DDIT, New Delhi V. Lufthansa German Airlines, Gurgaon

ITA 1392/DEL/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7490 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 05-01-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 17-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: REENA S PURI
• Assessee Lawyers: SALIL AGGRAWAL AND
• Keywords: Double taxation relief
• Section: 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER I.T.A NO. 1394/DEL/11 ASSTT. YEAR 2006-07 DEPUTY DIRECTOR OF INCOME TAX CIRCLE-3(1), INTERNATIONAL TAXATION, ROOM NO. 202, DRUM SHAPED BUILDING NEW DELHI. VS. KLM ROYAL DUTCH AIRLINES, PRAKASH DEEP BUILDING, 7, TOLSTOY MARG, NEW DELHI AABCK3950H (APPELLANT) (RESPONDENT) APPELLANT BY: SMT. REENA S PURI, CIT(DR) RESPONDENT BY: SHRI SALIL AGGRAWAL, ADVOCATE AND I.T.A NO. 1392/DEL/11 ASSTT. YEAR 2006-07 DEPUTY DIRECTOR OF INCOME TAX CIRCLE-3(2), INTERNATIONAL TAXATION, ROOM NO. 411, DRUM SHAPED BUILDING, NEW DELHI. VS. LUFTHANSA GERMAN AIRLINES, 12 TH FLOOR, DLF BUILDING, NO. 10, TOWER-B, DLF CITY, PHASE-II, GURGAON AAACL5792P (APPELLANT) (RESPONDENT) ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 2 APPELLANT BY: SMT. REENA S PURI, CIT(DR) RESPONDENT BY: SHRI RAJIV PAL PURI, FCA ORDER PER RAJPAL YADAV, JM: THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTAN CE OF REVENUE AGAINST THE ORDERS OF LD. CIT(A) DATED 17.1 .2011 & 14.12.2010 PASSED IN ASSTT. YEARS 2006-07 ON THE RE SPECTIVE APPEALS OF THE RESPONDENTS. THE GROUNDS OF APPEAL TAKEN BY THE REVENUE IN BOTH THE APPEALS READ AS UNDER :- ITA NO. 1394/DEL/2011 M/S. K L M ROYAL DUTCH AIRLINES 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN HOLDING THAT ASSESSEES INCOME FROM GROUND HANDLING AND TECHNICAL HANDLING SERVICES IS NOT TAXABLE IN INDIA AS THE SAME IS HELD TO BE COVERED BY ARTIC LE 8 OF DTAA INDIA AND NETHERLANDS. 2. THE APPELLANT CRAVES TO ADD, AMEND, MODIFY OR AL TER ANY GROUNDS OF APPEAL AT THE TIME OR BEFORE THE HEARING OF THE APPEAL. ITA NO. 1392/DEL/2011 M/S. LUFTHANSA GERMAN AIRLINES 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE INCOME OF THE ASSESSEE FROM GROUND HANDLING AND TECHNICAL HANDLING FOR OTH ER AIRLINES IN INDIA, WAS NOT TAXABLE IN INDIA. 2. THE APPELLANT CRAVES TO ADD, AMEND, MODIFY OR ALTER ANY GROUNDS OF APPEAL AT THE TIME OR BEFORE THE HEARING OF THE APPEAL. ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 3 2. SHRI SALIL AGGARWAL, LD. COUNSEL FOR THE ASSESSE E APPEARING ON BEHALF OF THE RESPONDENT. M/S. KLM ROY AL DUTCH AIRLINES SUBMITTED THAT THE ISSUE WHETHER GROUND HA NDLING AND TECHNICAL SERVICES EXTENDED BY THE ASSESSEE IS TOB E CONSIDERED AS A SEPARATE ACTIVITY THEN OPERATIONS OF AIRCRAFT IN INTERNATIONAL TRAFFIC HAS BEEN CONSIDERED BY THE TRIBUNAL IN ASST T. YEARS 2004- 05, 2005-06, 2007-08 IN ITA NO. 403, 404/D/2010 AND 4811/D/2010. THE TRIBUNAL HAS OBSERVED THAT SUCH SE RVICES ARE TO BE CONSIDERED PART OF BUSINESS OF ASSESSEE FROM OPERATION OF AIRCRAFT IN INTERNATIONAL TRAFFIC. HE PLACED ON REC ORD COPIES OF THE TRIBUNALS ORDER IN THESE ITA NUMBERS. HE SUBMI TTED THAT IN THIS YEAR ASSESSEE HAS EXTENDED TECHNICAL SERVICE O NLY, THUS THIS ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. SIMILARLY, SHRI RAJIV PAL PURI, CHARTERE D ACCOUNTANT APPEARING ON BEHALF OF THE LUFTHANSA GERMAN AIRLINE S HAS RELIED UPON THE ORDER OF ITAT NO. 4939/D/2009 PASSED IN A SSTT. YEAR 1996-97 AS WELL AS ORDER OF THE TRIBUNAL IN ASSTT. YEARS 2002- 03, 2003-04 PASSED IN ITA NOS. 1878, 1879/D/2006. H E POINTED OUT THAT IN ASSTT. YEAR 1996-97 TRIBUNAL HAS EXAMIN ED THIS ISSUE ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 4 IN DETAIL IN ITS OWN CASE. THE APPEALS AGAINST THE TRIBUNALS ORDER ARE PENDING BEFORE THE HONBLE DELHI HIGH COU RT. LD. DR ON THE OTHER HAND HAS SUBMITTED THAT IN EARLIER YEA RS IN THE APPEALS OF BOTH THE ASSESSEES, TRIBUNAL HAD FAILED TO CONSIDER CERTAIN ASPECTS. SHE SUBMITTED THAT BOTH THE ASSESS EES ARE IN THE AIRLINE BUSINESS. THE ARTICLE 8 OF THE DTAA ENT ERED WITH GERMANY AND NETHERLAND BY THE INDIA CONTEMPLATES TH E ASSESSMENT OF INCOME FROM AIRCRAFT OPERATION. ARTIC LE 8(1) PROPOUND THAT PROFIT FROM THE OPERATION OF AIRCRAFT IN INTERNATIONAL TRAFFIC SHALL BE TAXABLE ONLY IN THE CONTRACTING STATE IN WHICH THE PLACE OF EFFECTIVE MANAGEMENT OF THE ENTERPRISE IS SITUATED. SHE EMPHASIZED THAT THIS AR TICLE DEALS WITH THE EXPRESSION OPERATION OF AIRCRAFT IN INTER NATIONAL TRAFFIC. ARTICLE 3(I) OF THE TREATY WITH GERMANY A ND ARTICLE 3(H) OF THE TREATY WITH NETHERLANDS PROVIDES THE DEFINIT ION OF EXPRESSION INTERNATIONAL TRAFFIC. ACCORDINGLY IN TERNATIONAL TRAFFIC MEANS, TRANSPORT BY AIRCRAFT OPERATED BY A N ENTERPRISES WHICH HAS ITS PLACE OF EFFECTIVE MANAGEMENT IN A CO NTRACTING STATE EXCEPT WHEN THE AIRCRAFT IS OPERATED SOLELY B ETWEEN PLACES IN THE OTHER CONTRACTING STATE. ACCORDING TO THE LD. DR, ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 5 THE EXPRESSION OPERATION OF AIRCRAFT HAS NOT BEEN DEFINITION IN THE DTAA. SHE REFERRED TO ARTICLE 3.2 WHICH SUGGEST THAT THE APPLICABILITY OF THE DTAA AND POINT OUT THAT ANY TE RM NOT DEFINED THEREIN SHALL, UNLESS THE CONTEXT OTHERWISE REQUIRES, HAVE THE MEANING WHICH IT HAS UNDER THE LAW OF THAT STATE CONCERNING THE TAXES TO WHICH THIS AGREEMENT APPLIE S. ON THE STRENGTH OF ARTICLE 3.2, SHE POINTED OUT THAT WHEN A TERM IS NOT DEFINED IN THE TREATY THEN REFERENCE IS TO BE MADE TO THE DOMESTIC LAW AND THE MEANING ASSIGNED IN THE DOMEST IC LAW IS TO BE APPLIED. IN THE DOMESTIC LAW THE TERM OPERATI ON OF AIRCRAFT FINDS SPECIFIC REFERENCE IN SECTION 44BBA THAT DEAL S WITH SPECIAL PROVISION FOR COMPUTING PROFITS AND GAINS OF THE BU SINESS OF OPERATION OF AIR CRAFT IN THE CASES OF NON RESIDENT . THIS SECTION READ AS UNDER :- SPECIAL PROVISION FOR COMPUTING PROFITS AND GAINS OF THE BUSINESS OF SPECIAL PROVISION FOR COMPUTING PROFITS AND GAINS OF THE BUSINESS OF SPECIAL PROVISION FOR COMPUTING PROFITS AND GAINS OF THE BUSINESS OF SPECIAL PROVISION FOR COMPUTING PROFITS AND GAINS OF THE BUSINESS OF OPERATION OF AIRCRAFT IN THE CASE OF NON OPERATION OF AIRCRAFT IN THE CASE OF NON OPERATION OF AIRCRAFT IN THE CASE OF NON OPERATION OF AIRCRAFT IN THE CASE OF NON- -- -RESIDENTS. RESIDENTS. RESIDENTS. RESIDENTS. 44BBA. (1) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTIONS 28 TO 43A, IN THE CASE OF AN ASSESSEE, BEI NG A NON-RESIDENT, ENGAGED IN THE BUSINESS OF OPERATION OF AIRCRAFT, A SUM EQUAL TO FIVE PER CENT OF THE AGGREGATE OF THE AMOUNTS SPECIFIED IN SUB-SECTION (2) SHALL BE DEEMED TO BE THE PROFITS AND GAINS OF SUCH BUSINESS CHARGEABLE TO TAX UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. (2) THE AMOUNTS REFERRED TO IN SUB-SEC TION (1) SHALL BE THE FOLLOWING, NAMELY :- (A) THE AMOUNT PAID OR PAYABLE (WHETHER IN OR OUT O F INDIA) TO THE ASSESSEE OR TO ANY PERSON ON HIS BEHALF ON ACCOUNT OF THE ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 6 CARRIAGE OF PASSENGERS, LIVESTOCK, MAIL OR GOODS FROM ANY PLACE IN INDIA ; AND (B) THE AMOUNT RECEIVED OR DEEMED TO BE RECEIVED I N INDIA BY OR ON BEHALF OF THE ASSESSEE ON ACCOUNT OF THE CARRIAG E OF PASSENGERS, LIVESTOCK, MAIL OR GOODS FROM ANY PLACE OUTSIDE INDIA. (EMPHASIS SUPPLIED). 3. ON THE STRENGTH OF SECTION 44BBA, SHE POINTED OU T THAT EXPRESSION OPERATION OF AIRCRAFT IS TO BE CONSTRU ED THAT IT RELATES TO CARRIAGE OF PASSENGERS, LIVESTOCK, MAIL OR GOODS. IT DOES NOT TAKE INTO ITS FOLDS, THE RECEIPTS RECEIVED BY PROVIDING GROUND HANDLING AND TECHNICAL SERVICES RENDERED TO OTHER AIRLINES AT INDIAN AIRPORT AND THUS SUCH RECEIPTS A RE TAXABLE IN INDIA. THE ASSESSEE WILL NOT BE ENTITLED TO TAKE TH E BENEFIT OF ARTICLE 8 OF THE DTAA ON THE GROUND THAT HANDING A ND TECHNICAL SERVICES ARE PART OF OPERATION OF AIRCRAFT IN INTER NATIONAL TRAFFIC. SHE PLACED ON RECORD A NOTE TO THE ABOVE EFFECT. 4. WE HAVE DULY CONSIDERED RIVAL CONTENTION AND GON E THROUGH THE RECORD CAREFULLY. IN THE CASE OF M/S KL M ROYAL DUTCH AIRLINES FOR ASSTT. YEAR 2004-05AND 2005-06, THE ITAT HAS TAKEN NOTE OF ARTICLE 8 OF THE DTAA RELATING TO THR EE COUNTRIES NAMELY GERMANY, NETHERLAND AND UK. ON AN ANALYSIS O F THIS ARTICLE AND CONSTRUED THE MEANING OF EXPRESSION PR OFIT FROM THE OPERATION OF SHIP OR AIRCRAFT IN INTERNATIONAL TRAFFIC. THE ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 7 TRIBUNAL HAS ALSO NOTICED THE ORDER OF ITAT IN THE CASE OF LUFTHANSA AIRLINES REPORTED IN 90 ITD PAGE 310. THE ORDER OF THE TRIBUNAL IN THOSE YEARS IS AS UNDER :- 9. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS A ND GONE THROUGH THE RECORD CAREFULLY. THE SOLE ISSUE FOR OU R ADJUDICATION IS WHETHER GROUND HANDLING SERVICES AND TECHNICAL HAND LING SERVICES RENDERED BY THE ASSESSEE TO OTHER AIRLINES IN INDIA ARE TO BE CONSIDERED PART OF BUSINESS OF ASSESSEE FROM OPERAT ION OF AIRCRAFT IN INTERNATIONAL TRAFFIC OR THEY ARE SEPARATE DISTINCT ACTIVITIES. IN ORDER TO APPRECIATE THIS ISSUE, THE ARTICLE 8 AVAILABLE I N THE THREE TREATIES REFERRED ABOVE HAS A DIRECT BEARING, THEREFORE, IT IS SALUTARY UPON US TO TAKE NOTE OF THIS ARTICLE IN ALL THE THREE TREAT IES IN A TABULAR FORM FOR COMPARATIVE STUDY WHICH READS AS UNDER: INDO GERMANY DTAA INDO-NETHERLAND DTAA INDO-UK.DTAA ARTICLE-B SHIPPING AND AIR TRANSPORT 1. PROFIT FROM THE OPERATION OF SHIPS OR AIRCRAFT IN INTERNATIONAL TRAFFIC SHALL BE TAXABLE ONLY IN THE CONTRACTING STATE IN WHICH THE PLACE OF EFFECTIVE MANAGEMENT OF THE ENTERPRISE IS SITUATED. 2. IF THE PLACE OF EFFECTIVE MANAGEMENT OF A SHIPPING ENTERPRISE IS ABROAD A SHIP, THEN IT SHALL BE DEEMED TO BE ARTICLE 8 AIR TRANSPORT- 1. PROFITS FROM THE OPERATION OF AIRCRAFT IN INTERNATIONAL TRAFFIC SHALL BE TAXABLE ONLY IN THE STATE IN WHICH THE PLACE OF EFFECTIVE MANAGEMENT OF THE ENTERPRISE IS SITUATED. 2. FOR THE PURPOSE OF THIS ARTICLE: (A) PROFITS FROM THE OPERATION IN INTERNATIONAL TRAFFIC OF AIRCRAFT INCLUDE PROFITS DERIVED FROM THE RENTAL ON A ARTICLE 8-AIR TRANSPORT 1.PROFITS DERIVED FROM THE OPERATION OF AIRCRAFT IN INTERNATIONAL TRAFFIC BY AN ENTERPRISE OF ONE OF THE CONTRACTING STATES SHALL NOT BE TAXED IN THE OTHER CONTRACTING STATE. 2. THE PROVISION OF PARAGRAPH 1 OF THIS PARAGRAPH 1 OF THIS PARAGRAPH 1 OF THIS PARAGRAPH 1 OF THIS ARTICLE SHALL LIKEWISE ARTICLE SHALL LIKEWISE ARTICLE SHALL LIKEWISE ARTICLE SHALL LIKEWISE APPLY IN R APPLY IN R APPLY IN R APPLY IN RESPECT OF ESPECT OF ESPECT OF ESPECT OF PARTICIPATION IN POOLS PARTICIPATION IN POOLS PARTICIPATION IN POOLS PARTICIPATION IN POOLS OF ANY KIND BY OF ANY KIND BY OF ANY KIND BY OF ANY KIND BY ENTERPRISES ENGAGED IN ENTERPRISES ENGAGED IN ENTERPRISES ENGAGED IN ENTERPRISES ENGAGED IN AIR TRANSPORT AIR TRANSPORT AIR TRANSPORT AIR TRANSPORT . 3.FOR THE PURPOSES OF THIS ARTICLE THE TERM OPERATION OF AIRCRAFT SHALL INCLUDE ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 8 SITUATED IN THE CONTRACTING STATE IN WHICH THE HOME HARBOUR OF THE SHIP IS SITUATED, OR, IF THERE IS NO SUCH HOME HARBOUR, IN THE CONTRACTING STATE OF WHICH THE OPERATOR OF THE SHIP IS A RESIDENT. 3. FOR THE PURPOSES OF THIS ARTICLE, INTEREST ON FUNDS CONNECTED WITH THE OPERATION OF SHIPS OR AIRCRAFT IN INTERNATIONAL TRAFFIC SHALL BE REGARDED AS PROFITS DERIVED FROM THE OPERATION OF SUCH SHIPS OR AIRCRAFT, AND THE PROVISIONS OF ARTICLE INCOME- TAX OFFICER, SHALL NOT APPLY IN RELATION TO SUCH INTEREST. 