Per J. Sudhakar Reddy, Accountant Member. - All these appeals are filed by the revenue directed against separate but identical orders of Commissioner of Income-tax (Appeals)-IV, Bangalore. As the issues arising out of these appeals are common, for the sake of convenience they are heard together and disposed off by way of this common order.
2. Facts in brief:
2.1 The assessee is a private company engaged in the business of prospecting and mining for diamonds and other minerals. A brief note on the activities of this company are narrated below for better understanding of the issues that arise in these appeals.
2.2 Exploration for diamonds is a challenging task as it amounts to "looking for needles in hay stacks". Diamonds occur in very low concentrations, even in economic diamond mines. Mining grades of diamond pipes are usually about 0.5 to 1 carat per tonne, which is equivalent to 0.5 to 1 part per million (one carat = 0.2 gram, or 5 grams to the carat)
2.3 Diamond exploration is carried out in a variety of ways, depending upon the location and the type of diamond deposit sought. Exploration over a large area can be carried out by sampling the streams or loam sampling the surface soils looking for indicator minerals or by geophysical methods where surface sampling would not be effective exploration tool or would be too expensive.
2.4 Regional diamond exploration entails the search over hundreds of square kilometers (or miles) seeking an economic diamond deposit. The manner in which this exploration is carried out depends upon the surface geology and topography of the area to be explored.Where there is good stream development, usually in hilly or undulating terrain, the main exploration method has been by sampling the stream sediments for "Kimberlitic Indicator Minerals" (KIM). These KIM are special minerals that occur in kimberlite and lamprolite and due to their high specific gravity, tend to be concentrated in "trap sites" along with other heavy minerals (e.g. gold, tin, sapphires). Stream sampling can yield a larger array of KIM including pyrope granet, picrolimenite, chrome diopside and chromite. Diamond is rarely recovered during the regional exploration sampling of an area.
2.5 In areas where the streams are poorly developed, or non-existent, two regional exploration methods can be employed. The first is loam sampling and the other is geophysical exploration. Loam sampling comprises the collection of samples of the surface soil, usually about a 1 cm thick surface scrape, where wind action has concentrated the heavy minerals into a lag layer. Samples can be collected on large, usually square, grids with a sample spacing of 1, 2, 3 or 4 km. between samples.
2.6 Geophysical exploration in regional diamond exploration has mainly been by airborne magnetic (aeromagnetic) and Electro Magnetic (aero EM) surveys but additional technologies, such as airborne gravity meters are also beginning to be used. In aeromagnetic surveys, an aircraft flies along lines spaced about 200 to 400 m apart, depending upon the area and the survey requirements. The data collected along these "flight lines" is then processed by a geophysicist and "anomalies" are identified. If these magnetic or EM anomalies cannot be explained by obvious surface features, like wind pumps or buildings, then these anomalies will be examined in more detail to see if they may represent a kimberlite pipe. If the geophysicist considers that the anomaly may have been caused by a pipe, then usually more detailed magnetic surveys are done over the magnetic "target".
2.7DeBeersIndia Exploration is in the business of prospecting of minerals. DeBeers has been granted licences (Reconnaissance Permits) by the State Government of Karnataka, Andhra Pradesh and Chhattisgarh for mineral reconnaissance activities.
Reconnaissance is the early stage of exploration. During the early stage various techniques are employed like:
(i)
Collection of Steam Samples
(ii)
Geophysical Survey like the AMS (Airborne Multispectral Scanner Survey), EM Survey (Electro Magnetic Survey), Mag Survey, etc.
Exploration has various stages like:
(i)
The Early Stage - initially for a period of 3-5 years.
(ii)
Advanced stage for a period of 5-10 years.
(iii)
Feasibility stage 5-10 years.
On an average the time taken from a discovery to production is eight years.
