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Sri Ahuja vehemently argues it has not been. He submits that the assessee has neither made any information available to the foreign client nor has it rendered any technical services to the said client. He contends that the contract in favour of the two members of the consortium was in the nature of a turnkey project. This meant that the client was not interested in the details of the information possessed or the services rendered by the contractor: all it wanted was that the Water Supply Project, as per the detailed specifications, designs and drawings furnished by the BWSA should be executed by the consortium, complete in all respects, and handed over to it. Sri Ahuja points out by analysing the provisions of the consortium agreement that the assessee was not concerned with any part of the contract other than the "civil works". He says that all the "Reservoir works" which involved the putting up of the reservoir structures, the trunk pipelines and the mechanical and electrical plant for the project was the responsibility of the SCC and that the assessee had nothing to do but put up a few buildings and ancillary pipelines. The assessee was nothing more than an engineering contractor and, in constructing pump-houses or laying sanitary fittings, he imparted no information and rendered no technical services. Such information as it possessed in these respects was utilised by itself and such technical services, as were rendered by its engineers and other employees were rendered to it and not to either its partner in the consortium or to the foreign Government.

We do not desire to encumber this judgment with a detailed discussion of the large number of clauses of the contract (tender) document and the consortium agreement. But it seems to us that while Sri Ahuja seems to be right in saying that the assessee was concerned only with the civil works section of the project, he has over simplified the part played by the assessee in the execution of the contract. It is not necessary to quarrel with Sri Ahuja's description of the contract as a "turn-key project" which, indeed, was the description given to it by the assessee itself - in para 19 of the application to the Board and in para 2 of the letter dated 17.3.82 - or his consequent suggestion that the foreign government was not interested in. the minute details or working of the contract but only in the final outcome. Still the fact is that the contract executed by the assessee is no ordinary contract. It may be that a good part of the contract was executed by the SCC. But this cannot render the assessee's part insignificant. If the State enterprise itself was a fully expert body capable of completing the entire project on its own, there would have been no need to call for tenders from experienced consortia. The part of the contract entrusted to the assessee was therefore no less significant. The value of the assessee's package in the contract was about ID 153 million as against the total value of the contract estimated at ID 326 millions - more than 40 per cent. The job of the assessee involved survey, soil investigation design, detailed drawings and construction of all civil works and pipelines (other than trunk pipelines). Even these activities involve technical knowledge and expertise. It cannot therefore, be doubted that the assessee, under the contract, had to make use, outside India, of its industrial, commercial and scientific knowledge, experience and skill. Sri Ahuja makes the point that, even if this be so, the assessee made available no information regarding such expertise to the foreign Government. There is equally no doubt that, in executing the contract the assessee has rendered technical services. Any engineering contract involves technical services; more so, a contract of the nature and magnitude involved in the present case. Here again, Sri Ahuja says, no technical services were rendered by the assessee to the foreign Government; the assessee only made use of the technical knowledge, experience and skill of its own employees to perform a task undertaken by it.

But, even assuming that there could be some difference of opinion on the above issue, there can be no doubt at all that, under the contract, technical services were rendered by the assessee to the foreign Government. In our opinion, the attempt of Sri Ahuja to differentiate technical services rendered to the assessee by its employees and technicians from technical services rendered by the assessee to a foreign constituent and urge that the latter alone can qualify for relief under section 80-O on the ground that the project in question was a turnkey project which has succeeded before the High Court, proceeds on an unduly narrow interpretation of the section. In our view, the assessee was undoubtedly rendering services to the foreign Government by executing the water supply project. These services were no doubt technical services, as they required specialised knowledge experience and skill for their proper execution. The argument seems to be that the services in the present case will not be covered by the section because there was no privity of contract between the employees of the assessee who contributed their technical skill and the foreign Government. We think this argument cannot be accepted. The assessee is a company and any technical services rendered by it can only be through the medium of its employees, skilled and unskilled, and even if the contract had not related to a turnkey project, the assessee's employees would have been answerable only to the assessee and none else though, perhaps, in such an event, the other party to the contract may have retained a larger degree of control and supervision in the execution of the contract. Even where the contractor is an individual or firm and not a company, a contract of this magnitude can be executed only through the medium of employees or other personnel engaged by the assessee. The facts that, physically speaking, it is only such employees that render services and that, so far as they are concerned, they render services only to their employer and not to the other contracting party are in no way inconsistent with, or repugnant to, the notion that, so far as the foreign Government is concerned, it looks only to the assessee for rendering of the technical services under the contract. The High Court has pointed out that a person who manufactures a television set ordered by another cannot be said to render technical services to the latter. In our view, that analogy is not apposite in the context of a contract of the nature, magnitude and specialisation with which we are concerned. Where a person employs an architect or an engineer to construct a house or some other complicated type of structure such as a theatre, scientific laboratory or the like for him, it will not be incorrect to say that the engineer is, in putting up the structure, rendering him technical services even though the actual construction and even the design thereof may be done by staff and labour employed by the engineer or architect. Where a person consults a lawyer and seeks an opinion from him on some issue, the advice provided by the lawyer will be a piece of technical service provided by him even though he may have got the opinion drafted by a junior of his or procured from another expert in the particular branch of the law. Shri Ahuja tried to negative this line of thinking by urging that "professional services" have been brought within the scope of section 80-O only by an amendment by the Finance (No. 2) Act, 1991 and that, too, w.e.f. 1-4-1992 which is proposing to substitute the word "technical or professional services" in place of the word "technical services" now used in the section. It seems to us that this amendment may be only of a clarificatory nature. The expression "technical services" has a very broad connotation and it has been elsewhere in the statute also so widely as to comprehend professional services : vide section 9(1)(vii), referred to earlier. But we need not digress on this aspect for two reasons. Firstly, whatever may be the position regarding other "professional services", there can hardly be any doubt that services involving specialised knowledge experience and skill in the field of constructional operations are "technical services". The Board's guidelines, to which reference is made later, specifically say so. Secondly, the question whether "professional services" would be "technical services" or not has no impact on the point we are trying to make viz. that in order to say that a person is rendering such services to another, it is not necessary that the services should be rendered by the former personally and not through the medium of others. For the reasons discussed above, we have come to the conclusion that, under the contracts in question, the assessee had made available technical information to the foreign Government for use outside India and had also rendered technical services to the foreign Government outside India.

The connection of Sri Nariman that, even after the insertion of section 80-HHB, there is room for applicabilty of section 80-O in relation to a contract of this type which is not a construction/installation contract simpliciter appears attractive but we do not think section 80-HHB should be interpreted in such a narrow or pedantic fashion. The section provides for an exemption in respect of profits from a "foreign project" undertaken outside India in the course of business. The expressions "business of execution of a foreign project" or work forming part of it or the `profits derived' from the business, take in all aspects of a business involving the activities referred to in sub- section (2)(b) of section 80-HHB together with all activities, commitments and obligations ancillary and incidental thereto and the profits flowing therefrom. The definition cannot be restricted to the mere physical activity or putting up the superstructure, machinery or plant but should be understood to take within its fold all utilisation of technical knowledge or rendering of technical services necessary to bring about the construction, assembly and installation. However, we need not theoretically eliminate all possibility of a contract involving independent elements calling for consideration both under section 80-HHB and section 80-O. It is perhaps possible to envisage cases where, While undertaking a foreign project, separate contracts are entered into forming two different sets of activities involved viz. (i) construction of works and assembly or installation of plant and machinery and (ii) the transfer of rights know-how, the impartation of technical knowledge or information and the rendering of technical services and providing separate consideration under each heading. It is perhaps possible to say in such cases that there are two contracts in respect of a foreign project, one of which will fall under section 80-HHB and another under section 80-O. Or it may be that even though there is a single contract, it separately identifies the two sets of activities and provides separate consideration for each. In such a case also, it is perhaps, possible to say that the consideration for the foreign project does not comprise in part or in whole of consideration that would fall under section 80-O. But where the contract is for a single indivisible consideration for the execution of a foreign project and does not spell out the imparting of information or the technical services and any consideration therefor, it is difficult to segregate two parts of such a contract, artifically apportion the consideration under two headings referred to above and then apportion the relief under section 80-HHB and section 80-O. This is particularly so in the context of the fact that in the particular case, as has been pointed out earlier the impartation of information was only indirect consisting of what the foreign enterprise of Government could gather from the manner of execution of the contract by the assessee and the technical services rendered to the non-resident principal consisted only of the execution of the project for it by the assessee. In other words, this is a case where the execution of the foreign project, in itself, comprises the elements referred to in section 80-O. There is one single, integral, indivisible contract for executing a foreign project and the entire consideration is attributable to such execution.