Income Tax Appellate Tribunal - Ahmedabad
Shell International B.V., Ahmedabad vs Department Of Income Tax on 10 May, 2013
IN THE INCOME TAX APPELLATE TRIBUNAL
"C" BENCH, AHMEDABAD
BEFORE SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER
AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER
ITA No. 1150/Ahd/2007, 3950/Ahd/2008 & 52/Ahd/2009
A.Y: 2003-04 & 2005-06
Shell International B.V. Income Tax Officer,
Carel Van Bylandtlaan, Ward 1(4),
30, Den Haag, Ahmedabad.
The Netherlands, Vs
C/o S.R. Batliboi & Co.,
2nd Floor, Shivalika
saam, Nr. C.A.
Vidhalaya Ambawadi,
Ahmedabad.
(Assessee) (Revenue)
Revenue by : S/Shri D.C. Patwari & V.K.
Gupta, CIT-D.R.
Assessee(s) by : Shri Dhinal Shah, A.R.
सुनवाई कȧ तारȣख/
/ Date of Hearing : 10/05/2013
घोषणा कȧ तारȣख /Date of Pronouncement: 7/08/2013
आदे श/O R D E R
PER SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER :
These three appeals are connected with each other hence consolidated and hereby decided by this common order hereunder:
A) ITA 1150/A/07 ( A.Y. 2003-04 ) :
This is an appeal filed by the assessee arising from the order of learned CIT(A)-V, Ahmedabad dated 26.12.2006 and the grounds raised are hereby decided as follows:
Grounds of appeal are reproduced below :-
"1. The learned Commissioner of Income Tax (Appeals)-V, Ahmedabad (hereinafter referred to as learned CI has erred on facts and in law in holding that amounts received by the Appellant for ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04 -2- rendering support services under the Support Service Agreement ('SSA') qualify as 'Fees for technical services' under Article 12 of the Double Taxation Avoidance Agreement between India and Netherlands ('India-Netherlands Tax Treaty').
2. Without prejudice to the above, the learned CIT(A) has erred on facts and in law in taxing the reimbursement of expenses as 'Fees for technical services' under Article 12 of the India-Netherlands Tax Treaty.
3. Without prejudice to the above, the learned CIT(A) has erred on facts and in law in considering the higher of the amounts mentioned in the transfer pricing certificate (i.e. Form 3CEB) of the Appellant and the information as provided by Hazira Port Private Limited, Hazira LNG Private Limited and Shell Hazira Gas Private Limited (presently known as Hazira Gas Private Limited) under Section 133(6) of the Act as the total receipts of the Appellant (i.e. 116,849,305)."
2) Facts in brief as emerged from the corresponding assessment order dated 29.03.2006 passed u/s 143(3) were that the appellant is a Foreign Company, registered in Netherland, and in the nature of business , stated to be, " to perform accomplishment for the use of carrying on one or more branches of the Petroleum , Natural Gas , Coal and Chemical Industry ". It has also been noted by the A.O. that ' Nil ' income return was filed. There is a reference of TDS certificate in which the total receipts were shown at Rs. 6,16,72,380/- and the purpose to mention is that one of the ground is about the correct quantum of the receipts. The A.O. had collected information U/s 133(6) from:
(i) Hazira LNG Pvt. Ltd.( in short HLPL)
(ii) Hazira Port Pvt. Ltd. ( in short HPPL )
(iii) Shell Hazira Gas Pvt. Ltd. ( in short SHGPL )
2.1) On the basis of the information collected the details of the payment received was as under:-
ITA No.1150/Ahd/2007Shell International B.V. Netherland Vs. ITO A.Y. 2003-04 Name and address of Description of Total amount paid/received or Method used associated enterprise services -3-
payable/receivable in the for determining
provided to/from transaction the arm's
associated
length price
enterprise
As per books of As computed
accounts having regard to
arm's length
price
Shells International B.V. Provision of 3,13,73,318/- 3,13,73,318/- Cost Allocation
business
support service
to HPPL
Shells International B.V. Provision of 1,08,49,894 1,08,49,894 Cost Allocation
business
support service
to HLPL
Shells International B.V. Provision of 6,54,26,210 6,54,26,210 Cost Allocation
business
support service
to SHGPL
Shells International B.V. Provision of 91,99,883 91,99,883 Cost
business Reimbursement
support service
to SHGPL
Total 11,68,49,305/- 11,68,49,305/-
2.2 ) Some reconciliation was furnished by the assessee but that was not acceptable to the A.O.,therefore finally the withholding tax @ 10% was imposed on the figure of Rs. 11,68,49,305/-.
2.3) The main controversy as emerged from Ground No. 1 is due to the reason that the assessee has denied the liability of tax as per the return of income. A note annexed to the return was reproduced by the A.O. as follows :
"During the year ended March 31,2003, services rendered by Shell International BV was limited to providing support services which are not covered under Article 12 of DTAAA and are in the nature of business profits. As per the Article 7 of the DTAA, business profit of Netherlands tax resident i.e. SIBV is taxable in India only if SIBV were to constitute a permanent establishment PE in India and business profits are attributable to such PE. The provision of support services do not result in constitution of a PE in India/ or profits that are attributable in India. Accordingly, SIBV is not liable to tax in India and has claimed refund of taxes withheld in India."
2.4) However the A.O. was not in agreement and by referring the order of associated concerns held that "The service under SSA are technical in nature and would therefore be classified as FTS under the Netherland DTAA. The tax @ 10% of the total ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04 -4- remittance, as per the provisions of the contract will be deducted at source before this amount is remitted to Shell International B.V." Therefore in a cryptic manner the A.O. had concluded that on the total receipts the tax @ 10% should have been deducted, which was computed at Rs. 1,16,84,931/- and taxed in the hands of the assessee. Being aggrieved the matter was carried before the first Appellate Authority.
3) The foremost contention of the assessee before Ld. CIT(A) was that the assessee has only provided support service as per the ' Support Service Agreement' ( in short SSA) and the amount received was not the ' Fees for Technical Services' (in short FTS ) under the Double Taxation Avoidance Agreement, Article 12, between India and Netherland( known as India- Netherland Tax Treaty).
3.1) The assessee has also submitted that the difference in the total amount received was due to the different exchange rate applied by those concerns while giving information U/s 133(6) of the Act.
3.2 ) An another issue had cropped up before Ld. C.I.T.(A), on account of a remand report, in respect of the Permanent Establishment ( P. E. ) in India of the assessee i.e. Shell International B.V. ( in short SIBV).
3.3) From the side of the assessee certain reply and counter- replies were furnished and from the side of the Revenue a Remand Report was furnished. After considering those submissions the LD.CIT(A) has decided the issue in revenue's favour. According to him the assessee had entered into an agreement with certain entities at Hazira for providing various types of support service, salient features were reproduced in the order, as under:-
ITA No.1150/Ahd/2007Shell International B.V. Netherland Vs. ITO A.Y. 2003-04 -5- " (a) Assistance in establishment in Gas Transportation Agreement ("GTA") SIBV has assisted in finalization of the GTA by apprising SHG of the typical terms of such contracts globally, liabilities and commitments shared by the party, the typical tariffs that may be payable etc.]
(b) Evaluation of potential customers.
The customer evaluation comprises demand appraisal, credit worthiness, track record, financial capabilities etc to honour a long term take or pay contract. SIBV has assisted by communicating parameters, appraisal processes etc.
(c) Assistant in establishment of the Gas Sales Agreement (GSA) TTMS is me most significant contract, with complex terms to incorporate the take or pay commitments, lay down the non- compliance penalities, damages commensurate with the investments etc. SIBV has apprised SHG of these complex terms and need to be incorporated in such agreements.
(d) Risk management in negotiations This aspect is overlapping with assistance in establishment of any contract. This covers assistance in incorporating terms within the contract (typical of gas contracts) which are stringent and commensurate with the risk of the business.
(e) Assistance in project promotion India is a nascent market for imported LNG, and concepts like long term take or pay are very new and modern for the Indian market. SIBV has been advising SHG on the market positioning, market education of the gas business etc.
(f) Assistance in LNG transportation and shipping With the global experience of SIBV, it assists SHG in scouting the international markets for suppliers, shippers etc. who can offer most competitive terms for the respective functions.
(g) Establish post service agreement Imported LNG has to be unloaded at a port, which has facilities for unloading this specialized cargo. Again the contracts will have special terms being long term in nature and requiring for commitments from the port service provider. SIBV has assisted SHG in establishing this agreement.
ITA No.1150/Ahd/2007Shell International B.V. Netherland Vs. ITO A.Y. 2003-04 -6- 3.4 ) In the light of the services rendered by the assessee it was observed by Ld. CIT(A) that the same was 'consultancy services' and ' technical' in nature. He has also held that they were like 'making available' technical expertise to Hazira units. According to CIT(A) the assessee had technical expertise in that field which was provided to those concerns at Hazira. He has perused the agreement and thereupon commented that the technology of transportation of Natural Gas and LNG was provided by the assessee. According Ld. CIT(A) the technical services were made available as per Article 12 of DTA Agreement. Finally it was concluded that payments made by the Indian Companies were 'fees for technical services' hence given right treatment by the A.O. 3.5) About the grievance of correct amount received by the assessee, the CIT(A) has held as under :-
"I have carefully considered the submissions made by the ld. Authorised Representative though the assessee has claimed that SHGPL has recognized, an additional sum of Rs.4197783/- which was reversed in the following year but there is no such confirmation filed by the assessee to show that these amount has been reverse by the respective companies. Assessee can always approach the Assessing Officer for rectification in this regard if he is able to substantiate this claim. It has been claimed that the balance amount of Rs.4629322/- is on account of difference in exchange rates being applied by the appellant. But again there is no working as to how this huge difference has arisen. From the information gathered by the Assessing Officer u/s. 133(6) from the payer, amount paid in Indian currency is clearly known. Therefore, I fail to understand how such a difference has arisen and if there was nay difference it was for the assessee to file a working of the same so that it could be verified. As the assessee has not explained the difference, I find no reason to interfere with the Assessing Officer's working in this regard and Assessing Officer's action is upheld."
3.6) As far as the issue of existence of PE in India, there was no final verdict of Ld. CIT(A) although it was touched in the Remand ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04 -7- Report. It was also a fact that there was no discussion on this issue of P.E. either by the A.O. in the impugned assessment order.
4) From the side of the assessee Ld. A.R. Mr. Dhinal Shah appeared. He has furnished submissions as also argued the case in the light of the compilation filed. Some of the pertinent portions are reproduced below:-
1. Background:
The Appellant, Shell International BV, a Netherlands company entered into Support Service Agreements ('SSA') with Hazira Port Private Limited ('HPPL'), HaziraTNG' Private Limited ('HLPL') and Shell Hazira Gas Private Limited ('SHGPL') [presently known as Hazira Gas Private Limited] with effect from 1 April 2002 to provide support services.
In the present case, under the terms of the SSAs, the Appellant was contracted to render the support services in the following areas:
1. Commercial support,
2. Logistics
3. Public affairs
4. Human resource matters
5. Finance, banking and treasury
6. Administrative
7. Legal, and
8. Healthcare services Certain specific services which were rendered by the Appellant have been noted by the Hon'ble CIT(A) and reproduced by him in his order (refer page 9 and 10 of the CIT(A) order) which are broadly described as under:
1. Assistance in establishing Gas Transportation Agreement
2. Evaluation of potential customers
3. Assistance in establishing Gas Sales Agreements
4. Risk management in negotiations
5. Assistance in project promotion
6. Assistance in LNG transportation and shipping
1. Establish port service agreement During the FY 2002-03 relatable to the AY 2003-04, the Appellant received the following amounts under the said SSAs:ITA No.1150/Ahd/2007
Shell International B.V. Netherland Vs. ITO A.Y. 2003-04 -8- Payer Particulars Amount (Rs) HPPL Rendering support services under the 2,99,50461 SSA HLPL Rendering support services under the 1,03,35,044 SSA SHGPL Rendering support services under the 5,82,26,204 SSA SHGPL Reimbursement of mobilization expenses 95,10,671 Total 10,80,22,380 The return of income was filed by the Appellant by contending that the services rendered under the said SSAs being commercial in nature do not fall within the definition of Fees for Technical Services ('FTS') and therefore, are not taxable in India.
Assessment Order u/s 143(3) The Income-tax Officer, Ward 1(4), Ahmedabad [hereinafter referred to as the 'learned Assessing Officer' or 'learned AO'] passed the assessment order holding that the revenues received under the said SSAs are in nature of FTS and hence, taxable at 10% under the provisions of the Article 12 of the India- Netherlands tax treaty.
While finalizing the assessment, the learned AO failed to provide any cogent reasons as to why and how the amounts received under the SSAs constituted FTS and merely relied on the 195(2) certificate issued by the Asst. Director of Income-tax, Circle 2(2), International Taxation, New Delhi on SHGPL's application which held that the service under the SSA were taxable as FJS under the India- Netherlands tax treaty. In arriving at the conclusion, the learned AO also ignored the 195(2) orders passed by the same office in case of HLPL and HPPL which allowed HLPL and HPPL to remit the fees to SIBV for services rendered the SSAs without deducting any tax at source.
Further, for computing the total revenues in the hands of the Appellant, the learned AO has considered the amounts disclosed by HPPL, HLPL and SHGPL collectively in their respective Form SCEBs and not the amounts received and disclosed by the Appellant in its own Form 3CEB (as mentioned above).
Aggrieved by the said order of the learned AO, appeal was preferred with the CIT(A).
Order of the Hon'bie CIT(A) ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04 -9- The Hon'bie CIT(A) upheld the order passed by the learned AO to hold the services rendered by the Appellant were technical in nature and therefore, the fees towards the same constituted FTS as per Article 12 of the India-Netherlands tax treaty. However, the Hon'bie CIT(A) failed to elucidate as to how the said services were technical in nature and how by rendering such services, technology was made available by the Appellant to HLPL, HPPL and SHGPL, in light of the numerous judicial precedents which have explained the term 'make available'.
Given the above, aggrieved by the CIT(A)'s order, the Appellant has preferred this appeal.
2. Submission of the Appellant:
Ground 1 - Amounts received by the Appellant for rendering support services under the Support Service Agreement ('SSA') do not qualify as 'Fees for technical services' under Article 12 of the Double Taxation Avoidance Agreement between India and Netherlands ('India-Netherlands Tax Treaty') It has been the contention of the learned AO as well as the Hon'bie CIT(A) that the services rendered by the Appellant under the SSAs are technical in nature and hence, are taxable in India as per Article 12 of the India-Netherlands tax Treaty. In this regards, Your Honours are requested to note that Section 9(i)(vii) of the Income Tax Act, 1961 (Act) defines the term 'fees for technical services' in a wide manner to any consideration for rendering managerial, technical or consultancy services. However, reference is also invited to Section 90(2) of the Income Tax Act, 1961 which clarifies that the assesssee can rely on the Act or the tax treaty, whichever is more beneficial.
This view is supported by the Supreme Court in the UOI and Anr vs. Azadi Bachao Andolan and Anr (263 ITR 708) and also by Circular Mo. 333 dated 2 April 1982. Accordingly, the said provisions of the India-Netherlands tax treaty are reproduced hereunder:
"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).....
(b) make available technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or technical design.ITA No.1150/Ahd/2007
Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
- 10 -
Accordingly, unlike the definition under the Act, the definition under the tax treaty is restrictive and for any service to be considered as FTS under the India-Netherland tax treaty, the following conditions needs to be fulfilled:
1. The services rendered needs to be technical or consultancy in nature; and
2. Such service should 'make available' technical knowledge, experience, skill, know-how or processes or should consist of development and transfer of technical plan or design.
Reliance on the MOU to the India - US tax treaty as aids to the construction The terms 'technical' or 'make available' are not defined under the India-Netherlands tax treaty. However, the same are explained in the MOU to the India-USA tax treaty. Accordingly, reliance may be placed on the said MOU for interpreting the said terms. In this regard, reference may be made to the Notification No. 11050/F.No.501/2/83-FTD which specifies that the MOU to the India-USA tax treaty may be used for the purpose of interpreting the provisions of India-Netherlands tax treaty. Further, reference may also be made to various judicial precedents which have laid down that the MOU to the India-USA tax treaty may be used as an interpretative aid for identical/ similar provisions in other bilateral tax treaties.
Commercial services not taxable as FTS under Article 12 of the India
- Netherlands tax treaty The said MOU defines 'technical services' as such 'services requiring expertise in a technology". Further, the MOU also clarifies that consultancy services which are not of a technical nature can not be included services.
It is submitted that on perusal of the services rendered under the SSA, it is evident that the said services are commercial in nature and not technical. In this regard, reliance may also be placed on example 7 given under the MOU to the India-USA tax treaty, reproduced below for easy 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 ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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worldwide. It hires an American marketing consulting firm to do a computer simulation of the world market for such oil and to adverse it on marketing strategies. Are the fees paid to the U.S. 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).
In view of the above, it is very clear that rendition of consultancy services which impart commercial information or knowledge would not constitute technical services and hence would not be taxable under the India - Netherlands tax treaty.
The same view has also been upheld in the following decisions:
1. DCIT vs. Boston Consulting Group Pte Ltd. - 94 ITD 31 (Mum. ITAT)
2. Bharat Petroleum Corporation Ltd. vs. JCIT - 14 SOT 307 (Mum. ITAT)
3. Wockhardt Limited vs ACIT (Mum. ITAT) Accordingly, as the services rendered by the Appellant are in nature of rendering commercial information/ knowledge and related support services to HLPL/ HPPL/ SHGPL, the same cannot be held to be technical in nature Restrictive definition under the India - Netherlands tax treaty- use of the term 'make available' Without prejudice to the above and even for sake of argument it is assumed that the services rendered are technical in nature, they would still not qualify as FTS as per Article 12 of the India -
Netherlands tax treaty as they do not make available any technical knowledge, experience, skill, etc as per the definition in the India - Netherlands tax treaty. With regard to making available technical knowledge etc, the MOD explains that ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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'technology will be considered 'made available' when the person acquiring the service in 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.
The term 'make available' has been further explained by the Mumbai ITAT in the case of Raymond Limited vs. DCIT (86 ITD 791) which upheld the principle that unless technical services are rendered which would enable the recipient to apply the technology, it would not constitute 'Fees for Included Services' under the Tax Treaty. Further, the ITAT laid down the following criteria to determine whether a service would satisfy the 'make available' condition to be classified as FTS under the India-US Tax Treaty -
• Mere rendering of services is not roped into FTS unless the person utilizing the services is able to make use of the technical knowledge, etc, by himself in his business or for his own' benefit and without recourse to the performer of the services in future.
• The technical knowledge, experience, skill, etc, must remain with the person utilizing the services even after the rendering of the services has come to an end.
• A transmission of the technical knowledge, experience, skill, etc, from the person rendering the services to the person utilizing the same is contemplated by the Article.
• Some sort of durability or permanency of the result of the 'rendering of services' is envisaged which will remain at the disposal of the person utilizing the services.
• The fruits of the services should remain available to the person utilizing the services in some concrete shape such as technical knowledge, experience, skill, etc. Additionally, one may also refer to the decision of the Authority for Advance Ruling in the case of Intertek Testing Services India (P) Ltd., In re (307 ITR 418) had observed:
"By making available the technical skills or know-how, the recipient of service will get equipped with that knowledge or expertise and be able to make use of it in future, independent of the service provider. In other words, to fit into the terminology 'make available', the technical knowledge, skills etc must remain with the ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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person receiving the services even after the particular contract comes to an end. The services offered may be the product of intense technological effort and lot of technical knowledge and experience of the service provider would have gone into it. But, that is not enough to fall within the description of services which make available the technical knowledge, etc. The technical knowledge or skills of the provider should be imparted to and absorbed by the receiver so that there receiver can deploy similar technology or techniques in future without depending on the provider.
In this regard, further reference may be drawn to the example 4 given under the MOD to the India-USA tax treaty which explains the concept of 'make available'. The said example is reproduced below.
Example 4 Facts:
A U.S. manufacturer operates a wallboard fabrication plant outside India. An Indian builder hires the U. S. company to produce wallboard at that plant for a fee. The Indian company provides the raw materials, and the U.S. manufacturer fabricates the wallboard in its plant, using advanced technology. Are the fees in this example payments for included services?
Analysis:
The fees would not be for included services. Although the U.S. company is clearly performing a technical service, no technical knowledge, skill, etc., are made available to the Indian company, nor is there any development and transfer of a technical plant or design. The U. S. company is merely performing a contract manufacturing service.
Based on the above judicial precedents one can summarize that technical or consultancy services would 'make available' when the rendition of such technical services enables the recipient of the services to apply the technology imbibed in the said services in future without relying again on the service provider. Similar view has also been adopted by the judiciary at various forums in the following cases:
1. DCIT vs. Boston Consulting Group Pte Ltd. - 94 ITD 31 (Mum. ITAT)
2. Bharat Petroleum Corporation Ltd. vs. JCIT - 14 SOT 307 (Mu. ITAT)
3. Mahindra & Mahindra Limited vs. DCIT - 313 ITR 263 (Mum.
ITAT)(SB) ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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4. Wockhardt Limited vs ACIT (Mum. ITAT)
5. Sheraton International Inc - 313 ITR 267 (Delhi HC)
6. Bharati AXA General Insurance Co. Ltd., In re - 326 ITR 477 (AAR)
7. Ernst & Young (P) Ltd., In re - 323 ITR 184 (AAR)
8. Worley Parsons Services (P) Ltd., In re - 313 ITR 74 (AAR)
9. Scientific Atlanta Inc - 33 SOT 220 (Mum. ITAT)
10. Invensys Systems Inc-317 ITR438 (AAR)
11. Anapharm Inc, In re - 305 ITR 394 (AAR)
12. NQA Quality Systems Registrar Ltd. vs. DCIT - 92 TTJ 946 (Delhi ITAT) Additionally, your Honours' attention is drawn to the protocol to the India - Netherlands Tax Treaty. As per the said protocol, if after signing of the India-Netherlands Tax Treaty, India signs a Tax Treaty with any OECD member country which limit India's right of taxation at source of dividends, interests, royalties, fees for technical services or payments for the use of the equipment to a rate lower or a scope more restricted than the rate or scope provided under the India- Netherlands Tax Treaty, than such restricted rate or scope shall apply to the India-Netherlands Tax Treaty also. Copy of the India- Netherlands Tax Treaty is already attached for Your Honours' reference.
Portugal is member country of OECD. India has signed a Tax Treaty with Portugal on 1 April 1998 ie after the India-Netherlands Tax Treaty. Relevant extract of Article 12 of India - Portugal Tax Treaty is reproduced as under:
"4. For the purposes of this Article, "fees for included services"
means payments of any kind, other than those mentioned in Article 14 and 15 of this Convention, to any person in consideration of the rendering of any technical or consultancy services (including through the provision of services of technical or other personnel) if such services:
(a) ...........
(b) Make available technical knowledge, experience, skill, know-how, or processes or consist of the development and transfer of a technical plan or technical design which enables the person acquiring the services to apply the technology contained therein."
The above clause explicitly mentions that payment would be considered as fees for included/ technical services only where rendering of such technical or consultancy services make available technical knowledge, experience, skill etc which enables the service ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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recipient to apply the technology imbibed in such services by himself. The Mumbai ITAT in the case of Raymond Ltd. vs DCIT (supra) has acknowledged this explicit explanation of the term 'make available' in the context of the India-Singapore Tax Treaty which also contains similar wordings. Given the same, the narrower provisions of the India-Portugal Tax Treaty can also be applied in the instant case.
Prayer In the present case, under the terms of the SSAs, the Appellant was contracted to render the support services in the areas of commercial support, logistics, public affairs, human resource matters, finance, banking and treasury, administrative, legal, and healthcare services.
The services are purely commercial in nature which would assist HLPL/ HPPL/ SHGPL in finalizing commercial terms with their customers/ service providers. The said services do not involve any element of technology concerning the recipients' business. Accordingly, the said services do not fulfill the condition that the services rendered should be technical in nature and should make available the technology therein to the service recipient.
In view of the same, it is prayed that the aforesaid services would not be taxable as FTS as per Article 12 of the India - Netherlands tax treaty.
Ground 2 - Without prejudice to Ground no. 1, reimbursement of expenses not taxable as 'Fees for technical services' under Article 12 of the India-Netherlands tax treaty The Appellant received Rs.95,10,671/- as reimbursement of expenditure from SHGPL in course of rendering services to SHGPL. The said expenses are mainly in the nature of out of pocket expenses like travel, lodging and boarding, visa fees etc of the employees of the Appellant who rendered services to SHGPL under the SSA. The expenses so incurred were reimbursed by SHGPL on a cost-to-cost basis without any mark up.
Another way to look at the same would be that if the said expenses were actually incurred by SHGPL itself then such incurring of expenditure would not be regarded as income in the hands of the Appellant. The Appellant therefore humbly submits that just because it has initially incurred the expenditure from a convenience perspective and then recovered the same from SHGPL would not alter the nature of the receipt so as to be regarded as income in the hands of the Appellant.
ITA No.1150/Ahd/2007Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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In this regard, attention of the Hon'ble Members is drawn to the various judicial precedents which support the contention of the Appellant that reimbursement of expenditure received is not to treated as income in the hands of the Appellant -
1. Siemens Aktiongelgsellschaft ( 310 ITR 320) (Bom.)
2. Director of Income-tax (International Taxation) Vs Krupp Udhe GmbH (2010-TIOL-214-HC-MUM-IT) (Bom.)
3. Mahindra and Mahindra Ltd. vs DCIT (313 ITR 263) (AT) (Mum. ITAT)(SB)
4. Compagnie Francaise D'Etudes Et De Construction v. Inspecting Assistant Commissioner (8 ITD 215)
5. CIT v. Dunlop Rubber Co Ltd (142 ITR 493)(Cal)
6. CIT Vs SG Pgnatale (124 ITR 391)(Guj.) In view of the above, it is submitted that the reimbursement of expenditure received by the Appellant would not constitute income in the hands of the Appellant as contemplated under section 2(24) of the Act and therefore, not taxable in the hands of the Appellant.
Ground 3 - Considering the higher of the amounts mentioned in the transfer pricing certificate (i.e. Form 3CEB) of the Appellant and the information as provided by HPPL, HLPL and SHGPL under section 133(6) of the Act as the tota! receipts of the Appellant (i.e. Rs 11,68,49,305) The learned AO computed the total income of the Appellant by considering the details provided by HPPL, HLPL and SHGPL and ignoring the details provided by the Appellant.
During the course of the appeal proceedings, it was submitted that the difference between the revenues reported by the Appellant and information furnished by HLPL, HPPL and SHGPL differed on account of the following -
i) Additional sum recorded by SHGPL which was reversed by it in subsequent year - Rs 41,97,783
ii) Difference on account of different exchange rates applied by the Appellant vis-à-vis HLPL, HPPL and SHGPL - Rs 46,29,322.
The Hon'ble CIT(A) however did not consider the explanations furnished by the Appellant and upheld the decision of the learned AO.
Subsequent to the passing of the appeal order by the CIT(A), the learned AO finalized the penalty proceedings in the Appellant's case for the year under consideration and levied penalty on the additions ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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made by him. Aggrieved by the same, appeal was preferred with the CIT(A).
The Appellant reiterated the reasons for differences before the CIT(A) in course of the penalty appeal proceedings. The Hon'ble CIT(A) passed directions to the learned AO to verify the Appellant's claim of difference.
Pursuant to the said direction, the Appellant submitted a detailed reconciliation of the differences vis-a-vis the amounts reported by HLPL, HPPL and SHGPL. The learned AO, having satisfied himself with the genuineness of the Appellant's claim, passed an order under section 154 of the Act accepting the claim of Appellant.
Accordingly since the learned AO has passed the order under section 154 accepting the claim of Appellant, this ground of appeal should stand resolved."
4.1) From the side of the Revenue Department Ld. CIT (DRs) Mr. S.K.Gupta and Mr. D.C.Patwari appeared. They have also placed on record a written submission and the significant paragraphs are as under :-
"The assessee company has entered into Support Services Agreement with its group companies carrying out business activity in India i.e. M/s Hazira Port Private Limited, M/s Shell Hazira Gas Private Limited and M/s Hazira LNG Private Limited through identically worded agreements signed on same date i.e. 28-2-2003, however, effective from 1-4-2002. These agreements are for 10 years from effective date for all the three Indian Companies. Nature of services provided in all he three agreements are exactly similar and are as under :
• Commercial support • Logistics, • Public affairs, • Human resource matters, • Finances, banking and treasury, • Administrative, • Legal, and • Healthcare services.
However, it is clearly mentioned in the agreements that employees of M/s Shell International B.V. (assessee) will not be coming to India for rendering the services.ITA No.1150/Ahd/2007
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It is trite law that nature of income is to be seen in the hand of earner of the income i.e. in the present case in the hand of the assessee and not in the hand of recipient. These services may appear to be broad commercial services but are to be provided by the employees of the assessee who are having technical knowledge, experience and skill in respective field i.e. logistics, legal services, etc. These services have been provided on long term basis to the Indian entities as these are newly established entities in India of the Shell Group and in above broad categories of services they will be requiring services from the assessee company. It is clear that Indian entities will be receiving Emails / Instructions from the assessee to carry out implementation of these services in their Indian business. Since technical personnels of the assessee will not be visiting India generally and quantum of these services are huge, Indian entities through their Indian employees will be absobing and utilizing these technical knowledge, experience and skill received through Instructions / Emails, etc. in their business operation.
3. The issue regarding whether these services are fees for technical services, are to be as per paragraph 5 of Article 12 of Indian Netherland Treaty. The treaty provides that its payments of any kind to any person in consideration for the rendering of any technical or consultancy services, 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 or processes, or consist of h development and transfer of a technical plan or technical design.
No further definition of any word, such as technical services or consultancy services or make available has been given in the treaty. In paragraph 2 of Article 3 of Indian Netherland Treaty, it has been provided that as regard the application^ of the convention by one of the States if term is not defined herein shall, unless the context otherwise requires, have the meaning which it has under the law of that State concerning the taxes to which the convention applies. It is clear from above that these terms are to be defined as per domestic law as per the country applying the treaty. In the present case these terms are to be defined as provided in domestic law of India. Honourable Supreme Court has held that the advice rendered by the lawyer would be a piece of technical service in the case of Continental Construction Ld. Vs. CIT (195 ITR 811) (SC). It was further held that services provided by hotel consultants and specialists to a Foreign Hotel was technical service in the case of CBDT Vs. Oberoi (India) (P.) Ltd., 97 Taxmann 453 (SC).
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In the said case Honourable Supreme Court was interpreting Section 80 O which is given as under :
"80-O.Wher the gross total income of an assessee, being an Indian company or a person other than a company who is resident in India, includes any income by way of royalty, commission, fees or any similar payment received by the assessee from the Government of a foreign State or a foreign enterprise in consideration for the use outside India of any patent, invention, model, design, secret formula or process, or similar property right, or information concerning industrial, commercial or scientific knowledge experience or skill made available provided or agreed to be made available or provided to such Government or enterprise by the assessee, or in consideration of technical services rendered or agreed to be rendered outside India to such Government or enterprise by the assessee, under an agreement approved by the Board in this behalf, and such income is received in convertible foreign exchange in India, or having been received in convertible foreign exchange outside India or having been converted into convertible foreign exchange outside India, is brought into India, by or on behalf of the assessee in accordance with any law for the time being in force for regulating payments and dealings in foreign exchange, there shall be allowed, in accordance with and subject to the provisions of this section, a deduction of the whole of the income so received in, or brought into India in computing the total income of the assessee"
Thus it can be seen that the assessee company was providing training through services to various Indian entities on long term basis so that they can carry out their business functions. In view of same the activity of the assessee will -, also be covered as royalty under paragraph 4 of Article 12 of Indian Netherland Treaty in respect of providing information concerning industrial, commercial or scientific experience. The word 'made available' should also be interpreted on the basis of above decision of Honourable Supreme Court in the case of Oberoi Hotels word 'made available' has been used in Section 80-O and it is the only place whether any domestic law word 'made available' has been used.
It is to be clarified that the first case decided by Honourable ITAT, Mumbai on the issue of meaning of word 'made available' in the case of Raymond Limited Vs. DCIT, 86 ITD 791 and by Honourable Kolkata Tribunal in the case of CESC Ltd. Vs. DCIT, 87 ITD 653 were on one time issue of services provided by foreign ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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companies on the proposed issue of GDRs in International Market and all other decisions, these orders were followed without differentiating one time service i.e. service for issue of GDR or long term service contracts like in the present case.
In the case of Raymond Limited Vs. DCIT, Honourable ITAT has observed in para 92 as under :
"mere rendering of services is not roped in unless the person utilizing the services is able to make use of the technical knowledge, etc. by himself in his business or for his own benefit and, without recourse to the performer of the services in future. The technical knowledge, experience, skill etc. must remain with the person utilizing the services even after the rendering of the services has come to an end. The A transmission of the technical knowledge, experience, skills, etc. from the person rendering the services to the person utilizing the same is contemplated by the article. Some sort of durability or permanency of the result of the "rendering of services" is envisaged which will remain at the disposal of the person utilizing the services. The fruits of the services should remain available to the person utilizing the services in some concrete shape such as technical knowledge, experience, skills, etc."
which clearly show that in present case there is transmission of technical knowledge, experience, skill, etc. from the persons rendering the services to the persons utilizing the same and some sort of durability or permanency of the result of rendering of the service is fulfilled.
An effort was made to find the common meaning of the word 'made available' through the google search on the internet, the results of which are enclosed as Annexure V\' which clearly shows that it means merely offering or made accessible to the other party and it never meant that he other party should be trained or made expert in such technical knowledge. It will be absurd on part of a person to make other person expert of its core competency, which will result in situation that the recipients of services will not look again to him when these services are needed in future. Training / teaching / educational services have separately been dealt else where in the trite. In view of above, the meaning of 'make available' has been read in the present context.
Further attention is invited the decision of Hounrable ITAT, Bangalore in the case of M/s Bovis Lend Lease India Pvt. Ltd. Vs. ITO, 36 SOT 166 Bangalore where word "made available' in paragraph 101 and 102, which are reproduced as under :
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"101. Hence, in the instant case, we have to see as to whether the requirement of 'make available' is satisfied in this case. The appellant is receiving various services. In respect of assistance in the operation of business, it has been made clear that LLAH will provide education and training including the training material for the staff of the appellant company on or offshore. In respect of majority f services, it has been mentioned that I will provide assistance. Thus, LLAH is providing assistance for various services and as per he agreement, it has to provide education and training to the employees of the appellant company. The word "Make available" only refers to the willingness of the provider of the services and does not refer the acceptance of the receiver of the services.
102. The dictionary meaning of assistance is to help or support. It does not mean to provide. When one is going to help or support then he is making the other person to d the same in future. The Word Assistance is defined in Lax Lexicon by Venkataramaiya as:
"The word 'assistance' as used in the section implies that the party who assists is doing something which in ordinary circumstances the party assisted could do for himself" - Ramaya Naoka I.L.R. 26 Mad 26 Mad 419 at p. 421."
In view of above, it is submitted that services provided by the assessee should be considered as technical services which have been made available to the recipient of service and without prejudice to above, they are covered in royalty as well as information concerning industrial, commercial or scientific experience as per paragraph 4 of Article 12 of India Netherland Treaty. (There is no dispute between the assessee and the Department that these services are taxable as Indian Income-tax Act.)"
5) We have heard both the sides at length. At the out set our foremost observation is that the issues cropped up in this appeal have not been exhaustively dealt with by the lower authorities. For this comment we hereby give our reasons as follows :
a) The impugned order of the A.O. is a cryptic and non-
descriptive judgement devoid of reasoning. Rather the assessee itself had raised this issue before Ld. CIT(A). Certain age-old case laws have been cited and those are still alive due to their utmost ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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significance. The honourable courts have consistently reminded that the judicial as also quasi-judicial authorities are required to assign reasons in support of their conclusion. Although the assessee had raised the objection that the said assessment order is against the natural justice but CIT(A) has not given his verdict.
b) On merits, the trite law is that under the provisions of I.T.Act a non-resident is subject to tax in India to the extent any income is deemed to accrue or arise in India. Sec. 9 prescribes that the income by way of Fees for Technical Services is considered as income deemed to accrue or arise in India. Certain Articles of the Tax Avoidance treaties for e.g. Article 12(4), have endorsed this legal position.
b.1) Next is an exception as carved out in Sec. 90 of the Act empowering the Govt. to enter into an agreement with an another State for granting certain relief. Hence there is no more a dispute that a Treaty overrides the provisions of the Act. But in a situation as persisted in this appeal, the first step ought to be taken by the Revenue Authorities to give a clear-cut finding as prescribed under Sec. 9(1) (vii) of the Act. It is very simple. It is expected from the A.O. to go-through each and every clause of the Agreement in question. If rendering of 'technical service' is the essence of the terms of the Agreement then the provisions of Sec. 9 are required to be applied. The service needs to be 'technical' and/or 'consultancy' in nature. In the present case it was accepted by the assessee that the agreement covered the following types of services :-
(i) Commercial Support
(ii) Logistics
(iii) Public affairs
(iv) Human resource matters
(v) Finance, banking and treasury
(vi) Administrative
(vii) Legal and
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(viii) Healthcare services.
So a 'commercial support' or a' logistic support' or an 'assistance to set-up a business' or matters related to 'human resources' whether fall under the definition as prescribed U/s 9 of the Act ought to have been exhaustively examined by the A.O. Before us the Ld. A.R. Mr. Dhinal Shah has tried to narrate some of the clauses of those agreements, but only theoretical narration is not going to serve the purpose but the treatment in accounts is equally essential because those payments are required to be examined in the light of the bills raised by the assessee against which the payments have made. The A.O. is expected to examine the narration of the service rendered for which the bills were raised. Then if possible the A.O. can also examine the head under which the payees have claimed the expenditure. If we hereby accept the claim of the assessee that the impugned receipts were not in the nature of FTS then an adverse consequence may occur in the cases of those entities who might have claimed the expenditure under the said head. Naturally under common sense a payment in a business is made if it is beneficial for the business; therefore, the nature of payment is to be seen from both the angles i.e. from payers as also payees version. This exercise has not been methodically carried out by the A.O. hence in our conscientious opinion restoration of this aspect back to the stage of the A.O. is the correct remedy.
b.2) The next step to find out whether the services in question are 'make-available' comes into operation only when the Revenue takes a view as per the step discussed above that the nature of services are in fact ' fees for technical services'. The provisions of Sec. 9(1)(vii) stops with the finding that there existed rendering of technical service. But, as discussed supra, the DTAA prescribes an exception. The relevant clause is clause 4 of Article 12 of the model tax treaty reads as follows:
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"For the purposes of para 2 of this Article, and subject to para 5 of this Article, the term "fees for technical services" means payments of any kind to any person in consideration for the rendering of any technical or consultancy services (including the provision of services of technical or other personnel) which:
(a) are ancillary and subsidiary to the application or enjoyment of the right, property or information for which a payment described in para 3(a) of this Article is received; or
(b) are ancillary and subsidiary to the enjoyment of the property for which a payment described in para 3(b) of this Article is received; or
(c) make available technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or technical design".
On conjoin reading of Sec.9(1)(vii) and Article 12.4 of DTAA , clause (c), supra, it emerges that 'Fees for Technical Service' is a consideration received in the hands of the recipient, provided, those technical knowledge or know-how etc. are 'make available' to the person who made the payment in lieu of those services. This term is a subject matter of controversy. Broadly speaking in our humble opinion 'make available' means to allow somebody to make use of the know- how or knowledge. This has been further expanded that 'make available' means that the person receiving the services has been enabled to utilise that knowledge or the receiver has become wiser to utilise that knowledge independently. In view of some of the judgements, as cited by Mr. Dhinal Shah, mere rendering of services is not enough unless the person utilising the knowledge is able to make use of that technical knowledge by himself for his own benefit independently i.e without the guidance of the said service provider.
We have examined this aspect seriously in the background of the facts of this case. The undisputed fact is that the term of the agreement is for period of 10 years. In this long period that knowledge shall become part of the system and the persons using that knowledge may themselves become expert. So the technical ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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persons using that knowledge are required to be interrogated. Whether 10 years period is not a sufficient period to equip one- self with the knowledge taught or imparted or communicated. Certain examples of professions are given in some of the judgements. We are aware of those findings, but those revolve around the facts of those cases. However if we apply that logic then a person with the basic knowledge can become expert in a long time of 10 years. Even in medical field in 10 years period a student become super specialist. So the exact nature of the knowledge can only be ascertained by examining the documents or designs or the information handed over by the appellant (SIBV) to those Hazira entities. What were the contents of those documents; according to us, yet to be examined. The terms such as 'commercial support', 'Logistic', Public-affairs', 'Human resources' etc. as listed by the appellant are very general in nature. By the nomenclature of the services, as listed above, it is not clear that what technicality was involved in providing that knowledge?. Further, why a person can not learn those technical aspects in a 10 years time? Whether that technical knowledge is so intricate that even in such long period it could not be understood by the recipient. All these questions can only be answered by a thorough investigation at the level of the assessment. The A.O. shall therefore examine the bills and vouchers prepared by the assessee in support of the claim of expenditure to ascertain the nature of services rendered and then find out that whether could have been made available for the business purpose of those parties. The A.O. has also to find-out that if the services rendered by this assessee were not made available to those Hazira parties for their business purpose then under what ground they have claimed business expenditure, if any?
5.1 In the light of the above discussion and the reasons assigned hereinabove, we hereby restore ground no.1 back to the stage of the AO. This ground is hereby allowed only for statistical purpose protanto.
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6. Regarding Ground No.2, we have noted that this ground was not decided by learned CIT(A) and that question of claim of reimbursement of expenditure was not made before the AO. In the written submission, the learned A.R., MR. Dhinal Shah has submitted that the appellant has received Rs.95,10,671/- as reimbursement of expenditure from SHGPL in the course of rendering services. The assessee has, therefore, required to establish that those expenditures were first incurred out of pocket expenses then only the question of reimbursement can be decided. The assessee is, therefore, required to furnish the details of the bills through which the reimbursement was claimed since all those facts were not earlier examined by the Revenue Authorities, therefore, the natural justice demands to restore this issue back to the stage of the AO to be decided de novo as per law. This ground of the Revenue is, therefore, allowed for statistical purpose.
7. Apropos to ground no.3, we have noted that the learned AR has not pressed this ground and informed that the same has become infructuous. Otherwise also, the question of total receipts can be answered by examining the accounts of those Hazira parties. We have noted that the information was gathered by AO under Section 133(6) from all those parties and thereafter arrived at the said figure. If there was a difference due to foreign exchange fluctuation, the same is a matter of simple rectification. Since, no legal issue has been raised through this ground, therefore, we find no force in this ground of the assessee. Hence, ground no.3 is hereby dismissed.
8. In the result, ITA No.1150/Ahd/2007 is hereby partly allowed for statistical purpose.
B. ITA No. 3950/Ahd/2008 (for A.Y. 2005-06) ITA No.1150/Ahd/2007 Shell International B.V. Netherland Vs. ITO A.Y. 2003-04
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9. This is an appeal filed by the assessee arising from the order of learned CIT(A)-XXI dated 27.8.2008 and the grounds raised are reproduced below:
"The learned Commissioner of Income Tax (Appeals) - XXI, Ahmedabad (hereinafter referred to as learned CIT(A) has erred on facts and in law in holding that amounts received by the Appellant for rendering support services under the Support Service Agreement ('SSA') qualify as 'Fees for technical services' under Article 12 of the Double Taxation Avoidance Agreement between India and Netherlands ('India-Netherlands Tax Treaty').
2. The learned CIT(A) has erred on facts and in law in upholding the charging of interest chargeable under section 234A, 234B and 234D of the Income Tax Act, 1961.
3. The learned CIT(A) has also erred on facts and in law in upholding the adding back of interest under Section 244 received on previously granted refunds."
9.1 Ground No.1 is identical with the view taken hereinabove by deciding assessee's appeal for A.Y. 2003-04, hence this ground is restored back to the stage of the AO to be decided on the same lines as directed hereinabove. Resultantly, this ground is allowed for statistical purpose.
10. Ground No.2 and 3 are consequential in nature and presently do not survive because the final quantum of assessment is yet to be ascertained. The issue of charging of interest under Section 234B and C can be raised before the AO while giving effect to this order. Resultantly, ground no.2 and 3 may also be treated as allowed for statistical purpose only.
11. In the result, ITA No.3950/Ahd/2008 is allowed for statistical purpose.
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C- ITA No.52/Ahd/2009 (for A.Y. 2005-06)
12. This is an appeal filed by the Revenue arising from the order of learned CIT(A)-XXI, Ahmedabad, dated 29.09.2008.
13. The only grievance of the Revenue is that learned CIT(A) has erred in deleting the penalty of Rs.1,08,00,000/- levied under Section 271(1)(c) of the IT Act. The AO has levied the penalty under Section 271(1)(c) vide order dated 28.03.2008 on the income determined under Section 143(3) of Rs.11,68,49,305/-. However, as per the discussion made hereinabove, the impugned amount is yet to be finalized because we have restored the matter back to the stage of the AO. At present, we hereby hold that on account of fact that the issue has been restored back to the file of the AO, therefore, the penalty does not survive. Otherwise also, the learned CIT(A) has given certain directions and partly allowed the appeal of the assessee. Resultantly, the AO is, therefore, required to comply with those directions as well and thereupon decide a fresh whether a penalty at all is leviable on the assessee or not while giving effect of the order of the Tribunal. The ground raised by the Revenue is, therefore, dismissed.
14. In the result, the Revenue's appeal is dismissed.
Sd/- Sd/-
(ANIL CHATURVEDI ) (MUKUL Kr. SHRAWAT )
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 07/08/2013
Prabhat Kr. Kesarwani, Sr. P.S.
TRUE COPY
ITA No.1150/Ahd/2007
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आदे श कȧ ूितिलǒप अमेǒषत/Copy
षत of the Order forwarded to :
1. अपीलाथȸ / The Appellant
2. ू×यथȸ / The Respondent.
3. संबंिधत आयकर आयुƠ / Concerned CIT
4. आयकर आयुƠ(अपील) / The CIT(A)-III, Ahmedabad
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड[ फाईल / Guard file.
आदे शानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) उप/ आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद / ITAT, Ahmedabad