Poddar Pigments Ltd., New Delhi V. ACIT, Circle-20(1), New Delhi

ITA 5972/DEL/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9664 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 20-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SARAS KUMAR
• Keywords: Double taxation relief; Permanent establishment
• Section: 195; 13

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI F BEN CH, NEW DELHI [THROUGH VIDEO CONFERENCING] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI AMIT SHUKLA, JUDICIA L MEMBER ITA NO. 5972/DEL/2017 [ASSESSMENT YEAR: 2014-15] M/S PODDAR PIGMENTS LTD VS. THE A.C.I.T A-283, GROUND FLOOR, CIRCLE 20(1) OKHLA INDUSTRIAL AREA NEW DELHI PHASE I, NEW DELHI PAN: AACCB 4590 M [APPELLANT] [RESPONDENT] DATE OF HEARING : 01.07. 2020 DATE OF PRONOUNCEMENT : 0 2.07.2020 ASSESSEE BY : SHRI P.C. PARWAL, ADV REVENUE BY : SHRI SARAS KUMAR, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-7, NEW DELHI DATED 24.07.2017 PERTAINING TO ASSESSMENT YEAR 2014-15. 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS AS UNDER: THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF TH E ASSESSING OFFICER IN MAKING DISALLOWANCE OF RS. 17,92,851/- A ND RS. 19,02,050/- U/S 40(A))((I) OF THE INCOME TAX ACT, 1 961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] BY HOLDING THAT PAYMENT TO DR. WERNER STIBAL AND HANS PETER MEYER R ESPECTIVELY IS A PAYMENT IN THE NATURE OF TECHNICAL AND CONSULT ANCY SERVICES FALLING U/S 9(1)(VII) R.W. EXPLANATION 2 BY NOT ACC EPTING THE CONTENTION OF THE ASSESSEE THAT PAYMENT IS FOR 'IND EPENDENT SCIENTIFIC ACTIVITY COVERED BY ARTICLE 14 OF THE SAID DTAA WITH SWITZERLAND AND THUS NOT LIABLE FOR DEDUCTION OF TA X AT SOURCE U/S 195 OF THE ACT'. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH AT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF MASTER BATCHES AND ENGINEERING PLASTICS COMPOUNDS. THE ASS ESSING OFFICER NOTICED THAT THE ASSESSEE HAS MADE PAYMENT OF RS. 6 6,53,411/- ON ACCOUNT OF TECHNICAL FEES OF RS. 29,57,610/- TO SHR I SERGIOMANCIALI, RS. 17,92,851/- TO DR. SIBAL AND RS. 19,02,950/- TO HAN S PETER MEYER OF SWITZERLAND. 3 4. THE ASSESSEE WAS ASKED TO EXPLAINED WHETHER TAX WAS DEDUCTED ON THIS AMOUNT OR NOT AND WHY DISALLOWANCE U/S 40(A (I) OF THE ACT MAY NOT BE MADE IN THIS REGARD. 5. IN RESPONSE, THE ASSESSEE FILED DETAILED REPLY. 6. HOWEVER, THE ASSESSING OFFICER OBSERVING THAT SI MILAR DISALLOWANCE WAS ALSO MADE IN A.YS 2008-09 TO 2013- 14 AND THE LD. CIT(A) HAS ALSO DISMISSED THE APPEAL OF THE ASSESSE E HOLDING THAT THE PAYMENTS FALL UNDER THE CATEGORY FEE FOR TECHNICAL SERVICES, ADDED BACK RS. 36,94,801/- TO THE TOTAL INCOME OF THE ASS ESSEE. 7. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFOR E THE LD. CIT(A) WHO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 8. AT THE VERY OUTSET, THE LD. COUNSEL FOR THE ASSE SSEE SUBMITTED THAT THE ISSUE INVOLVED IN THIS CASE IS SQUARELY CO VERED IN FAVOUR OF THE ASSESSEE BY ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y 2013- 14. THE ASSESSEE FURNISHED A COPY OF THE ORDER OF THE TRIBUNAL. 4 9. PER CONTRA, THE LD. DR FAIRLY CONCEDED TO THE SA ME. 10. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE O RDERS OF THE AUTHORITIES BELOW. WE FIND FORCE IN THE CONTENTIO NS OF THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THAT A SIMILAR ISSUE WAS CONSIDERED BY THE CO- ORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO. 52 59/DEL/2016FOR ASSESSMENT YEARS 2013-14. THE RELEVANT FINDINGS OF THE CO-ORDINATE BENCH READ AS UNDER: 8. COORDINATE BENCH OF THE TRIBUNAL IN ASSESSEE'S OWN CASE FOR AYS 2008-09, 2009-10, 2010-11 AND 2011-12 VIDE ORDE R DATED 23.08.2018, AVAILABLE AT PAGES 26 TO 55 OF THE PAPE R BOOK, ACCEPTED THE CONTENTION RAISED BY THE LD. AR FOR TH E ASSESSEE THAT THE SERVICES RENDERED BY DR. WERNER STIBAL AND HANS PETER MEYER ARE NOT COVERED BY ARTICLE 12 OF DTAA RATHER THESE ARE COVERED UNDER ARTICLE 14 OF THE DTAA BY RETURNING FOLLOWING FINDINGS :- '21. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND P ERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE IDENTICAL ISSU E HAS BEEN DECIDED BY US IN THE APPEAL OF THE ASSESSEE FOR ASS ESSMENT YEAR 2008-09 WHEREIN, WE HAVE HELD THAT SUCH SERVICES AR E COVERED BY THE PROVISION OF SECTION 9(1)(VII) OF THE ACT AND A LSO BY VIRTUE OF ARTICLE 14 OF THE DTAA SUCH SUM ARE CHARGEABLE TO TAX IN GERMANY AND HENCE, NO TAX IS REQUIRED TO BE WITHHEL D UNDER SECTION 195 OF THE ACT. FOR THE SIMILAR REASONS, WE DIRECT THE LD ASSESSING 5 OFFICER TO DELETE THE DISALLOWANCE OF RS. 268980/- U/S 40(A)(I) WITH RESPECT TO PAYMENT MADE TO DR. U THIELE. 22. THE SECOND ISSUE INVOLVED IN THE SAME GROUND IS WITH RESPECT TO DISALLOWANCE U/S 40(A)(I) OF RS. 1082175/- MADE TO DR. WERNER STIBAL WHO IS RESIDENT OF SWISS CONFEDERATION WHO P ROVIDED PROFESSIONAL SERVICES TO THE ASSESSEE. THE LD ASSES SING OFFICER NOTED THAT SIMILAR SERVICES WERE PROVIDED BY THE SW ISS NATIONAL AND WHERE THERE IS SPECIFIC ARTICLE 12 FOR FEES FOR TECHNICAL SERVICES IT HAS TO BE CONSIDERED IN THAT ARTICLE ON LY. THEREFORE, HE REJECTED THE CLAIM OF THE ASSESSEE THAT THE INCOME OF THE FOREIGN NATIONAL FALLS UNDER THE ARTICLE 14 OF DTAA AND NO TAX IS REQUIRED TO BE DEDUCTED. THE LD CIT(A) ORIGINALLY MISSED THE ISSUE AND FAILED TO DECIDE ON MERIT AND SUBSEQUENTLY HE RECTI FIED HIS ORDER ON 08.08.2014 CONFIRMING THE VIEW OF THE LD ASSESSI NG OFFICER. 23. THE LD AR REPEATED THE SAME ARGUMENT WHICH WERE ADVANCED BEFORE THE LD LOWER AUTHORITIES AND THE LD DR SUPPO RTED THE ORDER OF THE LD LOWER AUTHORITIES. 24. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTI ONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IT IS UNDISPUT ED FACTS THAT SERVICES HAVE BEEN PROVIDED BY AN INDIVIDUAL WHICH ARE IN THE NATURE OF INDEPENDENT SCIENTIFIC SERVICES . ACCORDING TO THE ASSESSEE IT FALLS UNDER ARTICLE 14 OF THE DTAA WHEREAS REVENUE IS OF THE VIEW THAT IT FALLS UNDER ARTICLE 12 OF THE DTAA. 25. ARTICLE 14 OF THE INDIA SWISS DTAA IS AS UNDER :- ARTICLE 14 INDEPENDENT PERSONAL SERVICES 6 1. - INCOME DERIVED BY A RESIDENT OF A CONTRACTING STATE IN RESPECT OF PROFESSIONAL SERVICES OR OTHER ACTIVITIES OF AN INDEPENDENT CHARACTER SHALL BE TAXABLE ONLY IN THAT STATE EXCEP T IN THE FOLLOWING CIRCUMSTANCES, WHEN SUCH INCOME MAY ALSO BE TAXED IN THE OTHER CONTRACTING STATE : (A) IF HE HAS A FIXED BASE REGULARLY AVAILABLE TO H IM IN THE OTHER CONTRACTING STATE FOR THE PURPOSE OF PERFORMING HIS ACTIVITIES; IN THAT CASE, ONLY SO MUCH OF THE INCOME AS IS ATTRIBU TABLE TO THAT FIXED BASE MAY BE TAXED IN THAT OTHER STATE; OR (B) IF HIS STAY IN THE OTHER STATE IS FOR A PERIOD OR PERIODS AGGREGATING 183 DAYS OR MORE IN ANY 12 MONTH PERIOD COMMENCING OR ENDING IN THE FISCAL YEAR CONCERNED; IN THAT CAS E, ONLY SO MUCH OF THE INCOME AS IS DERIVED FROM HIS ACTIVITIES PERFOR MED IN THAT OTHER STATE MAY BE TAXED IN THAT OTHER STATE. 2. THE TERM 'PROFESSIONAL SERVICES' INCLUDES ESPECI ALLY INDEPENDENT SCIENTIFIC, LITERARY, ARTISTIC, EDUCATIONAL OR TEAC HING ACTIVITIES AS WELL AS THE INDEPENDENT ACTIVITIES OF PHYSICIANS, L AWYERS, ENGINEERS, ARCHITECTS, SURGEONS, DENTISTS AND ACCOUNTANTS.] 26. ARTICLE 12 OF THE INDO SWISS DTAA IS AS UNDER :- [ ARTICLE 12] ROYALTIES AND FEES FOR TECHNICAL SERVICES 1. - ROYALTIES AND FEES FOR TECHNICAL SERVICES ARIS ING IN A CONTRACTING STATE AND PAID TO A RESIDENT OF THE OTH ER CONTRACTING STATE MAY BE TAXED IN THAT OTHER STATE. 7 2. HOWEVER, SUCH ROYALTIES AND FEES FOR TECHNICAL S ERVICES MAY ALSO BE TAXED IN THE CONTRACTING STATE IN WHICH THEY ARI SE AND ACCORDING TO THE LAWS OF THAT STATE; BUT IF THE BEN EFICIAL OWNER OF THE ROYALTIES OR FEES FOR TECHNICAL SERVICES IS A R ESIDENT OF THE OTHER CONTRACTING STATE, THE TAX SO CHARGED SHALL N OT EXCEED 10 PER CENT OF THE GROSS AMOUNT OF THE ROYALTIES OR TH E FEES FOR TECHNICAL SERVICES. 3. THE TERM 'ROYALTIES' AS USED IN THIS ARTICLE MEA NS PAYMENTS OF ANY KIND RECEIVED AS A CONSIDERATION FOR THE USE OF , OR THE RIGHT TO USE, ANY COPYRIGHT OF A LITERARY, ARTISTIC, OR SCIE NTIFIC WORK, INCLUDING CINEMATOGRAPH FILMS OR WORK ON FILM, TAPE OR OTHER MEANS OF REPRODUCTION FOR USE IN CONNECTION WITH RADIO OR TELEVISION BROADCASTING, ANY PATENT TRADEMARK, DESIGN OR MODEL , PLAN, SECRET FORMULA OR PROCESS, OR FOR THE USE OF, OR THE RIGHT TO USE, ANY INDUSTRIAL, COMMERCIAL, OR SCIENTIFIC EQUIPMENT, OR FOR INFORMATION CONCERNING INDUSTRIAL, COMMERCIAL OR SCIENTIFIC EXP ERIENCE. 4. FOR PURPOSES OF THIS ARTICLE THE TERM 'FEES FOR TECHNICAL SERVICES' MEANS PAYMENTS OF ANY KIND TO ANY PERSON IN CONSIDERATION FOR THE RENDERING OF ANY MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES, INCLUDING THE PROVISION OF SE RVICES BY TECHNICAL OR OTHER PERSONNEL. 5. NOTWITHSTANDING PARAGRAPH 4, 'FEES FOR TECHNICAL SERVICES' DOES NOT INCLUDE AMOUNTS PAID: (A) FOR TEACHING IN OR BY EDUCATIONAL INSTITUTIONS; 8 (B) FOR SERVICES COVERED BY ARTICLE 14 OR ARTICLE 1 5, AS THE CASE MAY BE. 6. THE PROVISIONS OF PARAGRAPHS 1 AND 2 SHALL NOT A PPLY IF THE BENEFICIAL OWNER OF THE ROYALTIES OR FEES FOR TECHN ICAL SERVICES, BEING A RESIDENT OF A CONTRACTING STATE, CARRIES ON BUSINESS IN THE OTHER CONTRACTING STATE IN WHICH THE ROYALTIES OR F EES FOR TECHNICAL SERVICES ARISE, THROUGH A PERMANENT ESTAB LISHMENT SITUATED THEREIN, OR PERFORMS IN THAT OTHER STATE I NDEPENDENT PERSONAL SERVICES FROM A FIXED BASE SITUATED THEREI N, AND THE CONTRACT IN RESPECT OF WHICH THE ROYALTIES OR FEES FOR TECHNICAL SERVICES ARE PAID IS EFFECTIVELY CONNECTED WITH SUC H PERMANENT ESTABLISHMENT OR FIXED BASE. IN SUCH CASE, THE PROV ISIONS OF ARTICLE 7 OR ARTICLE 14 , AS THE CASE MAY BE, SHALL APPLY. 7. ROYALTIES AND FEES FOR TECHNICAL SERVICES SHALL BE DEEMED TO ARISE IN A CONTRACTING STATE WHEN THE PAYER IS THAT STATE ITSELF, A POLITICAL SUB-DIVISION, A LOCAL AUTHORITY OR A RESI DENT OF THAT STATE. WHERE, HOWEVER, THE PERSON PAYING THE ROYALTIES OR FEES FOR TECHNICAL SERVICES, WHETHER HE IS A RESIDENT OF A C ONTRACTING STATE OR NOT, HAS IN A CONTRACTING STATE A PERMANENT ESTA BLISHMENT OR A FIXED BASE IN CONNECTION WITH WHICH THE LIABILITY T O PAY THE ROYALTIES OR FEES FOR TECHNICAL SERVICES WAS INCURR ED, AND SUCH ROYALTIES OR FEES FOR TECHNICAL SERVICES ARE BORNE BY SUCH PERMANENT ESTABLISHMENT OR FIXED BASE, THEN SUCH RO YALTIES OR FEES FOR TECHNICAL SERVICES SHALL BE DEEMED TO ARISE IN THE STATE IN WHICH THE PERMANENT ESTABLISHMENT OR FIXED BASE IS SITUATED.] 9 8. WHERE, BY REASON OF A SPECIAL RELATIONSHIP BETWE EN THE PAYER AND THE BENEFICIAL OWNER OR BETWEEN BOTH OF THEM AN D SOME OTHER PERSON, THE AMOUNT OF THE ROYALTIES OR FEES FOR 1[T ECHNICAL] SERVICES PAID EXCEEDS THE AMOUNT WHICH WOULD HAVE B EEN PAID IN THE ABSENCE OF SUCH RELATIONSHIP, THE PROVISIONS OF THIS ARTICLE SHALL APPLY ON THE LAST MENTIONED AMOUNT. IN SUCH C ASE, THE EXCESS PART OF THE PAYMENTS SHALL REMAIN TAXABLE ACCORDING TO THE LAWS OF SUCH CONTRACTING STATE, DUE REGARD BEING HAD TO THE OTHER PROVISIONS OF THIS AGREEMENT. 27. ACCORDING TO ARTICLE 12 (5) (B) MEANING OF THE TERM FEES FOR TECHNICAL SERVICES SPECIFICALLY EXCLUDES INCOME COV ERED UNDER ARTICLE 14 AND 15 OF THE DTAA . THEREFORE, ISSUE IN THIS YEAR IS SPECIFICALLY COVERED IN FAVOUR OF THE ASSESSEE B Y THE DECISION OF THE COORDINATE BENCH IN CASE OF GRAPHITE INDIA [200 3] 127 TAXMAN 90 (KOLKATA)(MAG)/[2003] 86 ITD 384 (KOLKATA)/[2003 ] 78 TTJ 418 (KOLKATA) WHEREIN IDENTICAL ISSUE WITH RESPECT TO INDO US DTAA WAS IN QUESTION. THE COORDINATE BENCH HELD AS UNDER :- '7. THE PRIMARY THRUST OF RIVAL CONTENTIONS BEFORE US HAS BEEN IN SUPPORT OF THE ASSESSEE'S CONTENTION THAT THE IMPUG NED PAYMENT FOR CONSULTANCY FEES IS COVERED BY THE SCOPE OF EXP RESSION INDEPENDENT PERSONAL SERVICES' WITHIN MEANINGS OF ARTICLE 15 OF THE INDO US DTAA, AND, OF COURSE, IN SUPPORT OF REVENUE 'S CONTENTION, THAT THE IMPUGNED PAYMENT IS COVERED BY THE SCOPE O F FEES FOR TECHNICAL SERVICES TERMED AS 'FEES FOR INCLUDED SER VICES' WITHIN MEANINGS OF ARTICLE 12(4) OF THE SAME. ON A CAREFUL ANALYSIS OF THE PROVISIONS OF THE ARTICLE 12 , HOWEVER, EVEN THIS PROPOSITION SEEMS TO BE SOMEWHAT FALLACIOUS INASMUCH AS IN CASE THE I MPUGNED 10 PAYMENT FALLS WITHIN THE SCOPE OF EXPRESSION INDEPE NDENT PERSONAL SERVICES' WITHIN MEANINGS OF ARTICLE 15 , THE SAME SHALL AUTOMATICALLY BE OUT OF AMBIT OF ARTICLE 12(4) SINCE, IN VIEW OF THE SPECIFIC PROVISIONS OF ARTICLE 12(5 ), NOTWITHSTANDING THE PROVISIONS OF ARTICLE 12(4 ), 'FEES FOR INCLUDED SERVICES' DOES NOT, INTER ALI A, INCLUDE AMOUNTS PAID TO ANY INDIVIDUAL FOR INDEPEND ENT PERSONAL SERVICES AS DEFINED IN ARTICLE 15. IN OTHER WORDS, WHEN AN AMOUNT PAID TO AN INDIVIDUAL, OR FOR THAT PURPOSE A FIRM O F INDIVIDUALS, RESIDENT IN THE UNITED STATES OF AMERICA, IS FOUND TO BE COVERED BY THE SCOPE OF EXPRESSION INDEPENDENT PERSONAL SE RVICES' WITHIN MEANINGS ASSIGNED IN ARTICLE 15 OF THE INDO US DTAA, IT IS IMMATERIAL WHETHER OR NOT THE SAME IS COVERED BY TH E SCOPE OF FEES FOR INCLUDED SERVICES', WHICH IN COMMON PARLA NCE IS KNOWN AS FEES FOR TECHNICAL SERVICES', UNDER ARTICLE 12(4) OF THE INDO US DTAA. IN THAT EVENTUALITY, IN VIEW OF THE PROVISION S OF ARTICLE 12(5 ), IF AT ALL THAT AMOUNT IS EXIGIBLE TO TAX IN INDI A, IT CAN ONLY BE TAXABLE UNDER ARTICLE 15 OF THE INDO US DTAA. TO THAT EXTENT, PROVISIONS OF ARTICLE 12(4) AND ARTICLE 15 ARE NONCOMPETING AND MUTUALLY EXCLUSIVE.' 28. THERE ARE ALSO SIMILAR CONDITION IN INDO SWISS DTAA IN ARTICLE 12 (5) (B) EXCLUDING PROFESSIONAL SERVICES UNDER ARTICLE 14 AND 15 OF THAT DTAA. THEREFORE, IT IS APPARENT THAT THE SERVI CES ARE COVERED UNDER ARTICLE 14 OF THE DTAA AND NOT UNDER ARTICLE 12 OF DTAA. FURTHER IT IS NOT THE CASE OF THE REVENUE THA T THE SERVICES PROVIDED BY THE SWISS RESIDENT IS NOT PROFESSIONAL SERVICES AS DEFINED UNDER ARTICLE 14(2) OF DTAA. FURTHER, IT IS NOT THE CASE OF THE REVENUE THAT SUCH SERVICES ARE PROVIDED BY HIM FROM ITS FIXED 11 BASE IN INDIA OR HE HAS STAYED FOR MORE THAN 183 DA YS IN INDIA. THEREFORE, WE HOLD THAT NO TAX IS REQUIRED TO BE DE DUCTED ON PAYMENT MADE TO DR. WERNER STIBAL WHO IS A RESIDENT OF SWISS CONFEDERATION AND RENDERED THE PROFESSIONAL SERVICE S WITH RESPECT TO THE SIMILAR SERVICES AS PROVIDED BY DR. U THIELE , THEREFORE, THOSE SERVICES ARE INDEPENDENT, PERSONAL SERVICES I N THE NATURE OF INDEPENDENT SCIENTIFIC SERVICES WHICH SHALL BE TAXA BLE ONLY IN SWISS CONFEDERATION. HENCE, NO TAX IS REQUIRED TO BE DEDU CTED ON SUM PAID BY THE ASSESSEE TO DR. WERNER STIBAL U/S 195 O F THE ACT. IN VIEW OF THIS GROUND NO. 1 OF THE APPEAL OF THE ASSE SSEE IS ALLOWED.' 9. THE DECISIONS CITED AS GVK INDUSTRIES LTD. VS. ITO , DIRECTOR OF INCOME-TAX VS. RIO TINTO TECHNICAL SERVICES AND CEN TRICA INDIA OFFSHORE (P .) LTD. (SUPRA) RELIED UPON BY THE LD. DR FOR THE REVENUE ARE NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE CASE AS THE SERVICES RENDERED IN THIS CASE WAS INDEPENDENT SCIENTIFIC ACTIVITY SPECIFICALLY CO VERED UNDER ARTICLES 14 & 15 OF THE DTAA. 10. SO, FOLLOWING THE DECISION RENDERED BY THE COOR DINATE BENCH OF THE TRIBUNAL IN ASSESSEE'S OWN CASE (SUPRA), DISCUS SED IN PRECEDING PARAS, WE ARE OF THE CONSIDERED VIEW THAT SERVICES RENDERED BY DR. WERNER STIBAL AND HANS PETER MEYER ARE COVERED UNDE R ARTICLE 14 OF THE DTAA WHICH ARE INDEPENDENT SCIENTIFIC ACTIV ITIES. MOREOVER, FINDING ON FACTS HAVE BEEN RETURNED BY TH E COORDINATE BENCH OF THE TRIBUNAL THAT THE ASSESSEE HAS NO FIXE D PE IN INDIA AND IT IS UNDISPUTED CASE OF THE ASSESSEE THAT BOTH DR. WERNER STIBAL AND HANS PETER MEYER HAVE NOT STAYED IN INDI A FOR 183 DAYS 12 OR MORE AND AS SUCH, NO TAX IS REQUIRED TO BE DEDUC TED AT SOURCE, HENCE DISALLOWANCE OF RS.11,77,391 AND RS.10,16,330 /- TO DR. WERNER STIBAL AND HANS PETER MEYER RESPECTIVELY MAD E BY THE AO/CONFIRMED BY THE LD. CIT (A) IS ORDERED TO BE DE LETED. 11. RESPECTFULLY FOLLOWING THE SAME, WE HOLD ACCOR DINGLY. GROUND RAISED BY THE ASSESSEE IS ALLOWED. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO. 5972/DEL/2017 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 02.07. 2020. SD/- SD/- [AMIT SHUKLA ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 02 ND JULY, 2020. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT, NEW DELHI 13 5. DR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER