The ITO,Intl.Taxation-II, Ahmedabad V. B.A. Research India Pvt.Ltd., Ahmedabad

ITA 3106/AHD/2011

• Counselvise Citation: 310620514 RSA 2011
• Duration Of Justice: 3 year(s) 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 29-09-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 08-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JIGAR M PATEL
• Keywords: Recovery proceedings; Double taxation relief; Deemed to accrue or arise in india; Retrospective amendment; Permanent establishment; Advance ruling
• Section: 201(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD .. , ( .) , BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.3106/AHD/2011 ( / ASSESSMENT YEAR : 2010-11) THE INCOME TAX OFFICER INTERNATIONAL TAXATION-II AHMEDABAD / VS. B.A. RESEARCH INDIA PVT.LTD. JUDGES BUNGALOWS ROAD AHMEDABAD % & ./ ./ PAN/GIR NO. : AACCB 4535 A ( %( / APPELLANT ) .. ( )*%( / RESPONDENT ) %( + / APPELLANT BY : SHRI RAKESH JHA, SR.DR )*%( , + / RESPONDENT BY : SHRI JIGAR M. PATEL -. , /& / DATE OF HEARING 29/09/2015 0123 , /& / DATE OF PRONOUNCEMENT 30/11/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-GANDHINAGAR [CIT(A) IN SHORT] DATED 02/09/2011 PERTAINING TO ASSESSMENT Y EAR (AY) 2010-11. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL:- 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOL DING THAT THE SERVICES WERE NOT MADE AVAILABLE, IN THE LIGHT OF T HE PROVISIONS OF ARTICLE 12(4)(A) AND 12(4)(B) OF DTAA AS WELL AS TH E PROTOCOL TO THE ITA NO.3106/AHD /2011 THE ITO VS. B.A. RESEARCH INDIA LTD. ASST.YEAR 2010-11 - 2 - DTAA WHICH SPECIFICALLY INCLUDES SUCH SERVICES UNDE R ARTICLE 12(4)(B). 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS WHILE P LACING RELIANCE IN THE CASE OF MAHINDRA & MAHINDRA LTD, EVEN THOUGH THE FACTS OF THE CASE AND THE ASSESSEE ARE DIFFERENT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT( A) MAY BE CANCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED TO THE ABOVE EXTENT. 5. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF H EARING. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSING OFFI CER (AO IN SHORT) PASSED ORDER U/S.201(1) & 201(1A) R.W.S.195 OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE ORDER D ATED 31/03/2010 ON THE BASIS THAT THE ASSESSEE HAD MADE PAYMENTS TO NON-RE SIDENT PARTIES ON WHICH HE HAS NOT DEDUCTED THE TAX. THE ASSESSEE BE FORE THE AO SUBMITTED THAT THE PAYMENTS WERE NOT SUBJECTED TO T AX, THEREFORE THE ASSESSEE WAS NOT LIABLE TO DEDUCT TAX ON SUCH PAYME NTS. HOWEVER, THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AN D PROCEEDED TO HOLD THE ASSESSEE AS ASSESSEE IN DEFAULT FOR NON-DEDUCTI ON OF TAX AND MADE THE ASSESSEE LIABLE FOR TAX A SUM OF RS.7,96,325/- AND INTEREST THEREON U/S.201(1A) OF THE ACT OF RS.33,845/-. THE AO HELD THAT THE PAYMENTS MADE TO B.A. RESEARCH INTERNATIONAL (USA), ALLIED R ESEARCH INTERNATIONAL INC. (CANADA) AND MDS PHARMA SERVICES INC. (USA) ARE TAXABLE BOTH AS PER PROVISION OF THE INCOME TAX ACT , AND THE TAX TREATY BETWEEN INDIA AND USA AND INDIA-CANADA. THE ASSESSE E BEING AGGRIEVED ITA NO.3106/AHD /2011 THE ITO VS. B.A. RESEARCH INDIA LTD. ASST.YEAR 2010-11 - 3 - BY THE ORDER, PREFERRED AN APPEAL BEFORE THE LD.CIT (A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE PARTLY ALLOWED THE APPEAL. WHILE PARTLY ALLOWING THE APPEAL, THE LD.CIT(A) HEL D THAT THE SERVICES PROVIDED TO THE ASSESSEE BY THE NON-RESIDENT PARTIE S OF USA AND CANADA DID NOT FALL WITHIN THE PURVIEW OF INCLUDED SERVIC ES UNDER ARTICLE 12(4)(B) AND, HENCE, THERE WAS NO LIABILITY ON THE ASSESSEE TO DEDUCT TDS U/S.195 OF THE ACT, WHILE MAKING PAYMENT FOR SUCH B IO-ANALYTICAL SERVICES RENDERED TO IT. THE LD.CIT(A) WHILE REACH ING TO THIS CONCLUSION RELIED UPON THE DECISION OF THE AUTHORITY FOR ADVAN CE RULINGS (INCOME- TAX), NEW DELHI RENDERED IN THE CASE OF ANAPHARM IN C., REPORTED AT [2008] 305 ITR 394 (AAR). THE LD.CIT(A) ALSO FOLLO WED THE DECISION OF THE COORDINATE BENCH (ITAT MUMBAI BENCH L) RENDER ED IN THE CASE OF WOCKHARDT LTD. VS. ASST.CIT REPORTED AT [2010] 10 T AXMANN.COM 208 (MUM.). AGGRIEVED BY THE ORDER OF THE LD.CIT(A), N OW THE REVENUE IS IN APPEAL BEFORE US. 3. THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS AGAI NST IN HOLDING THAT THE SERVICE WERE NOT MADE AVAILABLE, IN LIGHT OF TH E PROVISIONS OF ARTICLE 12(4)(A) AND 12(4)(B) OF DTAA AS WELL AS THE PROTOC OL TO THE DTAA WHICH SPECIFICALLY INCLUDES SUCH SERVICES UNDER ART ICLE 12(4)(B). THE LD.SR.DR VEHEMENTLY ARGUED THAT THE LD.CIT(A) WAS N OT JUSTIFIED IN DELETING THE ADDITION. HE SUBMITTED THAT THE ASSES SEE WAS LIABLE TO DEDUCT THE TAX ON THE PAYMENTS MADE IN CONSIDERATION OF T HE TECHNICAL SERVICES ITA NO.3106/AHD /2011 THE ITO VS. B.A. RESEARCH INDIA LTD. ASST.YEAR 2010-11 - 4 - RENDERED TO THE ASSESSEE AND SUCH TECHNICAL SERVICE S ARE LIABLE TO TAX AS PER THE PROVISIONS OF INCOME TAX ACT. 3.1. ON THE CONTRARY, LD.COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE ISSUE IS SQUARELY COVERED BY THE JUDGEMENTS/DECISIO NS OF VARIOUS JUDICIAL PRONOUNCEMENTS. THE LD.COUNSEL FOR THE ASSESSEE RE LIED UPON THE FOLLOWING DECISIONS:- (I) DECISION OF ITAT AHMEDABAD BENCH D -IN THE CASE OF ITO (INTNL.TAXATION), VS. DENIAL ME ASUREMENT SOLUTIONS (P.) LTD. REPORTED AT [2014] 52 TAXMANN.C OM 443 (AHMEDABAD TRIB.). (II) DECISION OF ITAT HYDERABAD BENCH B -IN THE CASE OF DY.CIT VS. DR.REDDYS LABOR ATORIES LTD. REPORTED AT [2013] 35 TAXMANN.COM 339 (HYD ERABAD-TRIB.) (III) DECISION OF AUTHORITY FOR ADVANCE RULINGS (I T), NEW DELHI -IN THE CASE OF ANAPHARM INC., IN RE REPORTED AT [2008] 305 ITR 394 (AAR) (IV) DECISION OF ITAT MUMBAI BENCH L -IN THE CASE OF WOCKHARDT LTD. VS. ACIT REPORTED AT [2011] 10 TAXMANN.COM 208 (MUM BAI) (V) DECISION OF HONBLE HIGH COURT OF KARNATAKA -IN THE CASE OF CIT VS. DE BEERS INDIA MIN ERALS (P.) LTD. REPORTED AT [2012] 21 TAXMANN.COM 214 (KAR .) (VI) DECISION OF ITAT DELHI BENCH A IN THE CASE OF DY.CITVS.PAN AMSAT INTERNATI ONAL SYSTEMS INC. REPORTED AT [2006] 9 SIT 100 (DELHI). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS THE JUDGEMENTS/DECISIONS RELIED UPON BY THE ASSESSEE. THERE IS ITA NO.3106/AHD /2011 THE ITO VS. B.A. RESEARCH INDIA LTD. ASST.YEAR 2010-11 - 5 - NO DISPUTE WITH REGARD TO THE FACT THAT UNDER THE C ONTRACT, THE NON-RESIDENT ENTITY HAS CARRIED OUT BIO-ANALYTICAL SERVICES ON T HE SAMPLE SUPPLIED BY THE SPONSOR AND SUBMITTED ITS REPORT ON THE BIO-AN ALYSIS OF THE TABLETS STUDIES. THE SAID SERVICES HAVE BEEN PERFORMED OUT SIDE INDIA. THE NON- ENTITIES HAVE NO PERMANENT ESTABLISHMENT IN INDIA. IT IS THE CONTENTION OF THE ASSESSEE THAT THE SERVICES SO RENDERED ARE NOT MADE AVAILABLE TO THE ASSESSEE. IN THIS BACKGROUND, THE LD.CIT(A) HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE BY OBSERVING AS UNDER:- 5. I HAVE GONE THROUGH THE ORDER OF THE AO AND TH E SUBMISSIONS OF THE ASSESSEE. THE GROUND OF APPEAL AGAINST DEMAND RAISE D U/S.201(L) REQUIRES CONSIDERATION OF THE FOLLOWING 3 ISSUES: A) WHETHER THE PAYMENTS MADE TO THE NON RESIDENTS A RE INCOME DEEMED TO ACCRUE OR ARISE IN INDIA UNDER THE PROVISIONS OF SECTION 9(2)(VII) AS BEING 'FEES FOR TECHNICAL SERVICES'. B) WHETHER THE INCOME EVEN IF DEEMED TO ACCRUE OR A RISE IN INDIA UNDER SECTION 9(2)(VII) IS OF THE NATURE WHICH IS EXEMPT FROM TAXATION IN INDIA UNDER THE DTA AGREEMENTS WITH THE USA AND CANADA RE SPECTIVELY. C) WHETHER THE TAX HAS TO BE DEDUCTED U/S.195 EVEN WHEN THE INCOME IN THE HAND OF NON-RESIDENT IS NOT TAXABLE. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSES SEE HAS MADE PAYMENTS TO CONCERNS TO (I) B.A. RESEARCH INTERNATI ONAL (USA), (II) ALLIED RESEARCH INTERNATIONAL INC. (CANADA) AND (II I) MDS PHARMA SERVICES INC. (USA), WHO ARE RESIDENTS OF USA AND C ANADA FOR PROVIDING ANALYTICAL SERVICES AND TESTING CHARGES. THE NON-RESIDENT COMPANIES HAD NO PE IN INDIA. THESE SERVICES WERE U NDISPUTEDLY PROVIDED OUTSIDE INDIA, BUT WERE UTILIZED FOR EARNI NG INCOME FROM ITA NO.3106/AHD /2011 THE ITO VS. B.A. RESEARCH INDIA LTD. ASST.YEAR 2010-11 - 6 - SOURCE IN INDIA WHICH IS MANUFACTURING OF DRUGS IN INDIA AND SUBSEQUENT SALES. NOW, COMING TO THE FIRST ISSUE, I.E. WHETHER THE PAYMENTS MADE TO THE NON RESIDENTS ARE INCOME DEEMED TO ACCRUE OR ARISE IN INDIA UNDER THE PROVISIONS OF SECTION 9(2)(VII) AS BEING 'FEES FOR TECHNICAL SERVICES'. THE SERVICES ARE DEFINITELY OF THE NATURE OF TECHNICAL SERVICES AND AS THE SERVICES ARE UTILIZED FOR EARNING INCOME FROM SOURC E IN INDIA, THESE ARE NOT EXEMPTED U/S.9(2)(VII)(B). THE APPELLANT HAS PL EADED THAT EVEN AFTER THE INTRODUCTION OF THE EXPLANATION TO SEC. 9(2) IN SERTED BY THE FINANCE ACT 2007 W.E.F. 1.6.1976, THE RATIO OF THE SUPREME COURT DECISION IN THE CASE OF 'ISHIKAWAJIMA-HARIMA HEAVY INDUSTRIES LTD. V/S. DIT, 158 TAXMAN 259 (SC)' IS APPLICABLE. THE APPELLANT HAD P LACED RELIANCE ON THE DECISION OF 'JINDAL THERMAL POWER COMPANY LIMIT ED V. DOT [2009] 225 CTR 220 F , WHEREIN IT HAS BEEN CLEARLY HELD 'THAT THE CRITER IA OF RENDERING SERVICE IN INDIA AND THE UTILIZATION O F SERVICE IN INDIA LAID DOWN BY THE SUPREME COURT IN ISHIKAWAJIMA'S CASE (S UPRA) TO ATTRACT TAX LIABILITY U/S. 9(L)(VII) REMAINS UNTOUCHED AND UNAFFECTED BY EXPLANATION TO SEC. 9(2). IT IS SEEN THAT THE APPELLANT HAS NOT NOTED THE FAC T THAT THE EXPLANATION TO SECTION 9 HAS BEEN AGAIN SUBSTITUTED BY THE FINANCE ACT, 2010 WITH RETROSPECTIVE EFFECT FROM 1/6/1976. NOW, THE INCOME IS TO BE INCLUDED IN THE TOTAL INCOME OF THE NON-RESIDENT, WHETHER OR NO T THE NON-RESIDENT HAS RENDERED SERVICES IN INDIA. THE DECISION IN THE CASE OF 'JINDAL THERMAL POWER COMPANY LIMITED V. DOT [2009] 225 CTR 220', ON THE ISSUE THEREFORE IS NO LONGER GOOD LAW. AFTER THE AM ENDMENT WITH RETROSPECTIVE EFFECT, THE PAYMENTS MADE BY THE APPE LLANT ARE DEFINITELY FALLING UNDER THE DEFINITION OF FEES FOR TECHNICAL SERVICES' AND THE INCOME IS DEEMED TO ACCRUE OR ARISE IN INDIA UNDER THE PRO VISIONS OF SECTION 9(2)(VII). THE NEXT ISSUE TO BE DECIDED IS WHETHER THE INCOME WHICH HAS BEEN DECIDED TO BE DEEMED TO ACCRUE OR ARISE IN INDIA UN DER SECTION 9(2)(VII) IS OF THE NATURE WHICH IS EXEMPT FROM TAXATION IN I NDIA UNDER THE DTA AGREEMENTS WITH THE USA AND CANADA RESPECTIVELY. AS THERE IS NO PE IN ITA NO.3106/AHD /2011 THE ITO VS. B.A. RESEARCH INDIA LTD. ASST.YEAR 2010-11 - 7 - INDIA IT WOULD HAVE TO BE SEEN WHETHER, IN WHICH CO UNTRY AND HOW THE 'FEES FOR TECHNICAL SERVICES' ARE TAXABLE AS PER TH E DTA AGREEMENTS. THE APPELLANT'S CONTENTION IS THAT ARTICLE 12(4)(B) OF THE DTAA BETWEEN INDIA AND USA/CANADA IS NOT APPLICABLE SINCE THE NO N-RESIDENT PARTIES DID NOT 'MAKE AVAILABLE' ANY TECHNICAL KNOWLEDGE, E XPERIENCE, SKILL, KNOW-HOW OR PROCESSES. IN THIS CASE THE CONCERNS IN USA AND CANADA WERE CONDUCTING TESTS ON THE DRUGS WHICH WERE ALREA DY RESEARCHED AND AFTER ANALYZING THE DRUGS ON THE REQUIRED PARAMETER S FINAL REPORTS WERE SUBMITTED TO THE ASSESSEE. I HAVE PERUSED THE SUBMI SSIONS MADE BY THE APPELLANT AS WELL AS THE ORDER PASSED BY THE AO. ON PERUSAL OF THE DECISIONS CITED BY THE APPELLANT IT CAN BE CONCLUDE D THAT SERVICE, WHICH IS TECHNICAL IN NATURE CAN BE SAID TO BE 'FEES FOR INCLUDED SERVICES' ONLY WHEN IT 'MAKE AVAILABLE' TECHNICAL KNOWLEDGE OR SKI LLS TO THE RECIPIENT OF SERVICES IE ONLY WHEN RECIPIENT OF SERVICES CAN APPLY THE SAME ON HIS OWN. IN THIS CONNECTION OBSERVATIONS MADE BY THE AU THORITY FOR ADVANCE RULING (AAR) AS LAID DOWN IN THE CASE OF ANAPHARM I NC. (2008) 305 JTR 394 SQUARELY APPLIES TO THE FACTS OF THE APPELL ANT'S CASE, SINCE IT RELATED TO RENDERING OF BIO-ANALYTICAL SERVICES BY THE NON-RESIDENT APPLICANT AND UNDER THE FRAMEWORK OF THE SAME LANGU AGE OF ARTICLE 12(4)(B) OF THE CANADA-INDIA DTAA, WHICH IS PARI-MA TERIA WITH THE U.S.-INDIA DTAA AS WELL: 'PAYMENT OF CONSIDERATION WOULD BE REGARDED AS 'FEE FOR TECHNICAL/INCLUDED SERVICES' ONLY IF THE TWIN TEST OF RENDERING SERVICES AND MAKING TECHNICAL KNOWLEDGE AVAILABLE AT THE SAME TIME IS SATISFIED. IN THE PRE SENT CASE, THE APPLICANT RENDERS BIO-ANALYTICAL SERVICES WHICH , NO DOUBT, ARE VERY SOPHISTICATED IN NATURE, BUT THE AP PLICANT DOES NOT REVEAL TO ITS CLIENTS AS TO HOW IT CONDUCT S THOSE TESTS OR THE INPUTS THAT HAVE GONE INTO IT, SO AS T O ENABLE THEM TO CARRY OUT THOSE TESTS THEMSELVES IN FUTURE. A BROAD DESCRIPTION OR INDICATION OF THE TYPE OF TEST CARRI ED OUT TO REACH THIS CONCLUSION DOES NOT ENABLE THE APPLICANT 'S CLIENT TO DERIVE REQUISITE KNOWLEDGE TO CONDUCT THE TESTS OR TO DEVELOP THE TECHNIQUE BY ITSELF.' ITA NO.3106/AHD /2011 THE ITO VS. B.A. RESEARCH INDIA LTD. ASST.YEAR 2010-11 - 8 - THEREFORE, THE SERVICES PROVIDED TO THE APPELLANT B Y THE NON-RESIDENT PARTIES OF USA AND CANADA DID NOT FALL WITHIN THE P URVIEW OF 'INCLUDED SERVICES' UNDER ARTICLE 12(4)(B) AND HENCE THERE WA S NO LIABILITY ON THE APPELLANT TO DEDUCT TDS U/S. 195 OF THE I.T. ACT, W HILE MAKING PAYMENT FOR SUCH BIO-ANALYTICAL SERVICES RENDERED TO IT. FURTHER THE RATIO MUMBAI ITAT DECISION IN THE CASE OF WOCKHARDT LTD. V. ACIT (2010) 10 TAXMANN.COM 208 (MUM.), ALSO SQUA RELY APPLIES TO THE FACTS OF THE APPELLANT'S CASE. THE SAME VIEW HAS BEEN FOLLOWED IN VARIOUS DECISION S INCLUDING DECISION OF MUMBAI SPECIAL BENCH IN THE CASE OF MAH INDRA & MAHINDRA LIMITED (313 UR 263). IN VIEW OF THE PROVISIONS OF ARTICLE 12 OF DTAA READ WITH ABOVE REFERRED JUDICIAL PRECEDENTS, I AM INCLINED TO AGREE WITH THE SUBMISSIONS THAT SERVICES CANNOT BE CATEGO RISED AS 'FEES FOR INCLUDED SERVICES' UNDER THE DTA AGREEMENTS WITH US A AND CANADA AND THEREFORE ARE NOT TAXABLE IN INDIA AS THE MORE FAVOURABLE DTA A PROVISIONS ARE TO BE APPLIED. THEREFORE, IT IS HELD THAT THE INCOME OF THE NON-RESIDENT CONCERN IN THE FACTS AND CIRCUMSTANCES OF THE CASE ARE NOT TAXABLE IN INDIA. THE NEXT ISSUE TO BE DECIDED IS WHETHER THE TAX HAS TO BE DEDUCTED U/S. 195 EVEN WHEN THE INCOME IN THE HAND OF NON-RESIDEN T IS NOT TAXABLE. AS THE REMITTANCE MADE IS NOT CHARGEABLE TO TAX IN IND IA, I AM OF THE VIEW THAT, IN THE GIVEN CASE PROVISIONS OF SECTION 195 A RE ALSO NOT APPLICABLE. THE HON'BLE SUPREME COURT HAS DECIDED THE VERY ISSU E IN GE TECHNOLOGY CENTRE P LTD 327 ITR 456.LT HAS HELD THAT U/S. S 195 PAYER IS BOUND TO DEDUCT TAX ONLY IF THE SUM PAYABLE IS A SSESSABLE TO TAX IN INDIA. FURTHER, AS PROVISIONS OF SECTION 195 OF THE ACT ARE NOT APPLICABLE THERE IS NO QUESTION OF RECOVERY OF TAX IN ACCORDANCE WITH PROVISIONS OF SECTION 201 OF THE ACT. RELIANCE PLAC ED BY THE AO ON THE DECISION OF TRANSMISSION CORPORATION OF INDIA 239 I TR 587 IS MISPLACED. THEREFORE, THE APPELLANT SUCCEEDS ON THE ISSUE OF CHARGEABILITY OF TAX UNDER THE PROVISIONS OF SEC.20 1(L). ITA NO.3106/AHD /2011 THE ITO VS. B.A. RESEARCH INDIA LTD. ASST.YEAR 2010-11 - 9 - 6. NEXT GROUND IS AGAINST THE CHARGING OF INTEREST U/S. 201(1A). THIS GROUND IS CONSEQUENTIAL TO THE RAISING OF DEMAND U/ S. 201(1) AND IS DECIDED ACCORDINGLY. 4.1. FROM THE ABOVE, IT IS EVIDENT THAT THE LD.CIT( A) HAVE GIVEN A FINDING ON FACT THAT THE SERVICE WHICH IS TECHNICA L IN NATURE CAN BE SAID TO BE 'FEES FOR INCLUDED SERVICES' ONLY WHEN IT HAS 'M ADE AVAILABLE' TECHNICAL KNOWLEDGE OR SKILLS TO THE RECIPIENT OF S ERVICES, I.E. RECIPIENT OF SERVICES CAN APPLY THE SAME ON HIS OWN. WE ARE IN FULL AGREEMENT OF THE ABOVE VIEW OF THE LD.CIT(A). IN THE PRESENT CASE, THE ASSESSEE HAD SENT SAMPLES TO THE EXPERTS OUTSIDE INDIA AND THOSE EXPE RTS SUBMITTED THEIR REPORT. THERE IS NOTHING ON RECORD SUGGESTING THAT THE SERVICES RENDERED TO THE ASSESSEE WERE MADE AVAILABLE TO THE ASSESSEE AND ALSO THE ASSESSEE WAS ABLE TO APPLY THE SAME OF HIS OWN. IN THE ABSE NCE OF THE SAME, SUCH SERVICE WOULD NOT FALSE WITHIN THE AMBIT OF THE INC LUDED SERVICE IN THE LIGHT OF DECISION OF THE AUTHORITY FOR ADVANCE RUL INGS (INCOME-TAX), NEW DELHI IN THE CASE OF ANAPHARM INC., IN RE(SUPR A), THE DECISION OF THE COORDINATE BENCH IN THE CASE OF WOCKHARDT LTD. VS. ACIT(SUPRA) AND THE DECISION OF HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS. DE BERS INDIA MINERALS (P.) LTD.(SUPRA). THE REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD TO REBUT THE FINDINGS OF THE LD. CIT(A) THAT THE SERVICES WERE ACTUALLY MADE AVAILABLE TO THE ASSESSEE AND WO ULD BE TAXABLE. UNDER THESE FACTS, WE DO NOT SEE ANY REASON TO INTE RFERE WITH THE FINDINGS ITA NO.3106/AHD /2011 THE ITO VS. B.A. RESEARCH INDIA LTD. ASST.YEAR 2010-11 - 10 - OF THE LD.CIT(A), SAME IS HEREBY UPHELD. THUS, GR OUND RAISED BY THE REVENUE IS REJECTED. 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 30 TH DAY OF NOVEMBER, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( . ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED / 11 /2015 6/..-, .-../ T.C. NAIR, SR. PS !'#$%&' &$ / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 789 : / CONCERNED CIT 4. : ( ) / THE CIT(A)-GANDHINAGAR 5. ;< )-89 , / 893 , 7 / DR, ITAT, AHMEDABAD 6. <= >. / GUARD FILE. ! / BY ORDER, *; ) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 9.XI.15 (DICTATION-PAD 9 - PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..9.XI.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 30.11.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30.11.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER