND OF EARNER OF THE INCOME I.E. IN THE PRESENT CASE IN TH E HAND OF THE ASSESSEE AND NOT IN THE HAND OF RECIPIENT. THESE SE RVICES MAY APPEAR TO BE BROAD COMMERCIAL SERVICES BUT ARE TO BE PROVI DED BY THE EMPLOYEES OF THE ASSESSEE WHO ARE HAVING TECHNICAL KNOWLEDGE, EXPERIENCE AND SKILL IN RESPECTIVE FIELD I.E. LOGIS TICS, LEGAL SERVICES, ETC. THESE SERVICES HAVE BEEN PROVIDED ON LONG TERM BASIS TO THE INDIAN ENTITIES AS THESE ARE NEWLY ESTABLISHED ENTI TIES IN INDIA OF THE SHELL GROUP AND IN ABOVE BROAD CATEGORIES OF SERVIC ES THEY WILL BE REQUIRING SERVICES FROM THE ASSESSEE COMPANY. IT IS CLEAR THAT INDIAN ENTITIES WILL BE RECEIVING EMAILS / INSTRUCTIONS FR OM THE ASSESSEE TO CARRY OUT IMPLEMENTATION OF THESE SERVICES IN THEIR INDIAN BUSINESS. SINCE TECHNICAL PERSONNELS OF THE ASSESSEE WILL NOT BE VISITING INDIA GENERALLY AND QUANTUM OF THESE SERVICES ARE HUGE, I NDIAN ENTITIES THROUGH THEIR INDIAN EMPLOYEES WILL BE ABSOBING AND UTILIZING THESE TECHNICAL KNOWLEDGE, EXPERIENCE AND SKILL RECEIVED THROUGH INSTRUCTIONS / EMAILS, ETC. IN THEIR BUSINESS OPERA TION. 3. THE ISSUE REGARDING WHETHER THESE SERVICES ARE FEES FOR TECHNICAL SERVICES, ARE TO BE AS PER PARAGRAPH 5 OF ARTICLE 1 2 OF INDIAN NETHERLAND TREATY. THE TREATY PROVIDES THAT ITS PAY MENTS OF ANY KIND TO ANY PERSON IN CONSIDERATION FOR THE RENDERING OF ANY TECHNICAL OR CONSULTANCY SERVICES, IF SUCH SERVICES : A) ARE ANCILLARY AND SUBSIDIARY TO THE APPLICATION OR ENJOYMENT OF THE RIGHT, PROPERTY OR INFORMATION FOR WHICH A PAYMENT DESCRIBED IN PARAGRAPH 4 OF THIS ARTICLE IS RECEIVED; OR B) MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW OR PROCESSES, OR CONSIST OF H DEVELOPMENT AND TRANS FER OF A TECHNICAL PLAN OR TECHNICAL DESIGN. NO FURTHER DEFINITION OF ANY WORD, SUCH AS TECHNICA L SERVICES OR CONSULTANCY SERVICES OR MAKE AVAILABLE HAS BEEN GIVEN IN THE TREATY. IN PARAGRAPH 2 OF ARTICLE 3 OF INDIAN NETHE RLAND TREATY, IT HAS BEEN PROVIDED THAT AS REGARD THE APPLICATION OF TH E CONVENTION BY ONE OF THE STATES IF TERM IS NOT DEFINED HEREIN SHA LL, UNLESS THE CONTEXT OTHERWISE REQUIRES, HAVE THE MEANING WHICH IT HAS U NDER THE LAW OF THAT STATE CONCERNING THE TAXES TO WHICH THE CONVEN TION APPLIES. IT IS CLEAR FROM ABOVE THAT THESE TERMS ARE TO BE DEFINED AS PER DOMESTIC LAW AS PER THE COUNTRY APPLYING THE TREATY. IN THE PRESENT CASE THESE TERMS ARE TO BE DEFINED AS PROVIDED IN DOMESTIC LAW OF INDIA. HONOURABLE SUPREME COURT HAS HELD THAT THE ADVICE R ENDERED BY THE LAWYER WOULD BE A PIECE OF TECHNICAL SERVICE IN THE CASE OF CONTINENTAL CONSTRUCTION LD. VS. CIT (195 ITR 811) (SC). IT WAS FURTHER HELD THAT SERVICES PROVIDED BY HOTEL CONSUL TANTS AND SPECIALISTS TO A FOREIGN HOTEL WAS TECHNICAL SERVIC E IN THE CASE OF CBDT VS. OBEROI (INDIA) (P.) LTD., 97 TAXMANN 453 ( SC). ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 19 - IN THE SAID CASE HONOURABLE SUPREME COURT WAS INTER PRETING SECTION 80 O WHICH IS GIVEN AS UNDER : '80-O.WHER THE GROSS TOTAL INCOME OF AN ASSESSEE, B EING AN INDIAN COMPANY OR A PERSON OTHER THAN A COMPANY WHO IS RESIDENT IN INDIA, INCLUDES ANY INCOME BY WAY OF RO YALTY, COMMISSION, FEES OR ANY SIMILAR PAYMENT RECEIVED BY THE ASSESSEE FROM THE GOVERNMENT OF A FOREIGN STATE OR A FOREIGN ENTERPRISE IN CONSIDERATION FOR THE USE OUTSIDE IND IA OF ANY PATENT, INVENTION, MODEL, DESIGN, SECRET FORMULA OR PROCESS, OR SIMILAR PROPERTY RIGHT, OR INFORMATION CONCERN ING INDUSTRIAL, COMMERCIAL OR SCIENTIFIC KNOWLEDGE EXPERIENCE OR SKILL MADE AVAILABLE PROVIDED OR AGREED TO BE MADE AVAILABLE O R PROVIDED TO SUCH GOVERNMENT OR ENTERPRISE BY T HE ASSESSEE, OR IN CONSIDERATION OF TECHNICAL SERVICES RENDE RED OR AGREED TO BE RENDERED OUTSIDE INDIA TO SUCH GOV ERNMENT OR ENTERPRISE BY THE ASSESSEE, UNDER AN AGREEMENT APPR OVED BY THE BOARD IN THIS BEHALF, AND SUCH INCOME IS RECEIV ED IN CONVERTIBLE FOREIGN EXCHANGE IN INDIA, OR HAVIN G BEEN RECEIVED IN CONVERTIBLE FOREIGN EXCHANGE OUT SIDE INDIA OR HAVING BEEN CONVERTED INTO CONVERTIBLE FOREIGN E XCHANGE OUTSIDE INDIA, IS BROUGHT INTO INDIA, BY OR ON BEHA LF OF THE ASSESSEE IN ACCORDANCE WITH ANY LAW FOR THE TIME BE ING IN FORCE FOR REGULATING PAYMENTS AND DEALINGS IN FOREIGN EXC HANGE, THERE SHALL BE ALLOWED, IN ACCORDANCE WITH AND SUBJ ECT TO THE PROVISIONS OF THIS SECTION, A DEDUCTION OF THE WHOL E OF THE INCOME SO RECEIVED IN, OR BROUGHT INTO INDIA IN COM PUTING THE TOTAL INCOME OF THE ASSESSEE THUS IT CAN BE SEEN THAT THE ASSESSEE COMPANY WAS P ROVIDING TRAINING THROUGH SERVICES TO VARIOUS INDIAN ENTITIE S ON LONG TERM BASIS SO THAT THEY CAN CARRY OUT THEIR BUSINESS FUN CTIONS. IN VIEW OF SAME THE ACTIVITY OF THE ASSESSEE WILL -, ALSO BE C OVERED AS ROYALTY UNDER PARAGRAPH 4 OF ARTICLE 12 OF INDIAN NETHERLAN D TREATY IN RESPECT OF PROVIDING INFORMATION CONCERNING INDUSTR IAL, COMMERCIAL OR SCIENTIFIC EXPERIENCE. THE WORD 'MADE AVAILABLE' SHOULD ALSO BE INTERPRETED ON THE BASIS OF ABOVE DECISION OF HONOU RABLE SUPREME COURT IN THE CASE OF OBEROI HOTELS WORD 'MADE AVAIL ABLE' HAS BEEN USED IN SECTION 80-O AND IT IS THE ONLY PLACE WHETH ER ANY DOMESTIC LAW WORD 'MADE AVAILABLE' HAS BEEN USED. IT IS TO BE CLARIFIED THAT THE FIRST CASE DECIDED B Y HONOURABLE ITAT, MUMBAI ON THE ISSUE OF MEANING OF WORD 'MADE AVAILABLE' IN THE CASE OF RAYMOND LIMITED VS. DCIT, 86 ITD 791 AN D BY HONOURABLE KOLKATA TRIBUNAL IN THE CASE OF CESC LTD . VS. DCIT, 87 ITD 653 WERE ON ONE TIME ISSUE OF SERVICES PROVIDED BY FOREIGN ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 20 - COMPANIES ON THE PROPOSED ISSUE OF GDRS IN INTERNAT IONAL MARKET AND ALL OTHER DECISIONS, THESE ORDERS WERE FOLLOWED WITHOUT DIFFERENTIATING ONE TIME SERVICE I.E. SERVICE FOR I SSUE OF GDR OR LONG TERM SERVICE CONTRACTS LIKE IN THE PRESENT CASE. IN THE CASE OF RAYMOND LIMITED VS. DCIT, HONOURABLE ITAT HAS OBSERVED IN PARA 92 AS UNDER : 'MERE RENDERING OF SERVICES IS NOT ROPED IN UNLESS THE PERSON UTILIZING THE SERVICES IS ABLE TO MAKE USE OF THE T ECHNICAL KNOWLEDGE, ETC. BY HIMSELF IN HIS BUSINESS OR FOR H IS OWN BENEFIT AND, WITHOUT RECOURSE TO THE PERFORMER OF THE SERVI CES IN FUTURE. THE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL ETC. MUS T REMAIN WITH THE PERSON UTILIZING THE SERVICES EVEN AFTER T HE RENDERING OF THE SERVICES HAS COME TO AN END. THE A TRANSMISSION OF THE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILLS, ETC. FROM THE PERSON RENDERING THE SERVICES TO THE PERSON UTILIZING THE SAME IS CONTEMPLATED BY THE ARTICLE. SOME SORT OF DURABILIT Y OR PERMANENCY OF THE RESULT OF THE 'RENDERING OF SERVI CES' IS ENVISAGED WHICH WILL REMAIN AT THE DISPOSAL OF THE PERSON UTILIZING THE SERVICES. THE FRUITS OF THE SERVICES SHOULD REMAIN AVAILABLE TO THE PERSON UTILIZING THE SERVICES IN S OME CONCRETE SHAPE SUCH AS TECHNICAL KNOWLEDGE, EXPERIENCE, SKIL LS, ETC.' WHICH CLEARLY SHOW THAT IN PRESENT CASE THERE IS TR ANSMISSION OF TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, ETC. FROM T HE PERSONS RENDERING THE SERVICES TO THE PERSONS UTILIZING THE SAME AND SOME SORT OF DURABILITY OR PERMANENCY OF THE RESULT OF RENDER ING OF THE SERVICE IS FULFILLED. AN EFFORT WAS MADE TO FIND THE COMMON MEANING OF TH E WORD 'MADE AVAILABLE' THROUGH THE GOOGLE SEARCH ON THE I NTERNET, THE RESULTS OF WHICH ARE ENCLOSED AS ANNEXURE V\' WHICH CLEARLY SHOWS THAT IT MEANS MERELY OFFERING OR MADE ACCESSIBLE TO THE OTHER PARTY AND IT NEVER MEANT THAT HE OTHER PARTY SHOULD BE TR AINED OR MADE EXPERT IN SUCH TECHNICAL KNOWLEDGE. IT WILL BE ABSU RD ON PART OF A PERSON TO MAKE OTHER PERSON EXPERT OF ITS CORE COMP ETENCY, WHICH WILL RESULT IN SITUATION THAT THE RECIPIENTS OF SER VICES WILL NOT LOOK AGAIN TO HIM WHEN THESE SERVICES ARE NEEDED IN FUTU RE. TRAINING / TEACHING / EDUCATIONAL SERVICES HAVE SEPARATELY BEE N DEALT ELSE WHERE IN THE TRITE. IN VIEW OF ABOVE, THE MEANING OF 'MAK E AVAILABLE' HAS BEEN READ IN THE PRESENT CONTEXT. FURTHER ATTENTION IS INVITED THE DECISION OF HOUNRA BLE ITAT, BANGALORE IN THE CASE OF M/S BOVIS LEND LEASE INDIA PVT. LTD. VS. ITO, 36 SOT 166 BANGALORE WHERE WORD 'MADE AVAILABL E' IN PARAGRAPH 101 AND 102, WHICH ARE REPRODUCED AS UNDE R : ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 21 - '101. HENCE, IN THE INSTANT CASE, WE HAVE TO SEE AS TO WHETHER THE REQUIREMENT OF MAKE AVAILABLE' IS SATISFIED IN THIS CASE. THE APPELLANT IS RECEIVING VARIOUS SERVICES. IN RESPECT OF ASSISTANCE IN THE OPERATION OF BUSINESS, IT HAS BEEN MADE CLEA R THAT LLAH WILL PROVIDE EDUCATION AND TRAINING INCLUDING THE T RAINING MATERIAL FOR THE STAFF OF THE APPELLANT COMPANY ON OR OFFSHORE. IN RESPECT OF MAJORITY F SERVICES, IT HAS BEEN MENT IONED THAT I WILL PROVIDE ASSISTANCE. THUS, LLAH IS PROVIDING AS SISTANCE FOR VARIOUS SERVICES AND AS PER HE AGREEMENT, IT HAS TO PROVIDE EDUCATION AND TRAINING TO THE EMPLOYEES OF THE APPE LLANT COMPANY. THE WORD 'MAKE AVAILABLE' ONLY REFERS TO THE WILLINGNESS OF THE PROVIDER OF THE SERVICES AND DOE S NOT REFER THE ACCEPTANCE OF THE RECEIVER OF THE SERVICES. 102. THE DICTIONARY MEANING OF ASSISTANCE IS TO HEL P OR SUPPORT. IT DOES NOT MEAN TO PROVIDE. WHEN ONE IS GOING TO H ELP OR SUPPORT THEN HE IS MAKING THE OTHER PERSON TO D THE SAME IN FUTURE. THE WORD ASSISTANCE IS DEFINED IN LAX LEXIC ON BY VENKATARAMAIYA AS: 'THE WORD 'ASSISTANCE' AS USED IN THE SECTION IMPLI ES THAT THE PARTY WHO ASSISTS IS DOING SOMETHING WHICH IN ORDIN ARY CIRCUMSTANCES THE PARTY ASSISTED COULD DO FOR HIMSE LF' - RAMAYA NAOKA I.L.R. 26 MAD 26 MAD 419 AT P. 421.' IN VIEW OF ABOVE, IT IS SUBMITTED THAT SERVICES PRO VIDED BY THE ASSESSEE SHOULD BE CONSIDERED AS TECHNICAL SERVICES WHICH HAVE BEEN MADE AVAILABLE TO THE RECIPIENT OF SERVICE AND WITH OUT PREJUDICE TO ABOVE, THEY ARE COVERED IN ROYALTY AS WELL AS INFOR MATION CONCERNING INDUSTRIAL, COMMERCIAL OR SCIENTIFIC EXPERIENCE AS PER PARAGRAPH 4 OF ARTICLE 12 OF INDIA NETHERLAND TREATY. (THERE IS NO DISPUTE BETWEEN THE ASSESSEE AND THE DEPARTMENT THAT THESE SERVICES ARE TAXABLE AS INDIAN INCOME-TAX ACT.) 5) WE HAVE HEARD BOTH THE SIDES AT LENGTH. AT THE OUT SET OUR FOREMOST OBSERVATION IS THAT THE ISSUES CROPPED UP IN THIS APPEAL HAVE NOT BEEN EXHAUSTIVELY DEALT WITH BY THE LOWER AUTHORITIES. FOR THIS COMMENT WE HEREBY GIVE OUR REASONS AS FOLLOWS : A) THE IMPUGNED ORDER OF THE A.O. IS A CRYPTIC A ND NON- DESCRIPTIVE JUDGEMENT DEVOID OF REASONING. RATHER THE ASSESSEE ITSELF HAD RAISED THIS ISSUE BEFORE LD. CIT(A). CER TAIN AGE-OLD CASE LAWS HAVE BEEN CITED AND THOSE ARE STILL ALIVE DUE TO THEIR UTMOST ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 22 - SIGNIFICANCE. THE HONOURABLE COURTS HAVE CONSISTENT LY REMINDED THAT THE JUDICIAL AS ALSO QUASI-JUDICIAL AUTHORITIE S ARE REQUIRED TO ASSIGN REASONS IN SUPPORT OF THEIR CONCLUSION. ALTH OUGH THE ASSESSEE HAD RAISED THE OBJECTION THAT THE SAID ASS ESSMENT ORDER IS AGAINST THE NATURAL JUSTICE BUT CIT(A) HAS NOT GIVE N HIS VERDICT. B) ON MERITS, THE TRITE LAW IS THAT UNDER THE PRO VISIONS OF I.T.ACT A NON-RESIDENT IS SUBJECT TO TAX IN INDIA TO THE EX TENT ANY INCOME IS DEEMED TO ACCRUE OR ARISE IN INDIA. SEC. 9 PRESCRIB ES THAT THE INCOME BY WAY OF FEES FOR TECHNICAL SERVICES IS CON SIDERED AS INCOME DEEMED TO ACCRUE OR ARISE IN INDIA. CERTAIN ARTICLES OF THE TAX AVOIDANCE TREATIES FOR E.G. ARTICLE 12(4), HAVE ENDORSED THIS LEGAL POSITION. B.1) NEXT IS AN EXCEPTION AS CARVED OUT IN SEC. 90 OF THE ACT EMPOWERING THE GOVT. TO ENTER INTO AN AGREEMENT WIT H AN ANOTHER STATE FOR GRANTING CERTAIN RELIEF. HENCE THERE IS N O MORE A DISPUTE THAT A TREATY OVERRIDES THE PROVISIONS OF THE ACT. BUT IN A SITUATION AS PERSISTED IN THIS APPEAL, THE FIRST STEP OUGHT T O BE TAKEN BY THE REVENUE AUTHORITIES TO GIVE A CLEAR-CUT FINDING AS PRESCRIBED UNDER SEC. 9(1) (VII) OF THE ACT. IT IS VERY SIMPLE . IT IS EXPECTED FROM THE A.O. TO GO-THROUGH EACH AND EVERY CLAUSE O F THE AGREEMENT IN QUESTION. IF RENDERING OF TECHNICAL S ERVICE IS THE ESSENCE OF THE TERMS OF THE AGREEMENT THEN THE PROV ISIONS OF SEC. 9 ARE REQUIRED TO BE APPLIED. THE SERVICE NEEDS TO BE TECHNICAL AND/OR CONSULTANCY IN NATURE. IN THE PRESENT CAS E IT WAS ACCEPTED BY THE ASSESSEE THAT THE AGREEMENT COVERED THE FOLL OWING TYPES OF SERVICES :- (I) COMMERCIAL SUPPORT (II) LOGISTICS (III) PUBLIC AFFAIRS (IV) HUMAN RESOURCE MATTERS (V) FINANCE, BANKING AND TREASURY (VI) ADMINISTRATIVE (VII) LEGAL AND ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 23 - (VIII) HEALTHCARE SERVICES. SO A COMMERCIAL SUPPORT OR A LOGISTIC SUPP ORT OR AN ASSISTANCE TO SET-UP A BUSINESS OR MATTERS RELATE D TO HUMAN RESOURCES WHETHER FALL UNDER THE DEFINITION AS PRE SCRIBED U/S 9 OF THE ACT OUGHT TO HAVE BEEN EXHAUSTIVELY EXAMINED BY THE A.O. BEFORE US THE LD. A.R. MR. DHINAL SHAH HAS TRIED TO NARRATE SOME OF THE CLAUSES OF THOSE AGREEMENTS, BUT ONLY THEORE TICAL NARRATION IS NOT GOING TO SERVE THE PURPOSE BUT THE TREATMENT IN ACCOUNTS IS EQUALLY ESSENTIAL BECAUSE THOSE PAYMENTS ARE REQUIR ED TO BE EXAMINED IN THE LIGHT OF THE BILLS RAISED BY THE AS SESSEE AGAINST WHICH THE PAYMENTS HAVE MADE. THE A.O. IS EXPECTED TO EXAMINE THE NARRATION OF THE SERVICE RENDERED FOR WHICH THE BILLS WERE RAISED. THEN IF POSSIBLE THE A.O. CAN ALSO EXAMINE THE HEAD UNDER WHICH THE PAYEES HAVE CLAIMED THE EXPENDITURE. IF W E HEREBY ACCEPT THE CLAIM OF THE ASSESSEE THAT THE IMPUGNED RECEIPTS WERE NOT IN THE NATURE OF FTS THEN AN ADVERSE CONSEQUENC E MAY OCCUR IN THE CASES OF THOSE ENTITIES WHO MIGHT HAVE CLAIM ED THE EXPENDITURE UNDER THE SAID HEAD. NATURALLY UNDER CO MMON SENSE A PAYMENT IN A BUSINESS IS MADE IF IT IS BENEFICIAL F OR THE BUSINESS; THEREFORE, THE NATURE OF PAYMENT IS TO BE SEEN FROM BOTH THE ANGLES I.E. FROM PAYERS AS ALSO PAYEES VERSION. THIS EXERC ISE HAS NOT BEEN METHODICALLY CARRIED OUT BY THE A.O. HENCE IN OUR C ONSCIENTIOUS OPINION RESTORATION OF THIS ASPECT BACK TO THE STAG E OF THE A.O. IS THE CORRECT REMEDY. B.2) THE NEXT STEP TO FIND OUT WHETHER THE SERVICES IN QUESTION ARE MAKE-AVAILABLE COMES INTO OPERATION ONLY WHEN THE REVENUE TAKES A VIEW AS PER THE STEP DISCUSSED ABOVE THAT THE NATURE OF SERVICES ARE IN FACT FEES FOR TECHNICAL SERVICES . THE PROVISIONS OF SEC. 9(1)(VII) STOPS WITH THE FINDING THAT THERE E XISTED RENDERING OF TECHNICAL SERVICE. BUT, AS DISCUSSED SUPRA, THE DTAA PRESCRIBES AN EXCEPTION. THE RELEVANT CLAUSE IS CLAUSE 4 OF AR TICLE 12 OF THE MODEL TAX TREATY READS AS FOLLOWS: ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 24 - FOR THE PURPOSES OF PARA 2 OF THIS ARTICLE, AND SUB JECT TO PARA 5 OF THIS ARTICLE, THE TERM FEES FOR TECHNICAL SERVICES MEANS PAYMENTS OF ANY KIND TO ANY PERSON IN CONSIDERATION FOR THE REN DERING OF ANY TECHNICAL OR CONSULTANCY SERVICES (INCLUDING THE PR OVISION OF SERVICES OF TECHNICAL OR OTHER PERSONNEL) WHICH: (A) ARE ANCILLARY AND SUBSIDIARY TO THE APPLICATION OR ENJOYMENT OF THE RIGHT, PROPERTY OR INFORMATION FOR WHICH A PAYMENT DESCRIBED IN PARA 3(A) OF THIS ARTICLE IS RECEIVED; OR (B) ARE ANCILLARY AND SUBSIDIARY TO THE ENJOYMENT OF TH E PROPERTY FOR WHICH A PAYMENT DESCRIBED IN PARA 3(B) OF THIS ARTICLE IS RECEIVED; OR (C) MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKI LL, KNOW-HOW OR PROCESSES, OR CONSIST OF THE DEVELOPMEN T AND TRANSFER OF A TECHNICAL PLAN OR TECHNICAL DESIGN. ON CONJOIN READING OF SEC.9(1)(VII) AND ARTICLE 12 .4 OF DTAA , CLAUSE (C), SUPRA, IT EMERGES THAT FEES FOR TECHNICAL SERVICE IS A CONSIDERATION RECEIVED IN THE HANDS O F THE RECIPIENT, PROVIDED, THOSE TECHNICAL KNOWLEDGE OR KNOW-HOW ETC . ARE MAKE AVAILABLE TO THE PERSON WHO MADE THE PAYMENT IN LI EU OF THOSE SERVICES. THIS TERM IS A SUBJECT MATTER OF CONTROVE RSY. BROADLY SPEAKING IN OUR HUMBLE OPINION MAKE AVAILABLE MEA NS TO ALLOW SOMEBODY TO MAKE USE OF THE KNOW- HOW OR KNOWLEDGE. THIS HAS BEEN FURTHER EXPANDED THAT MAKE AVAILABLE MEANS T HAT THE PERSON RECEIVING THE SERVICES HAS BEEN ENABLED TO UTILISE THAT KNOWLEDGE OR THE RECEIVER HAS BECOME WISER TO UTILISE THAT KN OWLEDGE INDEPENDENTLY. IN VIEW OF SOME OF THE JUDGEMENTS, A S CITED BY MR. DHINAL SHAH, MERE RENDERING OF SERVICES IS NOT ENOU GH UNLESS THE PERSON UTILISING THE KNOWLEDGE IS ABLE TO MAKE USE OF THAT TECHNICAL KNOWLEDGE BY HIMSELF FOR HIS OWN BENEFIT INDEPENDENTLY I.E WITHOUT THE GUIDANCE OF THE SAID SERVICE PROVI DER. WE HAVE EXAMINED THIS ASPECT SERIOUSLY IN THE BACKG ROUND OF THE FACTS OF THIS CASE. THE UNDISPUTED FACT IS T HAT THE TERM OF THE AGREEMENT IS FOR PERIOD OF 10 YEARS. IN THIS LONG P ERIOD THAT KNOWLEDGE SHALL BECOME PART OF THE SYSTEM AND THE P ERSONS USING THAT KNOWLEDGE MAY THEMSELVES BECOME EXPERT. SO THE TECHNICAL ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 25 - PERSONS USING THAT KNOWLEDGE ARE REQUIRED TO BE INT ERROGATED. WHETHER 10 YEARS PERIOD IS NOT A SUFFICIENT PERIOD TO EQUIP ONE- SELF WITH THE KNOWLEDGE TAUGHT OR IMPARTED OR COMMU NICATED. CERTAIN EXAMPLES OF PROFESSIONS ARE GIVEN IN SOME O F THE JUDGEMENTS. WE ARE AWARE OF THOSE FINDINGS, BUT THO SE REVOLVE AROUND THE FACTS OF THOSE CASES. HOWEVER IF WE APPL Y THAT LOGIC THEN A PERSON WITH THE BASIC KNOWLEDGE CAN BECOME E XPERT IN A LONG TIME OF 10 YEARS. EVEN IN MEDICAL FIELD IN 10 YEARS PERIOD A STUDENT BECOME SUPER SPECIALIST. SO THE EXACT NATUR E OF THE KNOWLEDGE CAN ONLY BE ASCERTAINED BY EXAMINING THE DOCUMENTS OR DESIGNS OR THE INFORMATION HANDED OVER BY THE AP PELLANT (SIBV) TO THOSE HAZIRA ENTITIES. WHAT WERE THE CONTENTS OF THOSE DOCUMENTS; ACCORDING TO US, YET TO BE EXAMINED. THE TERMS SUCH AS COMMERCIAL SUPPORT, LOGISTIC, PUBLIC-AFFAIRS , HUMAN RESOURCES ETC. AS LISTED BY THE APPELLANT ARE VERY GENERAL IN NATURE. BY THE NOMENCLATURE OF THE SERVICES, AS LISTED ABOV E, IT IS NOT CLEAR THAT WHAT TECHNICALITY WAS INVOLVED IN PROVIDING TH AT KNOWLEDGE?. FURTHER, WHY A PERSON CAN NOT LEARN THOSE TECHNICAL ASPECTS IN A 10 YEARS TIME? WHETHER THAT TECHNICAL KNOWLEDGE IS SO INTRICATE THAT EVEN IN SUCH LONG PERIOD IT COULD NOT BE UNDERSTOOD BY THE RECIPIENT. ALL THESE QUESTIONS CAN ONLY BE ANSWERED BY A THOROUGH INVESTIGATION AT THE LEVEL OF THE ASSESSMENT. THE A .O. SHALL THEREFORE EXAMINE THE BILLS AND VOUCHERS PREPARED B Y THE ASSESSEE IN SUPPORT OF THE CLAIM OF EXPENDITURE TO ASCERTAIN THE NATURE OF SERVICES RENDERED AND THEN FIND OUT THAT WHETHER C OULD HAVE BEEN MADE AVAILABLE FOR THE BUSINESS PURPOSE OF THOSE PA RTIES. THE A.O. HAS ALSO TO FIND-OUT THAT IF THE SERVICES RENDERED BY THIS ASSESSEE WERE NOT MADE AVAILABLE TO THOSE HAZIRA PARTIES FOR THEIR BUSINESS PURPOSE THEN UNDER WHAT GROUND THEY HAVE CLAIMED BU SINESS EXPENDITURE, IF ANY? 5.1 IN THE LIGHT OF THE ABOVE DISCUSSION AND THE REASON S ASSIGNED HEREINABOVE, WE HEREBY RESTORE GROUND NO.1 BACK TO THE STAGE OF THE AO. THIS GROUND IS HEREBY ALLOWED ONLY FOR STATISTICAL PURPOSE PROTANTO. ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 26 - 6. REGARDING GROUND NO.2, WE HAVE NOTED THAT THIS G ROUND WAS NOT DECIDED BY LEARNED CIT(A) AND THAT QUESTION OF CLAIM OF REIMBURSEMENT OF EXPENDITURE WAS NOT MADE BEFORE TH E AO. IN THE WRITTEN SUBMISSION, THE LEARNED A.R., MR. DHINAL SH AH HAS SUBMITTED THAT THE APPELLANT HAS RECEIVED RS.95,10, 671/- AS REIMBURSEMENT OF EXPENDITURE FROM SHGPL IN THE COUR SE OF RENDERING SERVICES. THE ASSESSEE HAS, THEREFORE, RE QUIRED TO ESTABLISH THAT THOSE EXPENDITURES WERE FIRST INCURR ED OUT OF POCKET EXPENSES THEN ONLY THE QUESTION OF REIMBURSEMENT CA N BE DECIDED. THE ASSESSEE IS, THEREFORE, REQUIRED TO FURNISH THE DETAILS OF THE BILLS THROUGH WHICH THE REIMBURSEMENT WAS CLAIMED S INCE ALL THOSE FACTS WERE NOT EARLIER EXAMINED BY THE REVENUE AUTH ORITIES, THEREFORE, THE NATURAL JUSTICE DEMANDS TO RESTORE T HIS ISSUE BACK TO THE STAGE OF THE AO TO BE DECIDED DE NOVO AS PER LA W. THIS GROUND OF THE REVENUE IS, THEREFORE, ALLOWED FOR STATISTIC AL PURPOSE. 7. APROPOS TO GROUND NO.3, WE HAVE NOTED THAT THE L EARNED AR HAS NOT PRESSED THIS GROUND AND INFORMED THAT THE S AME HAS BECOME INFRUCTUOUS. OTHERWISE ALSO, THE QUESTION OF TOTAL RECEIPTS CAN BE ANSWERED BY EXAMINING THE ACCOUNTS OF THOSE HAZIRA PARTIES. WE HAVE NOTED THAT THE INFORMATION WAS GAT HERED BY AO UNDER SECTION 133(6) FROM ALL THOSE PARTIES AND THE REAFTER ARRIVED AT THE SAID FIGURE. IF THERE WAS A DIFFERENCE DUE T O FOREIGN EXCHANGE FLUCTUATION, THE SAME IS A MATTER OF SIMPL E RECTIFICATION. SINCE, NO LEGAL ISSUE HAS BEEN RAISED THROUGH THIS GROUND, THEREFORE, WE FIND NO FORCE IN THIS GROUND OF THE A SSESSEE. HENCE, GROUND NO.3 IS HEREBY DISMISSED. 8. IN THE RESULT, ITA NO.1150/AHD/2007 IS HEREBY PA RTLY ALLOWED FOR STATISTICAL PURPOSE. B. ITA NO. 3950/AHD/2008 (FOR A.Y. 2005-06) ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 27 - 9. THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING FROM THE ORDER OF LEARNED CIT(A)-XXI DATED 27.8.2008 AND THE GROUN DS RAISED ARE REPRODUCED BELOW: THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) XXI, AHMEDABAD (HEREINAFTER REFERRED TO AS LEARNED CIT(A ) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT AMOUNTS RECEIVED B Y THE APPELLANT FOR RENDERING SUPPORT SERVICES UNDER THE SUPPORT SERVIC E AGREEMENT (SSA) QUALIFY AS FEES FOR TECHNICAL SERVICES UN DER ARTICLE 12 OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA A ND NETHERLANDS (INDIA-NETHERLANDS TAX TREATY). 