4. THE PROVISIONS OF PARAGRAPH 1 PARAGRAPH 1 PARAGRAPH 1 PARAGRAPH 1 SHALL ALSO SHALL ALSO SHALL ALSO SHALL ALSO APPLY APPLY APPLY APPLY TO PROFITS FROM TO PROFITS FROM TO PROFITS FROM TO PROFITS FROM THE PARTICIPATION THE PARTICIPATION THE PARTICIPATION THE PARTICIPATION BAREBOAT BASIS OF AIRCRAFT IF OPERATED IN INTERNATIONAL TRAFFIC IF SUCH RENTAL PROFITS ARE INCIDENTAL TO THE PROFITS DESCRIBED IN PARAGRAPH 1; (B) INTEREST ON FUNDS CONNECTED WITH THE OPERATION OF AIRCRAFT IN INTERNATIONAL TRAFFIC SHALL BE REGARDED AS PROFITS DERIVED FROM THE OPERATION OF SUCH AIRCRAFT AND THE PROVISIONS OF ARTICLE 11 SHALL NOT APPLY IN RELATION TO SUCH INTEREST. 3. THE PROVISIONS OF PARAGRAPH 1 PARAGRAPH 1 PARAGRAPH 1 PARAGRAPH 1 SHALL ALSO APPLY SHALL ALSO APPLY SHALL ALSO APPLY SHALL ALSO APPLY TO PROFITS FROM TO PROFITS FROM TO PROFITS FROM TO PROFITS FROM THE PARTICIPATION THE PARTICIPATION THE PARTICIPATION THE PARTICIPATION IN A POOL, A JOINT IN A POOL, A JOINT IN A POOL, A JOINT IN A POOL, A JOINT BUSINESS OR AN BUSINESS OR AN BUSINESS OR AN BUSINESS OR AN INTERNATIONAL INTERNATIONAL INTERNATIONAL INTERNATIONAL OPERATING OPERATING OPERATING OPERATING AGENCY AGENCY AGENCY AGENCY. TRANSPORTATION BY AIR OF PERSONS LIVESTOCK, GOODS OR MAIL, CARRIED ON BY THE OWNERS OR LESSEES OR CHARACTERS OF AIRCRAFT, INCLUDING THE SALE OF TICKETS FOR SUCH TRANSPORTATION ON BEHALF OF OTHER ENTERPRISES, THE INCIDENTAL LEASE OF AIRCRAFT ON A CHARACTER BASIS AND ANY OTHER ACTIVITY DIRECTLY CONNECTED WITH SUCH TRANSPORTATION. 4. GAINS DERIVED BY AN ENTERPRISE OF A CONTRACTING STATE FROM THE ALIENATION OF AIRCRAFT OWNED AND OPERATED BY THE ENTERPRISE, THE INCOME FROM WHICH IS TAXABLE ONLY IN THAT STATE, SHALL BE TAXED ONLY IN THAT STATE. ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 9 IN A POOL, A JOINT IN A POOL, A JOINT IN A POOL, A JOINT IN A POOL, A JOINT BUSINESS OR AN BUSINESS OR AN BUSINESS OR AN BUSINESS OR AN INTERNATIONAL INTERNATIONAL INTERNATIONAL INTERNATIONAL OPERATING OPERATING OPERATING OPERATING AGENCY AGENCY AGENCY AGENCY. 10. THE EXPRESSION PROFIT FROM THE OPERATION OF SH IP OR AIR-CRAFT IN INTERNATIONAL TRAFFIC HAS NOT BEEN DEFINED IN INDO -NETHERLANDS DTAA. SIMILARLY, IT HAS NOT BEEN DEFINED IN THE IND O-GERMAN DTAA. HOWEVER, IN SUB-ARTICLE-3 OF ARTICLE 8 IN THE TREAT Y BETWEEN INDO & UK, IT HAS BEEN EXPLAINED. THUS, THERE IS A DISTINC TION BETWEEN THESE THREE SETS OF DTAA. THE POSITION IN INDO-GERMAN DTA A AND INDO- NETHERLANDS DTAA ARE SIMILAR ON THE ONE HAND WHEREA S THE POSITION IN THE INDO-UK DTAA, IT IS SLIGHTLY DIFFERENT. THIS QUESTION AROSE BEFORE THE ITAT IN THE CASE OF LUFTHANSA GERMAN AIR LINES ALSO. THE ITAT WHILE EXPLAINING THE MEANING OF PROFIT FROM TH E OPERATION OF SHIPS OR AIR-CRAFT IN INTERNATIONAL TRAFFIC HAS TOO K INTO CONSIDERATION THE BYE-LAWS OF INTERNATIONAL AIRLINES TECHNICAL PO OL (IATP) BECAUSE