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9. The Ld. Counsel for the assessee submitted that the amount paid by the assessee to M/s. SSA is not in the nature of fees for technical services as per sec.9(1)(vii) as held by Hon'ble Delhi High Court in 88 Taxman 439 which has been followed by the Tribunal. Regarding the amendment made by the Finance Act, 2012, the Ld. Counsel for the assessee relied on the decision of the Tribunal in ITA No.3326/M/2006 in the case of B4U International Holdings Ltd. wherein it has been held that the said amendment cannot be applied unless there a corresponding amendment made in the relevant treaty. He submitted that the definition of royalty given in the relevant treaty has not been amended and in the absence of such amendment made in the treaty corresponding to the amendment made in the relevant provisions by the Finance Act, 2012, the amendment made in the domestic law cannot be relied upon and the assessee can rely on provisions of the treaty being more favourable to him.

15. As regards the absence of FTS Clause in Indo Thailand DTAA, the Ld. DR submitted that the amount of FTS in such case gets covered under Article 22 of the Treaty as other income. In support of this contention, he relied on the decision of Authority for Advance Ruling in the case of XYZ(AAR Nos.886 to 911, 913 to 924, 927, 929 & 930 of 2010 dt. 19.03.2012)

16. In the rejoinder, the Ld. Counsel for the assessee submitted that in the case of Asia Satellite (supra), it was held by the Tribunal that transponder is not an equipment and although the Department disputed this finding by way of question no.4 raised in the appeal before the Hon'ble Delhi High Court, the said appeal of the department has been dismissed by the Hon'ble Delhi High Court. He submitted that what is to be decided first is whether the payment in question is royalty or not keeping in view the nature of amount paid and whether the payee is resident or non-resident is not relevant in this context. He submitted that this aspect will become relevant only when the nature of amount is held to be royalty. He further submitted that there are as many as 25 transponders available on the satellite which are utilised by SSA for providing 14 Channel Guide India Limited ITA 1221/Mum/2006 services to different clients. As regards the contention raised by Ld. DR relying on Explanation 6 to sec.9(1)(vi) inserted by the Finance Act, 2012 with retrospective effect dealing with use of process, he contended that the Department has to take a firm stand whether it is a case of use or process or equipment. He submitted that as held by Ld. CIT (A), it is a case of use of equipment and not the use of process. As regards the reliance placed by the Ld. DR on Article 22 dealing with other income, he submitted that the said article deals with items of income not expressly dealt with any other articles. He contended that the amount in question paid by the assessee to SSA was business income going by the nature of business of SSA and since such income was expressly dealt with in Article 7, the residuary Article 22 cannot be applied. As regards the decision of AAR in the case of XYZ (supra) cited by the Ld. DR, he pointed out that the AAR in the said case has simply relied on its earlier decision rendered in the case of Lanka Hydraulic Institute Limited. (AAR No.874 of 2010 dated 16.05.2011) He pointed out from Para 5 of the order passed by the AAR in the case of Lanka Hydraulic Institute Limited that the entire consideration paid in the said case was held to be in the nature of royalty covered under Article 12 and therefore the question of considering scope of Article 22 was not involved in the said case at all. As regards the amendments made by Finance Act, 2012 with retrospective effect and relied upon by the Ld. DR, he contended that the said amendments cannot be regarded as clarificatory especially when the original provisions were considered and interpreted by the Courts. He submitted that these original provisions existed in the statue right from the year 1976 when there was no satellite, optic fibre or transponders. Relying on the decision of Special Bench of the Tribunal in the case of Siemens Aktiengesellschaft vs. ITO (supra), he contended that subsequent amendment in domestic law is to be incorporated in treaty by some means. He contended that the issue involved in the present case is relating to artificial disallowance made u/s.40(a)(i) which in any case cannot be sustained on the basis of retrospective amendment.