2. THE LEARNED CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE CHARGING OF INTEREST CHARGEABLE UNDER SECTION 234A, 234B AND 234D OF THE INCOME TAX ACT, 1961. 3. THE LEARNED CIT(A) HAS ALSO ERRED ON FACTS AND I N LAW IN UPHOLDING THE ADDING BACK OF INTEREST UNDER SECTION 244 RECEI VED ON PREVIOUSLY GRANTED REFUNDS. 9.1 GROUND NO.1 IS IDENTICAL WITH THE VIEW TAKEN HE REINABOVE BY DECIDING ASSESSEES APPEAL FOR A.Y. 2003-04, HEN CE THIS GROUND IS RESTORED BACK TO THE STAGE OF THE AO TO BE DECID ED ON THE SAME LINES AS DIRECTED HEREINABOVE. RESULTANTLY, THIS GR OUND IS ALLOWED FOR STATISTICAL PURPOSE. 10. GROUND NO.2 AND 3 ARE CONSEQUENTIAL IN NATURE A ND PRESENTLY DO NOT SURVIVE BECAUSE THE FINAL QUANTUM OF ASSESSMENT IS YET TO BE ASCERTAINED. THE ISSUE OF CHARGING OF INTEREST UNDER SECTION 234B AND C CAN BE RAISED BEFORE THE AO WHIL E GIVING EFFECT TO THIS ORDER. RESULTANTLY, GROUND NO.2 AND 3 MAY ALSO BE TREATED AS ALLOWED FOR STATISTICAL PURPOSE ONLY. 11. IN THE RESULT, ITA NO.3950/AHD/2008 IS ALLOWED FOR STATISTICAL PURPOSE. ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 28 - C- ITA NO.52/AHD/2009 (FOR A.Y. 2005-06) 12. THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM THE ORDER OF LEARNED CIT(A)-XXI, AHMEDABAD, DATED 29.09 .2008. 13. THE ONLY GRIEVANCE OF THE REVENUE IS THAT LEARN ED CIT(A) HAS ERRED IN DELETING THE PENALTY OF RS.1,08,00,000 /- LEVIED UNDER SECTION 271(1)(C) OF THE IT ACT. THE AO HAS LEVIED THE PENALTY UNDER SECTION 271(1)(C) VIDE ORDER DATED 28.03.2008 ON THE INCOME DETERMINED UNDER SECTION 143(3) OF RS.11,68, 49,305/-. HOWEVER, AS PER THE DISCUSSION MADE HEREINABOVE, TH E IMPUGNED AMOUNT IS YET TO BE FINALIZED BECAUSE WE HAVE RESTO RED THE MATTER BACK TO THE STAGE OF THE AO. AT PRESENT, WE HEREBY HOLD THAT ON ACCOUNT OF FACT THAT THE ISSUE HAS BEEN RESTORED BA CK TO THE FILE OF THE AO, THEREFORE, THE PENALTY DOES NOT SURVIVE. OT HERWISE ALSO, THE LEARNED CIT(A) HAS GIVEN CERTAIN DIRECTIONS AND PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. RESULTANTLY, THE AO IS, THEREFORE, REQUIRED TO COMPLY WITH THOSE DIRECTIONS AS WELL AN D THEREUPON DECIDE A FRESH WHETHER A PENALTY AT ALL IS LEVIABLE ON THE ASSESSEE OR NOT WHILE GIVING EFFECT OF THE ORDER OF THE TRIB UNAL. THE GROUND RAISED BY THE REVENUE IS, THEREFORE, DISMISSED. 14. IN THE RESULT, THE REVENUES APPEAL IS DISMISSE D. SD/- SD/- (ANIL CHATURVEDI ) (MUKUL K R. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMB ER AHMEDABAD; DATED 07/08/2013 PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY ITA NO.1150/AHD/2007 SHELL INTERNATIONAL B.V. NETHERLAND VS. ITO A.Y. 2003-04 - 29 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD