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5. Before us, the learned Counsel of the assessee for assessment year 2005-06, has filed a paper book containing pages 1 to 144 containing a copy of the agreement relied upon by the assessee for claiming cost sharing between the assessee and the companies in respect of the various services rendered by the ITA No.1437 & 1438/Del/2012 & 5444/Del./2010 assessee. For assessment year 2006-07, the learnedCounsel filed a paper containing pages 1-150 containing a copy of old service agreement as well as new service agreement dated 01/06/2005. 5.1 In Assessment year 2005-06, the ground No. 1 to 2.1 and 2.3 to 3.1 are related to treating the payment received by the assessee for services rendered as Fee for Technical Services (FTS). Similarly, in assessment year 2006-07, the grounds No. 1 to 4.1 of the appeal relates to the same issue of treating the payment received by the assessee for services rendered as Fee for technical services (FTS).

5.17 We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The moot question in the instant case is whether the payment for services rendered by the assessee are mainly in the nature of the cost reimbursement for support services or in the nature of Fee for Technical Services (FTS).

5.18 For payment for services to fall under the Article 12 ( Fee for Technical Services) of the India Singapore DTAA, the services should first be of technical or managerial or consultancy in ITA No.1437 & 1438/Del/2012 & 5444/Del./2010 nature as defined under article 12(4) of the DTAA, which reads as under:

Asia, human resources, legal, tax, business unit engineering, information and system services (regional IT management and information protection, regional network group, TCO project, Microsoft Windows technical service group, reigonal CAN IT group) , global financial solution Department etc. 5.21 The invoices provided by the assessee contains the description of the services as "AP recharge", IT Recharge, International leased CCT, Diginet etc. 5.22 In the agreement under various titles further scope of the services has been provided. But in our opinion, from the mere scope of the services, it cannot be ascertained which services have been actually rendered by the assessee. Further, nothing can be made out about the nature of the services from the of description services rendered in the invoices. The description of the services in the invoiceis also not getting correlated with the various titles of services under the agreement. 5.23 Further, the learned DR has referred to the various clauses of the agreement to highlight the possibility of the services in the nature of technical services. In our view, the agreement provides ITA No.1437 & 1438/Del/2012 & 5444/Del./2010 scope of the services but what the actual services have been rendered cannot be ascertained from the agreement. The agreement can give a smell about possibility of services in the nature of the technical services, managerial or consultancy but that is not a confirmatory test and for ascertaining the nature of the services, the assessee was required to provide all the documents in relation to the services rendered. But the assessee has neither submitted any such documents before the lower authorities not before us.

6.2 Before us the assessee is contending that issue in dispute of whether the cost reimbursement issued by the assessee during assessment at 2005-06 and 2006-07 satisfy the make available condition under Article 12 should be decided in accordance with the law without being influenced by the factor that in the ITA No.1437 & 1438/Del/2012 & 5444/Del./2010 subsequent year the assessee has offered the same for tax in India. We do not understand, how the Assessing Officer can decide this issue without examining the documentary evidence in support of the actual services rendered. The onus was on the assessee to provide the documentary evidence in support of its claim thatpayment received was only in respect of the reimbursement of cost of daily routine support services, but the assessee has not provided any such documentary evidence either before the lower authorities or before us. Before us even the assessee has not offered willingness to produce such documents before the Assessing Officer, otherwise we would have an option to restore the matter back to the Assessing Officer for deciding a fresh. But in absence of any such willingness, we do not find this as a fit case for restoring the matter back to the Assessing Officer. In the circumstances, the only option is that when the same services rendered by the assessee under the garb of the new service agreement with effect from 01/06/2005 and offered the same for tax as Fee for Technical Services (FTS), the same services rendered under the old agreement during period of 10 months in assessment year 2005-06and period of two monthsin assessment year 2006-07, also falls in the nature of Technical, Managerial or Consultancyservices liable to be taxed under the DTAA. The rule of the consistency also demands that when the assessee has admitted the payment for identical services as Fee for technical services in the subsequent year, the assessee should not dispute this issue in the years under consideration. The assessee cannot take shelter under the decision of the Hon'ble Supreme Court in the case of CIT Vs. M R P Firm (supra), without ITA No.1437 & 1438/Del/2012 & 5444/Del./2010 providing the documentary evidence to the Assessing Officer for examining the nature of the services rendered. In the circumstances, we uphold the order of the Assessing Officer on the issue in dispute. The other arguments raised by the assessee are rendered merely academic only as without knowing the actual services rendered and whether the technical information, knowledge, know how acquired by the assessee has been utilized by the assessee as per requirement of Article12 of the DTAA, the applicability of the judicial decisions cited by the assessee cannot be examined. Accordingly, we are not adjudicating upon the other arguments raised by the assessee.