J. SUDHAKAR REDDY, A.M.: ORDER All these appeals are filed by Revenue directed against separate but identical orders of CIT(A)-IV, Bangalore. As issues arising out of these appeals are common, for sake of convenience they are heard together and disposed of by way of this common order. 2. Facts in brief : 2 . 1 assessee is private company engaged in business of prospecting and mining for diamonds and other minerals. brief note on activities of this company is narrated below for better understanding of issues that arise in these appeals. 2.2 Exploration for diamonds is 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 .5 to 1 carat per tonne, which is equivalent to .5 to 1 part per million (one carat = .2 gram, or 5 grams to carat). 2 . 3 Diamond exploration is carried out in variety of ways, depending upon location and type of diamond deposit sought. Exploration over large area can be carried out by sampling streams or loam sampling 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 search over hundreds of square kilometers (or miles) seeking economic diamond deposit. manner i n which this exploration is carried out depends upon surface geology and topography of area to be explored. Where there is good stream development, usually in hilly or undulating terrain, main exploration method has been by sampling 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 larger array of KIM including pyrope granet, picrolimenite, chrome diopside and chromite. Diamond is rarely recovered during regional exploration sampling of area. 2.5 In areas where streams are poorly developed, or non-existent, two regional exploration methods can be employed. first is loam sampling and other is geophysical exploration. Loam sampling comprises collection of samples of surface soil, usually about 1 cm. thick surface scrape, where wind action has concentrated heavy minerals into lag layer. Samples can be collected on large, usually square, grids with 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, aircraft flies along lines spaced about 200 to 400 mtrs. apart, depending upon area and survey requirements. data collected along these "flight lines" is then processed by 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 kimberlite pipe. If geophysicist considers that anomaly may have been caused by pipe, then usually more detailed magnetic surveys are done over magnetic "target". 2 . 7 De Beers India Exploration is in business of prospecting of minerals. De Beers has been granted licences (Reconnaissance Permits) by State Governments of Karnataka, Andhra Pradesh and Chattisgarh for mineral reconnaissance activities. Reconnaisance is early stage of exploration. During early stage various techniques are employed like : (i) Collection of steam samples. (ii) Geophysical survey like AMS (Airborne Multispectral Scanner survey). EM survey (Electro Magnetic survey), Mag survey etc. Exploration has various stages like : (i) Early stage initially for period of 3-5 years. (ii) Advanced stage for period of 5-10 years. (iii) Feasibility stage 5-10 years. On average time taken from discovery to production is eight years. 2.8 For purposes of carrying out geophysical survey. De Beers India Minerals (P) Ltd. (hereinafter referred as De Beers ), assessee company entered into agreement with M/s Fugro Elbocon B.V. Netherlands (hereinafter referred to as Fugro ). "Fugro" had team of experts who specialized in performing airborne geophysical services for clients, process data acquired during survey and provide necessary reports. services are engaged to conduct airborne survey for providing high quality, high resolution, geophysical data suitable for selecting probable kimberlite targets. important points that emerge from agreement are as follows : (i) Fugro conducted airborne survey using its specialized equipment. (ii) helicopter for survey was hired by De Beers . (iii) All logistics of survey, such as flight schedule, re-flights, survey lines, control lines, positioning etc. were set by Fugro . (iv) Fugro deputed technical personnel for conducting survey, and (v) data collected from survey was provided to De Beers in particular format which is called Acquisition and Processing Report. AO treated consideration paid to Fugro under agreement as falling within definition of fees for technical services under art. 12 of Indo-Netherlands Double Tax Avoidance Agreement (DTAA) r/w s. 90 of Act. Alternatively, he has also held that payment in question was for development and transfer of technical plan or technical design. Thus, he held that assessee had failed to deduct tax on payments made to Fugro and, hence, treated assessee deductor as assessee in default. He levied tax under s. 201(1) and interest under s. 201(1A) for all three assessment years. Aggrieved assessee carried matter in appeal. 2.9 first appellate authority held that services rendered by Fugro to De Beers and payments made for it are not covered by art. 12(5) of DTAA between India and Netherlands. He held that Fugro has not imparted any technology to De Beers and that they have just used technology and have gone back with same. He also observed that in future if De Beers required geological survey of different area, they will have to engage services of technical expertise like Fugro again. He concluded that no technology has been made available to De Beers by Fugro and, therefore, consideration paid does not fall within definition of art. 12(5) of DTAA between India and Netherlands. 2.10 On issue whether payment was for development and transfer of technical plan or 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 argument relating to ownership data also has merit. Thus, he upheld contention of assessee that no tax was deductible on payments made to Fugro . Aggrieved Revenue is in appeal on following effective grounds : "The learned CIT(A) has failed to appreciate that payment made to 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 art. 12 of DTAA (between India and Netherlands). CIT(A) has erred in holding that only data has been supplied and n o plan or design has been supplied. Further, CIT(A) has held that maps cannot be described as plan or designs. In this regard reliance is placed on decision of Supreme Court in case of Commr. of Customs vs. Parasrampuria Synthetics Ltd. (2002) 253 ITR 274 (SC). learned CIT(A) erred in holding that non-resident company has supplied only raw data. CIT(A) failed to appreciate objective of agreement which is to get suitable data , as per agreement. Further, specially developed equipment is meant to collect and process data towards particular end." 3 . Shri B. Chattaraj, learned Departmental Representative, argued on behalf of Revenue and Shri K.R. Shekar, learned counsel represented assessee. Mr. Chattaraj supported order of AO whereas Mr. K.R. Shekar relied on order of CIT(A). assessee filed paper book consisting of Annexs. 1 to 13. Shri B. Chattaraj submitted that, nature of services rendered are professional services under art. 12 of Indo-Netherlands DTAA and alternatively it was for transfer of technical plan or design and thus, tax should have been deducted at source. Shri K.R. Shekar submitted that payments may be business profits under 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 rival submissions and have perused papers on record as well as case laws cited. 4.1 undisputed fact in this case is that "Fugro" does not have PE in India. It is also not in dispute that payment in question falls under term technical services as defined in s. 9(1)(vii) of IT Act, 1961. It is also not in dispute that s. 90 of IT Act comes into play and that taxability of payment in question is based on applicability of art. 12(5) sub-cl. (b) of DTAA between India and Netherlands. sub-cl. (b) in art. 12(5) of 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 rendering of services of any technical persons of consultancy nature (including provision of services for technical and other), if such services are (sic) : 1......... 2......... 3......... 4.......... 5. For purposes of this article, fees for technical services means payments of any kind to any person in consideration for rendering of any technical or consultancy services (including through provision of services of technical or other personnel) if such services : (a) are ancillary and subsidiary to application or enjoyment of right, property or information for which payment described in para 4 of this article is received; or (b) make available technical knowledge, experience, skill, know-how of process, or development as transferred by technical plan or technical design." (Emphasis, italicized in print, ours) [sic This sub-cl. (b) read as under : "make available technical knowledge, experience, skill, know-how or processes, or consist of development and transfer of technical plan or technical design."] Both parties before us have not disputed fact that Indo- Netherlands DTAA is on same lines as DTAA between India and USA. In fact, protocol to DTAA signed between parties, states that memorandum of understanding between India and USA would apply mutandis mutandis to art. 12 of Indo-Netherlands DTAA (Ref. Notification S.O. 693(E), dt. 30th Aug., 1999) [(1999) 155 CTR (St) 22]. On these facts and circumstances of case, we formulate following question for consideration : (a) Whether on facts and circumstances of case, payments made by assessee company "De Beers" to "Fugro", for services rendered by them can be said to be payment for "fees for technical services" within meaning of art. 12(5)(b) of DTAA between India and Netherlands ? 4.2 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 De Beers . (b) Whether payment to Fugro was for development and transfer of technical plan or technical design to De Beers . legal position on first sub-question is by now well settled. In case of C.E.S.C. Ltd. vs. Dy. CIT (2003) 80 TTJ (Kol)(TM) 806 : (2003) 87 ITD 653 (Kol)(TM), Tribunal, Kolkata C Bench at pp. 675 to 684 at para Nos. 9 to 18 have considered matter at length. example given in memorandum of understanding between India and USA which would apply mutandis mutandis t o case on hand, have been extracted and considered in this decision and learned Third Member concluded as follows : "Para 4(b) of art. 12 refers to technical or consultancy services that make available to person acquiring services technical knowledge, experience, skill, know-how or processes, or consist of development and transfer of technical plan or technical design to such person. (For this purpose person acquiring service shall be deemed to include agent, nominee or transferee of such person). This category is narrower than category described in para 4(a), because it excludes any person acquiring service. Generally speaking, technology will be considered made available when person acquiring service is enabled to apply technology. fact that provision of service may require technical input by person providing service does not per se mean that technical knowledge, skill etc. are made available to person purchasing service, within meaning of para 4(b). Similarly, use of product which embodies technology shall not per se be considered to make technology available." (Emphasis, italicized in print, supplied) At para 17, it was held as follows : "On perusal of memorandum of understanding concerning fee for included services in art. 12 appended to DTAA between India and USA with help of examples, it becomes abundantly clear that technology would be considered made available when person acquiring service is enabled to apply technology. mere fact that provision of service may require technical input by person providing service does not per se mean that technical knowledge, skill, etc. are made available to person purchasing service, within meaning of art. 12, para 4(b) of DTAA between India and U.K." 4.3 In case of Raymond Ltd. vs. Dy. CIT (2003) 80 TTJ (Mumbai) 120 : (a) it was held that mere rendering service is not included unless person utilizing service is able to make use of technical knowledge, etc. by himself in his business or for his own benefit and without recourse to performer by services, in future. (b) There should be transmission of technical knowledge, experience, skill, etc from person rendering services to person utilising same. 4.4 In case of NQA Quality System Registrar Ltd. vs. Dy. CIT (2005) 92 TTJ (Del) 946, Tribunal discussed clause "make available" and held that when same is used, if technology is transferred through 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 case of Meakens & Phyllips vs. Asstt. CIT (International Taxation) (2006) 287 ITR 227 (Mumbai)(AT) [sic McKinsey & Co. Inc. (Phillippines) vs. Asstt. Director of IT (2006) 99 TTJ (Mumbai) 857 : (2006) 284 ITR 227 (Mumbai)(AT)], it was held that when there was no material to suggest that payment was for any services which enable recipients of those services to apply technology itself, it cannot be concluded that consideration paid for such consultancy services was taxable in India under art. 12(4)(b) as included services under DTAA. 4.6 Thus, with these precedents on interpretation of term made available , we examine terms of contract between De Beers and Fugro . following clauses which are relevant are extracted from "the agreement for geophysical survey" between De Beers and Fugro : "(I) General conditions : Clause 1.3 : contractor shall perform and execute all work and services required pursuant to this survey in professional and workmanlike 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 agreement (collectively "information") shall belong exclusively to client and its assigns and contractor shall keep such information strictly confidential. All information recorded in digital and analog form and all products derived from information are property of client. contractor agrees (i) not to divulge any information to any person or organization without written permission of client personnel who are specified by client as appropriate persons to whom contractor may provide information. (II) Objective : objective of survey will be to provide high quality, high resolution geophysical data suitable for selecting probable kimberlite targets. It is understood that 100 mtrs. line spacing data will be used to identify anomalies and position exploration drill holes. integrity of positional (both horizontal and vertical) information is vital. client acknowledges contractor to be expert in all aspects of airborne survey and subsequent data processing. It is thus, accepted that all operations, tests and calibrations will be carefully undertaken to ensure highest possible data quality and to meet or exceed specifications described in this agreement. It is responsibility of contractor to take appropriate action to maintain level of data quality. Furthermore, it is understood that logistical operation of survey (that is flight planning, fuel requirements etc.) is responsibility of contractor unless expressly stated otherwise in this contract. client will provide logistical support where applicable and when mutually agreed upon in writing with contractor (either within contract or as addendum to it). (III) Final products : Within 30 days following delivery of preliminary products following products will be made available to client : Final Products Media Quantity All analog flight records Paper 1 Flight logs (flight to be included in Digital 1 digital form along with final report) Final Data Archive as specified in Digital 5 Appendix 12.2 Black and White contour maps of magnetics as specified in Appendix Paper 5 12.3 Black and White contour maps of themed frequency co-planner resistively Paper 5 as specified in Appendix 12.3 Final report (includes as Report appendices, tests and calibration report, 5 Digital logistics report) It is imperative that final data be fully checked and validated before shipment to client. client will return all data without further, QC procedures if errors are found due to improper checking by contractor. IV. Payment schedule : 10.0 % of On agreement signing estimated costs. On mobilization Mobilisation cost 30 % of estimated On first successful flight cost On completion of flying and accepting 30 % of estimated digital data cost Outstanding On delivery of final products balance" 4.7 perusal of these clauses show that : (a) consideration paid under agreement to Fugro was essential for providing specific data for which Fugro was required to conduct airborne survey. (b) technicians from Fugro have conducted survey, as per survey specifications by flying in helicopter hired by De Beers. (c) specialized equipment, technicians, technical knowledge and other intangibles were always owned by Fugro and have never been transferred or imparted to De Beers. De Beers is not in position to utilize specialized equipment or technical knowledge. (d) All logistics of 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 information and data on any site on which survey was performed i n accordance with agreement, exclusively belonged to De Beers and Fugro is bound by confidentiality contract clause. All information recorded in digital or analog formats and all products derived from information are property of De Beers to exclusion of Fugro . 4.8 On application of these facts to propositions already culled out above, we have no hesitation whatsoever, in upholding findings of first appellate authority that payment in question for services rendered would not fall within term fees for technical services under art. 12(5) of India and Netherlands DTAA. Fugro has surveyed, collected and processed data on behalf of De Beers. There is no doubt that Fugro performed services using substantial knowledge and expertise but such technical experience, skill or knowledge has not been made available to De Beers . 4 . 9 As already stated, as per protocol signed between India and Netherlands, memorandum of understanding entered into between India and U S would apply mutandis mutandis to art. 12 of Indo-Netherlands DTAA. Example 7 given in memorandum of understanding between India and USA is relevant and is extracted below for ready reference : "Example 7 Facts : Indian vegetable oil manufacturing firm has mastered science of producing cholesterol free oil and wishes to market product world-wide. It hires American marketing consultancy firm to do computer stimulation of world market for such oil and to advice it on marketing strategies. Are fees paid to US company for included services ? Analysis : fees would not be for included services. American company is providing consultancy service which involves use of substantial technical skill and expertise. It is not, however, making available to Indian company any technical experience, knowledge or skill, etc. nor is it transferring technical plan or design. What is transferred to Indian company through service contract is commercial information. fact that technical skills were required by performer of service in order to perform commercial information service does not make service technical service within meaning of para 4(b)." 4.10 Mr. K.R. Shekar has also quoted example during course of his arguments which we feel is relevant and applicable to this case. When patient visits doctor and doctor advises him to undergo various tests. patient does so. In course of performing scan tests, scan centre used certain equipment. scan centre has actually provided service. patient is interested in end result i.e. report of test and not in technical know- how that is used in scan report. Such technical knowledge is not passed on to patient. If patient requires scan report again, he would require to get 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 report. 4.11 Thus we concur with findings of first appellate authority and answer first sub-question in favour of assessee and against Revenue by holding that payment made for fees for technical services does not fall within ken of art. 12(5)(b) of DTAA between India and Netherlands, for reason that Fugro has not made available technical knowledge, experience, skill, know-how or process to De Beers while providing service. Thus this question is answered in negative in favour of assessee and against Revenue. 5. Now we come to second question. Before we go into issue, we dwell on meaning of words design, plan and technical : 5.1 term Plan has been defined in Advanced Law Lexicon as : "A plan is design, delineation, or projection on plane surface of structure, which is reduced in size, relative position of which, and proportions, being preserved. plan is draft or form of representation of horizontal section of anything, as of building or machinery. Its synonyms are draft , delineation , sketch and design ." Design : term design means features of shape, configuration, pattern or ornament applied to any article and appealing to and not dictated solely by function article has to perform, copyright may be obtained on registration for new and original designs Great Encyclopaedic Dictionary, Vol. III p. 1168. 5 . 2 Supreme Court in case of Commr. of Custom vs. Parasrampuria Synthetics Ltd. (2002) 253 ITR 274 (SC), has analysed meaning of plan and design as follows : "Let us first analyse as to true grammatical meaning of words included in serial No. 15 to with : plan, drawings and designs . Plan in common acceptation means drawing or diagram made by projections on horizontal plane . Law Lexicon attributes it to be design or sketch and is draft or form of representation and its synonyms are sketch and design. Corpus Juris Secundum (Vol. 70) attributes meaning in similar vein as draft or form of representation of horizontal section of anything, as of machinery; map ... scheme; project; also method of action, procedure or arrangement . Expression, viz., design in popular parlance is used as synonym with plan and includes sketch. Some times it has also been held to be synonymous with figure . expression design has within its ambit many facets including criminal design which connotes evil desire. Obviously, exemption notification can not possibly mean and imply meaning which can be attributed to be evil one. three words plan, drawing and design however, convey more or less common attribution and identical meaning...." 5.3 term "design" in Advanced Law Lexicon has been defined to mean : "Design means only 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 financial article appeal to and are judged solely by eye; but does not include any mode or principle of construction or anything which is in substance mere mechanical, and does not include any trademark as defined in cl. (v) of sub-s. (1) of s. 2 of Trade and Merchandise Marks Act, 1958, or propriety mark as defined in s. 479 of Indian Penal Code." plan or scheme conceived in mind of something to be done; scheme formed to detriment of another; drawing or sketch. "The term technical in broader sense means belonging or relating to art or arts; appropriate or peculiar to, or characteristic of particular art, science, profession or occupation . But narrow meaning is also of or pertaining to mechanical arts and applied sciences ." 5.4 term "technical" has been defined in Advanced Law Lexicon to mean : "Technical : Peculiar to particular art, science or craft (as) technical skill; technical school or education. Technical work is phrase of substantially wider import than scientific work . No doubt all scientific work may be said to be technical , but converse by no means necessarily applies." 5.5 In present case Fugro compiles data and process them for error correction and deliver it to De Beers in computer readable media. Using raw input data provided by Fugro , recipient assessee i.e. De Beers using further process in software technology (which are not owned or provided by Fugro ) generates report to determine probable targets. Thus, payments to Fugro cannot be considered to payments for technical, plan and design much less, for development and transfer of them. Fugro is engaged in providing services relating to collection and processing of data which always belonged to De Beers . purpose of agreement is, for provision of services and not for supply or transfer of technical plan or design. reports and maps are only additional mode of report of data and cannot be construed as technical plan or technical design. 5 . 6 payments made to Fugro cannot be considered as fees for technical services as such payments are not in consideration for development and transfer of technical plan and technical design. 5.7 Meanings of words development and transfer : 5.7.1 term "development" has been defined in Advanced Law Lexicon to mean : "The act, process or result of developing or growing or causing to grow; state of being developed happening. word transfer means passage of right from one individual to another. According to 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 s. 2(47) of Act, term "transfer", in relation to capital asset, includes : (i) sale, exchange or relinquishment of asset; or (ii) extinguishment of any rights therein; or (iii) compulsory acquisition thereof under any law; or (iv) ...... In case of Sunil Siddharthbhai vs. CIT (1985) 49 CTR (SC) 172 : (1985) 156 ITR 509 (SC), Hon ble Supreme Court held that : "In general sense, expression transfer of property connotes passing of rights in property from one person to another. In one case, there may be passing of entire bundle of rights from transferor to transferee." Under Transfer of Property Act, 1882, term "transfer" means any act by which living person conveys property, in present or in future, to one or act by which 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 art. 12(5)(b) of India and Netherlands DTAA reads "make available technical knowledge, experience, skill, know-how or processes or consist of development and transfer of technical plan or technical design". (Emphasis, italicized in print, own) 5.9 word used in above definition is "and" and not "or". Where certain provisions are separated by use of conjunction and , those provisions are to be read cojointly. Where intention of legislature is clear, and may be read as or even though result is less favourable to subject. use of conjunctive and disconjunctive or , one for other, is permissible where liberal interpretation would be intention of legislature or object of act. In present context words development and transfer should be read cojointly. 5.10 As per para 1.1.5 of agreement between De Beers and Fugro , ownership of all information and data was always with De Beers and Fugro is bound by confidential clause. When ownership of data is always with De Beers , there cannot be transfer of property from Fugro to De Beers . Fugro has not developed or transferred any technical plan or design to De Beers so as to attract art. 12(5)(b) of India and Netherlands DTAA. Thus on this issue also we agree with findings of first appellate authority. Thus, we answer second question is in negative, in favour of assessee and against Revenue. In result all appeals of Revenue are dismissed. *** INCOME TAX OFFICER (INTERNATIONAL TAXATION) v. DE BEERS INDIA MINERALS (P) LTD.