2.8 For the purposes of carrying out geophysical survey, DeBeersIndiaMinerals Pvt. Ltd. (hereinafter referred as 'DeBeers'), the assessee-company entered into an agreement with M/s. Fugro Elbocon B.V. Netherlands (hereinafter referred to as 'Fugro'). "Fugro" had a team of experts who specialized in performing air borne geophysical services for clients, process the data acquired during the survey and provide necessary reports. The services are engaged to conduct the air borne survey for providing high quality, high resolution, geophysical data suitable for selecting probable kimberlite targets. The important points that emerge from the agreement are as follows :
(i)
'Fugro' conducted the airborne survey using its specialized equipment,
(ii)
The helicopter for the survey was hired by 'DeBeers',
(iii)
All the logistics of the survey, such as flight schedule, re-flights survey lines, control lines, positioning etc. were set by 'Fugro',
(iv)
'Fugro' deputed technical personnel for conducting the survey, and
(v)
The data collected from the survey was provided to 'DeBeers' in a particular format which is called the Acquisition and Processing Report.
The Assessing Officer treated the consideration paid to Fugro under the agreement as falling within the definition of 'fees for technical services' under the Article 12 of the Indo-Netherlands Double Tax Avoidance Agreement (DTAA) read with section 90 of the. Alternatively, he has also held that the payment in question was for development and transfer of a technical plan or technical design. Thus he held that the assessee had failed to deduct tax on the payments made to 'Fugro' and hence treated the assessee deductor as an assessee in default. He levied tax under section 201(1) and interest under section 201(1A) for all the three assessment years. Aggrieved the assessee carried the matter in appeal.
2.9 The first appellate authority held that the services rendered by 'Fugro' to DeBeers and the payments made for it are not covered by Article 12(5) of the DTAA between India and Netherlands. He held that 'Fugro' is not imparted any technology to DeBeers and that they have just used the technology and have gone back with the same. He also observed that in future if 'DeBeers' required geological survey of a different area, they will have to engage the services of technical expertise like 'Fugro' again. He concluded that no technology has been made available to 'DeBeers' by 'Fugro' and, therefore, the consideration paid does not fall within the definition of Article 12(5) of DTAA between India and Netherlands.
2.10 On the issue whether the payment was for the development and transfer of a technical plan or a technical design, learned first appellate authority held that it cannot be described as plan or design and it was only raw data that was supplied. He also observed that the argument relating to the ownership data also has merit. Thus he upheld the contention of the assessee that no tax was deductible on the payments made to 'Fugro'. Aggrieved the revenue is in appeal on the following effective grounds :
"The learned CIT(A) has failed to appreciate that the payment made to the non-resident towards conducting airborne surveys for providing high quality, high resolution geophysical data suitable for selecting probable kimberlite targets, is income liable to be taxed as per article 12 of the DTAA (between India and the Netherlands).
The CIT(A) has erred in holding that only the data has been supplied and no plan or design has been supplied. Further, the CIT(A) has held that Maps cannot be described as plan or designs. In this regard reliance is placed on a decision of Supreme Court in 253 ITR 274 [LQ/SC/2001/1900] in the case of Commissioner of Customv.Parasrampuria Synthetics Ltd.
The learned CIT(A) erred in holding that the non-resident company has supplied only raw data. The CIT(A) failed to appreciate the objective of the agreement which is to get 'suitable data', as per the agreement. Further, the specially developed equipment is meant to collect and process the data towards a particular end."
3. Shri B. Chattaraj, learned Departmental Representative argued on behalf of revenue and Shri K.R. Shekar, learned counsel represented the assessee. Mr. Chattaraj supported the order of the Assessing Officer whereas Mr. K.R. Shekar relied on the order of the CIT(A). The assessee filed a paper book consisting of Annexures 1 to 13. Shri B. Chattaraj submitted that, the nature of services rendered are professional services under article 12 of the Indo-Netherlands DTAA and alternatively it was for the transfer of a technical plan or design and thus tax should have been deducted at source. Shri K.R. Shekar submitted that the payments may be business profits under the DTAA but not payments of fees for technical services as contemplated under DTAA. Both parties argued at length in support of their respective contentions.
4. We have carefully considered the rival submissions and have perused the papers on record as well as the case laws cited.
4.1 The undisputed fact in this case is that the "Fugro" does not have a permanent establishment in India. It is also not in dispute that the payment in question falls under the term 'technical services' as defined in section 9(1)(vii) of the Income-tax Act, 1961. It is also not in dispute that section 90 of the Income-tax Act comes into play and that the taxability of the payment in question is based on the applicability of article 12(5), sub-clause (b) of the DTAA between India and Netherlands. The sub-clause (b) in article 12(5) of the DTAA which is relevant is extracted below :
"Article 12 : Royalties and Fees for Technical Services : Payments of any account made to any person in consideration to the rendering of services of any technical persons of consultancy nature (including the provision of services for technical and other), if such services are —
1.to 4. **
**
**
5.For purposes of this Article, '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)
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 of process, or development as transferred by a technical plan or a technical design." [Emphasis supplied]
Both the parties before us have not disputed the fact that the Indo-Netherlands DTAA are on the same lines as the DTAA between India and USA. In fact, the protocol to the DTAA signed between the parties, States that the memorandum of understanding between India and USA would apply mutatis mutandis to article 12 of the Indo-Netherlands DTAA (Ref. Notification S.O. 693(E) Dated 30-8-1999).
On these facts and circumstances of the case, we formulate the following question for consideration :
(a)
Whether on the facts and circumstances of the case, the payments made by the assessee-company "DeBeers" to "Fugro", for services rendered by them can be said to be a payment for "fees for technical services" within the meaning of article 12(5)(b) of the DTAA between India and Netherlands
4.2 The main question can be, for convenience sub-divided as follows :
(a)
Whether 'Fugro' has made available technical knowledge, experience, skill, know-how or process to 'DeBeers'.
(b)
Whether payment to 'Fugro' was for the development and transfer of a technical plan or technical design to 'DeBeers'.
The legal position on the first sub-question is by now well settled. In the case of C.E.S.C. Ltd. v. Dy. CIT [2003] 87 ITD 653 [LQ/ITAT/2003/282] , Income-tax Appellate Tribunal, the Kolkata 'C' Bench at pages 675 to 684 at paragraph Nos. 9 to 18 have considered the matter at length. The example given in the Memorandum of Understanding between India and USA which would apply mutadis mutandis to the case on hand, have been extracted and considered in this decision and the learned 3rd Member concluded as follows :
"Paragraph 4(b) of Article 12 refers to technical or consultancy services that make available to the person acquiring the services technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or technical design to such person. (For this purpose the person acquiring the service shall be deemed to include an agent, nominee or transferee of such person). This category is narrower than the category described in paragraph 4(a) because it excludes any person acquiring the service. Generally speaking, technology will be considered made available when the person acquiring the service is enabled to apply the technology. The fact that the provision of the service may require technical input by the person providing the service does not per se mean that technical knowledge, skill etc. are made available to the person purchasing the service, within the meaning of paragraph 4(b). Similarly the use of a product which embodies technology shall not per se be considered to make the technology available." [Emphasis supplied]
At para 17, it was held as follows :
"On perusal of Memorandum of Understanding concerning 'fee for included services' in article 12 appended to the DTAA between India and USA with the help of the examples, it becomes abundantly clear that the technology would be considered made available when the person acquiring the service is enabled to apply the technology. The mere fact that the provision of the service may require technical input by the person providing the service does not per se mean that technical knowledge, skill, etc. are made available to the person purchasing the service, within the meaning of article 12, para 4(b) of DTAA between India and U.K."
4.3 In the case of Raymond Ltd. v. Dy. CIT [2003] 86 ITD 791 (Mum.)—
(a)
It was held that mere rendering a service is not included unless the person utilizing the service is able to make use of technical knowledge, etc., by himself in his business or for his own benefit and without recourse to the performer by the services, in future.
(b)
There should be a transmission of technical knowledge, experience, skill, etc. from the person rendering the services to the person utilising the same.
4.4 In the case of NQA Quality Systems Registrar Ltd. v. Dy. CIT [2005] 2 SOT 249 (Delhi), the Tribunal discussed the clause "make available" and held that when the same is used, if technology is transferred through the technical service then alone it is taxable. Using technical input in order to provide consultancy service will not amount to making available technical knowledge, skill, expertise or know-how.
4.5 In the case of McKinsey & Co., Inc. (Philippines) v. Asstt. Director of Income-tax [2006] 99 ITD 549 (Mum.) (SMC), it was held that when there was no material to suggest that the payment was for any services which enable the recipients of those services to apply the technology itself, it cannot be concluded that the consideration paid for such consultancy services was taxable in India under article 12(4)(b) as included services under the DTAA.
4.6 Thus with these precedents on the interpretation of the term 'made available', we examine the terms of contract between 'DeBeers' and 'Fugro'. The following clauses which are relevant are extracted from "The Agreement for Geophysical Survey" between 'DeBeers' and 'Fugro' :
I.
General conditions:
Clause 1.3 : The Contractor shall perform and execute all works and services required pursuant to this survey in a professional and work manlike manner, and in compliance with all applicable laws, regulations, Acts and notices of any Federal, Provincial, territorial or local Government or any agency thereof.
Clause 1.15 : All information and data to any site on which any work or services are performed under the Agreement (collectively "information") shall belong exclusively to the Client and its assigns and the contractor shall keep such information strictly confidential. All information recorded in digital and analog form and all products derived from information are the property of the Client. The Contractor agrees (i) not to divulge any information to any person or organization without the written permission of the Client personnel who are specified by the Client as appropriate persons to whom the Contractor may provide information.
II.
Objective :
The objective of the survey will be to provide high quality, high-resolution geophysical data suitable for selecting probable kimberlite targets.
It is understood that the 100m line spacing data will be used to identify anomalies and position exploration drill holes. The integrity of the positional (both horizontal and vertical) information is vital.
The Client acknowledges the Contractor to be an expert in all aspects of the airborne survey and subsequent data processing. It is thus accepted that all the operations, tests and calibrations will be carefully undertaken to ensure the highest possible data quality and to meet or exceed the specifications described in this Agreement. It is the responsibility of the Contractor to take the appropriate action to maintain the level of data quality.
Furthermore, it is understood that the logistical operation of the survey (that is flight planning, fuel requirements etc.) is the responsibility of the Contractor unless expressly stated otherwise in this Contract. The Client will provide logistical support where applicable and when mutually agreed upon in writing with the contractor (either within the contract or as an addendum to it).
III.
Final Products:
Within 30 days following delivery of preliminary products the following products will be made available to the Client:
Final Products
Media
Quantity
All analog flight records
Paper
1
Flight logs (Flight to be included in digital form along with final report)
Digital
1
Final Data Archive as specified in Appendix 12.2
Digital
5
Black and White Contour maps of magnetics as specified in Appendix 12.3
Paper
5
Black and White Contour maps of themed frequency co-planner resistively as specified in Appendix 12.3
Paper
5
Final report (includes as appendices, Tests and Calibration Report, Logistics Report)
Report Digital
5
It is imperative that the final data be fully checked and validated before shipment to the Client. The Client will return all data without further QC procedures if errors are found due to improper checking by the Contractor.
IV. Payment Schedule:
On Agreement Signing
10.0 per cent of estimated Costs
On mobilization
Mobilisation cost
On first successful flight
30 per cent of estimated cost
On completion of flying and accepting the digital data
30 per cent of estimated cost
On delivery of final products
Outstanding balance
4.7 A perusal of these clauses show that—
(a)
The consideration paid under the agreement to 'Fugro' was essential for providing specific data for which 'Fugro' was required to conduct the air-borne survey.
(b)
The technicians from Fugro have conducted the survey, as per the survey specifications by flying on a helicopter hired by DeBeers.
(c)
The specialized equipment, technicians, technical knowledge and other intangibles were always owned by Fugro and have never been transferred or imparted to DeBeers. DeBeers is not in a position to utilize the specialized equipment or technical knowledge.
(d)
All the logistics of the survey such as flight schedule, re-flights, base stations, survey lines, contour lines, positioning etc. was set by Fugro according to its own technical expertise.
(e)
All the information and data on any site on which survey was performed in accordance with the agreement, exclusively belonged to 'DeBeers' and 'Fugro' is bound by confidentiality contract clause. All information recorded in digital or analog formats and all products derived from information are the property of 'DeBeers' to the exclusion of 'Fugro'.
4.8 On an application of these facts to the propositions already culled out above, we have no hesitation whatsoever, in upholding the findings of the first appellate authority that the payment in question for the services rendered would not fall within the term 'fees for technical services' under article 12(5) of the India and Netherlands DTAA. 'Fugro' has surveyed, collected and processed the data on behalf of DeBeers. There is no doubt that 'Fugro' performed the services using substantial knowledge and expertise but such technical experience, skill or knowledge has not been made available to 'DeBeers'.
4.9 As already stated, as per the protocol signed between India and Netherlands, the Memorandum of Understanding entered into between India and USA would apply mutatis mutandis to article 12 of Indo-Netherlands DTAA. Example 7 given in the Memorandum of Understanding between India and USA is relevant and is extracted below for ready reference :
Example 7
Facts:
The Indian vegetable oil manufacturing firm has mastered the science of producing cholesterol-free oil and wishes to market the product world-wide. It hires an American Marketing consulting firm to do a computer stimulation of the world market for such oil and to advice it on marketing strategies. Are the fees paid to the US company for included services
Analysis:
The fees would not be for included services. The American company is providing a consultancy service which involves the use of substantial technical skill and expertise. It is not, however, making available to the Indian Company any technical experience, knowledge or skill etc. Nor is it transferring a technical plan or design. What is transferred to the Indian company through the service contract is commercial information. The fact that technical skills were required by the performer of the service in order to perform the commercial information service does not make the service a technical service within the meaning of paragraph 4(b).
4.10 Mr. K.R. Shekar has also quoted an example during the course of his arguments which we feel is relevant and applicable to this case. When a patient visits a Doctor and the Doctor advises him to undergo various tests. The patient does so. In the course of performing the scan tests, the scan center used certain equipment. The scan center is actually provided the service. The patient is interested in the end result, i.e., report of the test and not in the technical know-how that is used in the scan report. Such technical knowledge is not passed on to the patient. If the patient requires the scan report again, he would require to get the report done once again and he cannot do it by himself. Technical skill, knowledge, know-how or experience is not passed on, though it is utilized in preparing the report.
4.11 Thus we concur with the findings of the first appellate authority and answer the first sub-question in favour of the assessee and against the revenue by holding that the payment made for 'fees for technical services' does not fall within the ken of article 12(5)(b) of DTAA between India and Netherlands, for the reason that 'Fugro' has not made available technical knowledge, experience, skill, know-how or process to 'DeBeers' while providing the service. Thus, this question is answered in the negative in favour of the assessee and against the revenue.
5. Now we come to the second question. Before we go into the issue, we dwell on the meaning of the words 'design, plan and technical':
5.1 The term 'Plan' has been defined in Advanced Law Lexicon as:
"A plan is a design, a delineation, or projection on a plane surface of a structure, which is reduced in size, the relative position of which, and the proportions, being preserved.
A plan is a draft or form of representation of a horizontal section of anything, as of building or machinery. Its synonyms are 'draft', 'delineation', 'sketch' and 'design'."
Design:
The term 'design' means 'features of shape, configuration, pattern or ornament applied to any article and appealing to and not dictated solely by the function the article has to perform, 'copyright may be obtained on registration for new and original designs' - Great Encyclopaedic Dictionary, Vol. III, page 1168.
5.2 The Supreme Court in the case of Commissioner of Customs v. Parasrampuria Synthetics Ltd. [2002] 253 ITR 274 [LQ/SC/2001/1900] , has analysed the meaning of plan and design as follows:
"Let us first analyse as to the true grammatical meaning of the words included in serial No. 15 to wit: 'plan, drawings and designs', 'plan' in common acceptation means 'a drawing or diagram made by projections on horizontal plane'. The Law Lexicon attributes it to be a design or a sketch and is a draft or form of representation and its synonyms are sketch and design. Corpus Juris Secundum (Vol. 70) attributes a meaning in similar vein as 'a draft or form of representation of a horizontal section of anything, as of machinery; a map ... a scheme; a project; also a method of action, procedure or arrangement'. Expression, viz., 'design' in popular parlance is used as a synonym with plan and includes a sketch. Some times it has also been held to be synonymous with 'figure'. The expression 'design' has within its ambit many facets including a criminal design which connotes an evil desire. Obviously the exemption notification can-not possible mean and imply a meaning which can be attributed to be an evil one.
The three words 'plan, drawing and design' however, convey more or less a common attribution and identical meaning...."
5.3 The term "design" in the Advanced Law Lexicon has been defined to mean:
"Design means only the features of shape, configuration, pattern or ornament applied to any article by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the financial article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical, and does not include any trademark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958, or propriety mark as defined in section 479 of the Indian Penal Code."
A plan or scheme conceived in the mind of something to be done; a scheme formed to the detriment of another; a drawing or sketch.
"The term 'technical' in a broader sense means 'belonging or relating to an art or arts; appropriate or peculiar to, or characteristic of a particular art, science, profession, or occupation'. But the narrow meaning is 'also of or pertaining to the mechanical arts and applied sciences'."
5.4 The term "Technical" has been defined in the Advanced Law Lexicon to mean :
Technical: Peculiar to a particular art, science or craft (as) technical skill; technical school or education.
"'Technical Work' is a phrase of substantially wider import than 'scientific work'. No doubt all scientific work may be said to be 'technical', but the converse by no means necessarily applies."
5.5 In the present case 'Fugro' compiles the data and process them for error correction and deliver it to DeBeers in a computer readable media. Using the raw input data provided by 'Fugro', the recipient assessee, i.e.,DeBeers using further process in software technology (which are not owned or provided by 'Fugro') generates a report to determine probable targets. Thus the payments to 'Fugro' cannot be considered to the payments for technical, plan and design much less, for the development and transfer of them. 'Fugro' is engaged in providing services relating to collection and processing of data which always belonged to 'DeBeers'. The purpose of agreement is, for provision of services and not for supply or transfer of technical plan or design. The reports and maps are only an additional mode of report of data and cannot be construed as technical plan or technical design.
5.6 The payments made to 'Fugro' cannot be considered as 'fees for technical services' as such payments are not in consideration for the development and transfer of technical plan and technical design.
5.7 Meanings of the words 'development' and 'transfer'—
5.7-1 The term "development" has been defined in the Advanced Law Lexicon to mean :
"The act, process or result of developing or growing or causing to grow; the state of being developed" happening. The word 'transfer' means the passage of a right from one individual to another. According to the ordinary dictionary meaning as appearing in Murrays' Oxford Dictionary, Volume II p.257 transfer means "to convey or make over title, right or property by deed or legal process."
5.7-2 Under section 2(47) of the Act, the term "transfer", in relation to a capital asset, includes:
"(i)
the sale, exchange or relinquishment of the asset; or
(ii)
the extinguishment of any rights therein; or
(iii)
the compulsory acquisition thereof under any law; or
(iv) **
**
**"
In the case of Sunil Siddharthbhai v. CIT [1985] 156 ITR 509 [LQ/SC/1985/307] , the Hon'ble Supreme Court held that:
"In the general sense, the expression 'transfer of property' connotes the passing of rights in property from one person to another. In one case, there may be a passing of the entire bundle of rights from the transferor to the transferee."
Under the Transfer of Property Act, 1882, the term "transfer" means any act by which a living person conveys property, in present or in future, to one or more living persons, or to himself and one or more other living persons; and "to transfer property" is to perform such act.
5.8 It may be noted that article 12(5)(b) of the India - Netherlands DTAA reads "make available technical knowledge, experience, skill, know-how or processes or consist of the development and transfer of a technical plan or technical design". [Emphasis supplied]
5.9 The word used in the above definition is "and" and not "or". Where certain provisions are separated by the use of conjunction 'and', those provisions are to be read cojointly. Where the intention of the Legislature is clear, 'and' may be read as 'or' even though the result is less favourable to the subject. The use of 'conjunctive' and the 'disconjunctive' or, one for the other, is permissible where liberal interpretation would be the intention of the Legislature or the object of the act. In the present context the words 'development' and 'transfer' should be read cojointly.
5.10 As per para 1.1.5 of Agreement between 'DeBeers' and 'Fugro', the ownership of all information and data was always with 'DeBeers' and 'Fugro' is bound by confidential clause. When the ownership of data is always with 'DeBeers', there cannot be transfer of property from 'Fugro' to 'DeBeers'. 'Fugro' has not developed or transferred any technical plan or design to 'DeBeers' so as to attract article 12(5)(b ) of the India and Netherlands DTAA. Thus on this issue also we agree with the findings of the first appellate authority. Thus we answer the second question is in the negative, in favour of the assessee and against the revenue.
In the result, all the appeals of revenue are dismissed.
279/108
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