Dalveer Bhandari, J.

1. This appeal is directed against the order passed by the Income Tax Appellate Tribunal, dated October 4, 2001. The brief facts which are relevant to dispose of this appeal are recapitulated. The assessed has imported a certain number of printing machines from Rotomac (SPA), Italy, in February, 1987. It had earlier entered into an agreement dated October 9,1986, with the Italian company for erection, assembly and commissioning of these for which a remittance of US $ 50,000 was to be made. The asses-see made an application under Section 195(2) of the Income Tax Act, 1961, seeking no objection for the remittance without deducting any tax at source (TDS).

2. The Assessing Officer observed that the activity of the Italian company falls under Section 9(l)(vii) and be taxed as fees for technical services.

3. The Assessing Officer further observed that the Double Taxation Avoidance Agreement (DTAA) between India and Italy does not have any specific article on the taxation of fees for technical services and the matter was covered under Article 23 of the said agreement. The Assessing Officer, vide order dated July 30, 1987, directed the assessed to deduct tax at source (TDS) at the rate of 30 per cent, before the State making the aforesaid remittance.

4. The learned Commissioner of Income Tax (Appeals) set aside the order of the Assessing Officer and held as under :

"If the remittance is clearly covered by Article 15 of the agreement and if the period of stay of technicians does not exceed 90 days, then the amount is not to be taxed doubly in both the States and as such there is no question of going to the residuary article No. 23. As already pointed out the Tribunal also held that Article 23 did not apply to the facts of this case. Thus its implication also means that such amounts are not to be taxed in both the States and would be exempt because such services are specifically covered by the agreement."

5. The Commissioner of Income Tax (Appeals) referred to Article 15 of the agreement. Article 15 reads as under (see [1986] 160 ITR 25, 34) :

"Article 15 INDEPENDENT PROFESSIONAL SERVICES

1. Income derived by a resident of a Contracting State in respect of professional services or other independent activities of a similar character may be taxed in that State. Such income may also be taxed in the other Contracting State if such services are performed in that other State and if :

(a) he is present in that other State for a period or periods aggregating to 90 days in the relevant fiscal year ; or

(b) he has a fixed base regularly available to him in that other State for the purpose of performing his activities, but only so much of the income as is attributable to that fixed base.

2. The term professional services includes independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, surgeons, lawyers, engineers, architects, dentists and accountants."

6. Admittedly, the Italians, who have been paid fee for technical services, stayed in India for less than 90 days. The Commissioner of Income Tax held the amount of remittance of $ 50,000 is not subject to tax in India and as such no tax at source is required to be deducted from the assessed. The view which has been taken by the Commissioner of Income Tax (Appeals) has been affirmed by the Tribunal by a well reasoned order.

7. The Tribunal correctly observed and relevant portion of the judgment reads as under :

"On a careful consideration of the facts of the case, we are in agreement with the learned Commissioner of Income Tax (Appeals) that the foreign company, Rotomac (SPA), cannot be held to have a permanent establishment and since the period of stay of their technicians in India is not more than three months in each of the two years, in view of the provisions of Article 15 read with Article 5(2)(h) of the DTAA, the said company is not liable to pay tax in India. Incidentally, this view finds support from the Income Tax Appellate Tribunals order dated September 10, 1991 (supra), relied upon by the asses-see. We, Therefore, hold that the assessed was not liable to deduct tax under Section 195(2) of theon the amounts remitted by it to the foreign company in the two years under consideration."

In our considered opinion no interference is called for. The appeal is dismissed.