THIS ORGANIZATION AUTHORIZED ITS MEMBERS TO SHARE A IR-CRAFTS, AIR- CRAFTS POOLING, GROUND HANDLING EQUIPMENT AND MANPO WER ALL OVER THE WORLD. THE ITAT HAS CONSIDERED THE RELEVANT CLA USES OF IATP MANUAL AND THEREAFTER CONCLUDED THAT ANY RECEIPT RE CEIVED BY THE ASSESSEE DUE TO PARTICIPATION IN THE POOL AS PROVID ED IN IATP MANUAL AND ALSO EXPLAINED IN SUB-ARTICLE 4 OF INDO-GERMAN DTAA WILL NOT BE TAXABLE IN INDIA UNDER SUB ARTICLE 1 OF ARTICLE 8. IN THE PRESENT APPEALS, THERE IS NO DISPARITY ON FACTS. LEARNED DR EXCEPT RAISING AN ARGUMENT THAT GROUND HANDLING AND TECHNICAL HANDLIN G SERVICES ARE DIFFERENT ACTIVITIES THEN OPERATION OF ANY AIR-CRAF T IN INTERNATIONAL TRAFFIC FAILED TO BRING ANY RULES, REGULATIONS, BYE -LAWS FOR SUBSTANTIATING HIS CONTENTIONS. THE CO-ORDINATE BEN CH OF THE ITAT HAS EXAMINED THIS ISSUE IN DETAIL AND CONSIDERED TH ESE ASPECTS. UNLESS SOME STRONG CIRCUMSTANCES WHICH HAS NOT BEEN BROUGHT TO THE NOTICE OF THE EARLIER BENCH, ARE AVAILABLE, WE CANNOT TAKE A DIFFERENT STAND EVEN IF IT IS POSSIBLE TO TAKE THE OTHER VIEW. THE REVENUE IS UNABLE TO BRING ANY MATERIAL ON RECORD W HICH CAN PURSUED US TO TAKE A DIFFERENT VIEW THEN THE ONE EA RLIER TAKEN BY THE ITAT IN THE CASE OF LUFTHANSA AIRLINES REPORTED IN 90 ITD PAGE 310. THE ITAT HAS DISTINGUISHED THE FACTS IN THE CASE OF LUFTHANSA THEN BRITISH AIRWAYS. THE INDO-NETHERLANDS TREATY IS SIM ILAR TO THAT OF INDO-GERMAN AND NOT IN PARITY WITH INDO UK TREATY. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THESE APPEALS. THEY ARE DISMISSED. 5. IN THE CASE OF LUFTHANSA AIRLINES, TRIBUNAL HAS CONSIDERED THIS ASPECT MORE ELABORATELY. THERE IS NO DISPARITY ON FACTS. THE ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 10 APPEALS AGAINST THE ORDERS OF THE TRIBUNAL ARE STAT ED TO BE PENDING BEFORE THE HONBLE DELHI HIGH COURT. IN OUR OPINION, IN THE CASE OF LUFTHANSA AIRLINES THOUGH SECTION 44BBA HAS NOT BEEN TAKEN INTO CONSIDERATION, BUT TRIBUNAL HAS EXP LAINED THE MEANING OF OPERATION OF AIRCRAFT IN INTERNATIONAL TRAFFIC AND ARRIVED AT A CONCLUSION THAT GROUND HANDLING SERVIC ES AND TECHNICAL SERVICES RENDERED TO OTHER AIRLINES AT IN DIAN AIRPORT WOULD BE CONSIDERED AS PART OF OPERATION OF AIRCRAF T IN INTERNATIONAL TRAFFIC. SUCH CONCLUSION WAS DRAWN BY CONSTRUING POSITION AVAILABLE IN THE DTAA. THEREFORE, WE DO NO T SEE ANY REASON TO DEVIATE OURSELVES FROM THE ORDERS OF THE TRIBUNAL IN THE CASES OF BOTH THE ASSESSEES IN EARLIER YEARS. A CCORDINGLY, WE DO NOT FIND ANY MERIT IN THESE APPEALS THEY ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JANUARY, 2012. SD/- SD/- [K.D. RANJAN] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20.1.2012 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT ITA NOS. 1394, 1392/DEL/11 ASSTT. YEARS 2006-07 11 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT