IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1304 OF 2013 Director of Income Tax, Mumbai .. Appellant. Vs. TUV Bayren (India) Ltd. .. Respondent. Mr. Arvind Pinto for Appellant. Mr. Niraj Sheth i/b Mr.Atul K. Jasani for Respondent. CORAM : S.C. DHARMADHIKARI AND A.K. MENON, JJ. DATED : 20TH APRIL, 2015. P.C. : 1. This appeal by revenue challenges order passed by Income Tax Appellate Tribunal, Mumbai dated 6th July, 2012 reversing orders of Assessing Officer and Commissioner. only argument canvassed before us and based on which all questions are proposed and projected is that Tribunal completely misread and misinterpreted section 9(1)(vii) om of Income Tax Act, 1961 and Article 12(4) of Indo German Double Taxation Avoidance Agreement. B 2. Mr.Pinto submits that services provided are clearly technical or of consultancy in nature. It is not simple certification agency as is projected by assessee. It has specified clients and handles these clients cases. To enable them 1/3 ::: Uploaded on - 27/04/2015 ::: Downloaded on - 03/05/2016 13:07:59 ::: ita1304.13 to obtain certification so that products of such clients are certified to meet with International Quality standards. In rt circumstances Tribunal should not have termed them as not ou covered by statutory provision and fees recovered therefor are thus for technical services. In any event this is not substantial question of law. C 3. Tribunal had before it nature of services h rendered and by assessee. complete record of such ig services indicated that there is certification and internationally acclaimed, namely, ISO. certification is of various standards H ISO 9001/2, ISO 14001, QS 9000 etc. y 4. nature of work is that assessee is approached ba by certain parties for issuance of this standard certificate. process of evaluation in form of audit of activities undertaken om by clients is carried out through audit parties of assessee. Based on report of such audit party, certificate to individual clients/applicants are issued. This is after reviewing B report and several stages of audit work which has been carried out. certificates are issued for specific and certain period. These are neither technical nor managerial nor consultancy services. There is no advice given but insofar as this activity is concerned, record indicates that audit work and 2/3 ::: Uploaded on - 27/04/2015 ::: Downloaded on - 03/05/2016 13:07:59 ::: ita1304.13 certification would not come within realm of fees for technical services. In circumstances, there is nothing in activities rt which could enable revenue to bring them within purview ou of section 9 (1)(vii) and Article 12(4) of Indo German Double Taxation Avoidance Agreement. There is finding of fact and which is rendered after examination of assessee's records and C service and their nature. Having analysed all this, Tribunal concluded that assessee's services are not of h nature falling within statutory provision. In these circumstances, findings of fact ig at paragraph 9 and 10.3 of order under challenge cannot be termed as perverse or vitiated by any error H of law apparent on face of record. It is fairly conceded that once fees are not falling within above provisions, then, y further question and of applying section 44D and Section 115A of ba Income Tax Act, 1961 would not arise. om 5. Question No.5.4 is last question of law. That is stated to be completely covered by judgment of this Court in case of Director of Income Tax (International Taxation) Vs. B NGC Network Asia LLC (2009) 313 ITR Page 187. As result of above discussion, none of questions are substantial questions of law. appeal fails and is dismissed. (A.K. MENON,J.) (S.C. DHARMADHIKARI,J.) 3/3 ::: Uploaded on - 27/04/2015 ::: Downloaded on - 03/05/2016 13:07:59 ::: Director of Income-tax, Mumbai v. TUV Bayren (India) Ltd