1. These are three appeals filed by the Revenue against the consolidated order dated 1/2/96 of DCIT(A), Range-I, New Delhi pertaining to 1994-95 financial year.
On the facts and in the circumstances of the case, the DCIT(A) was not justified in law in coming to the conclusion that the payments made to M/s. Jaakko Poyry (Asia Pacific) Ltd. Singapore as "Business Profit" of the Foreign Company instead of "Fee for Technical Services" and therefore are into taxable in India since the payments are in the nature of "Fees for technical services" as defined in Article 12 of India-Singapore Double Taxation Agreement and is taxable in India @ 15% (17.65%) after grossing up)." 3. The relevant facts of the case are that the assessee is a company incorporated in India for the purpose of setting up a Greenfield coated paper and board mill in India based on captive pulp from Indonesia. The assessee intended to raise a loan in the international market and for that purpose, it was required that the appellant had to get an independent assessment of its project done by a reputed consultants.
The appellant chose M/s Jaakko Poyry Pvt. Ltd. Singapore to make independent assessment of the project and to prepare a bankable report.
For the purpose of carrying out the survey and preparation of the report, the appellant had to pay a fixed free of US$ 60,000 to the Consultant in 3 instalments i.e. 20% at the inception and 40% on completion of the final report. The payment had to be made net and free of all texes, duties, etc. Accordingly, the assessee moved an application dated 1/2/95 requesting for authorization to remit a sum of US$ 23,400 (net of taxes) being in the nature of free for preparing feasibility report to M/s Jaakko Poyry (Asia Pacific) Pvt. Ltd. I scatts Road #19-06, Show Centre singapore-0922. As per the assessee's letters dated 18/1/95 & 25/1/95 addressed to the Income Tax Officer, Special Ward 30(1), New Delhi, it was claimed by the assessee that not tax is chargeable on the amount sough to be remitted as it is a business profit to the recipient and is covered under Article 7 of the D.T.A.A.4. Considering that while para 1 of Article 7 of DTAA entered into between India and Singapore States that the business profits of an enterprise of a contracting state shall be taxable only in that State (unless it has a permanent establishment in the other state). Thus, the ITO was of the view that from para 7 of the said Article, it was clear that where profits include items of income which are dealt with separately in other Articles of this DTAA, then the provisions of those articles shall to be affected by the provisions of this Article.
5. Further, referring to Article 12 of the said DTAA, he was also of the view that royalties and fees for technical services may also be taxed in the contracting States in which they arise and according to the laws of that State if the recipient is the beneficial owner of the royalties as fees for technical services. He further observed that however tax on royalty and fees for technical services shall not exceed 15% of gross amount of such fees.
6. After considering that as per Article 12(4)(a) of the DTAA, the term 'fees' for technical services means payment of any kind to any person in consideration for services of a managerial, technical or consultancy nature including the provisions of such services through technical or other personnel of such services, clause (b) of sub-clause (4) to Article 12 made clear that " make available technical knowledge, experience, skill know-how or process, which involves the person acquiring the services to apply the technology contained therein", he was of the view that since the assessee company is acquiring the experience, skill etc. of the recipient company which is a fee for technical services as per Article 12(4)(b) of DTAA, the remittance of 23,400 US$ to M/s Jaakko Poyry (Asia Pacific) Pte. Ltd. was held to be taxable at the rate of 15% as per Article 12(2) of DTAA.7. Apart from that, he was of the view that since the tax chargeable was to be borne by the assessee, then for the purpose of deduction of tax, such payment shall be increased to such amount as would, after deduction of tax thereon at the prescribed rate, be equal to the net amount payable. As a result of this, the assessee was allowed to make the payment of 23,400 US$ to M/s Jaakko Poyry after deducting income tax at source at the rate of 17.65%.
8. Similarly, the Income Tax Officer, Special Ward 30(1), New Delhi, vide his order dated 3/2/95 made an identical order with respect to the payment to M/s. Jaakko Poyry (Asia Pacific) Pvt. Ltd., Singapore of 21,600 US$ and yet again on 8/2/95, an identical order was passed with respect to payment of 24,000 US$ net of taxes to M/s Jaakkoo Poyry (Asia Pacific) Pvt. Ltd. 9. In appeal before the first appellate authority, it was submitted on behalf of the assessee that the orders u/s 195(4)(1) are erroneous ion facts and in law. It was stated that the fact that the fee paid to the consultant was business profit in its hands and in the absence of any permanent establishment in India, it was not taxable in India.
Accordingly, the ITO was not correct in holding that the payment in question was fee for technical services and in directing that the deduction of tax at source a the rate of 17.65% on the amount of remittances to be made to Singapore. It was also stated that the services rendered by the consultant were technical in nature but no technical skill, knowledge, experience, know-how or process etc. was provided to the assessee company by the non-resident consultant.
Accordingly, the fee was not in the nature of "fee for technical services" within the meaning of Para (4)(b) of example 7 to identical DTAA with USA. It was also stated that as per the provisions of Section 10(6A) of the I.T. Act, there was no question of grossing up the tax being paid by the Indian concern. It was also stated that the non-resident company had been engaged to prepare a bankable report for the proposed project of Greenfield Coated Paper & Board Mill based on captive pulp to be set up in Maharashtra, India so as to enable to raise funds from the banks.
10. The DCIT(A), after considering the submissions of the assessee and supporting evidences filed on behalf of the assessee was of the view that the receipt of certain amounts by the non-residents and payment of the amounts were not in dispute and the main issue was with regard to the nature of the payments, deductibility or otherwise of tax at source and the quantum at which it was deductible, if deductible at all. As far as the applicability of the provision of the relevant DTAA, it was fully applicable with regard to the taxability of the said amount in the hands of the consultant u/s 5(2) of the Act was concerned, he was of the view that it is undisputable. He was also of the view that the applicability of the DTAA was the accepted stand. He further observed that as per Article 7, "business income" of a non-resident could be taxed in India if the consultant has a permanent establishment in India noting that the ITO has not indicated that the consultant had a permanent establishment in India or not, he accepted the submissions of the assessee that the recipient did not have any permanent establishment in India, the CIT(A) was of the view that thus the said amount could not be taxed in India.
11. Thereafter, with regard to the issue pertaining to the nature of the receipt of the consultant paid by the assessee, the CIT(A) observed as under :- "As per the above, the fee for technical services include the payment of any kind to any person for managerial, technical or consultancy services and it also includes providing above services through technical or other personnels. Under the facts and circumstances of case, also considering the observations of the ITO and his interpretation of the provisions of DTAA i.e article 12(4)(b), it does not appear that the appellant, who had only bankable report in respect of its proposed project or feasibility report as described by the ITO, was provided with the technical knowledge, experience, skill, know-how or processes through technical or other personnels as observed and interpreted by the ITO. Perusal of the report in question, which is essentially a study and an assessment of various factors for the proposed project to be set up by the appellant, the project was neither set up nor any production etc. Was done. It was merely at a preliminary stage. In view of the matter, though the fee is essentially a fee for professional services, within the definition of article 12(4)(b) of the relevant DTAA it could not be construed to be a fee for technical services as held by the ITO. Since this fee is a professional fees in the hand of the consultant, the contention of the appellant that it is the business profit of the consultant must be accepted as correct. As the business profit of the non resident consultant is not taxable in India as it does not have any permanent establishment in India as required under the relevant DTAA, other issues like deductibility or otherwise of tax at source after grossing up etc. become irrelevant now in view of above decisions." 13. learned DR invited our attention to Information Memorandum dated 12th December, 1994 between the 13. Learned and M/s Jaakko Poyry which read as :- "Sinar Mas Pulp and Paper (India) ltd has requested JAAKKO POYRY to prepare an information memorandum for the Company's planned new Greenfield mill near the city of Pune in the Maharashtra province with an annual capacity of close to 400,000 t/a. The document is designed to be used for the presentation of the project to financial institutions.
The memorandum includes a review of the project's fibre resources, technical and environmental aspects, markets and competitive environment, investment and operating cost, and financial returns.
We would like to thank the management of Sinar Mas Pulp and Paper (India) Ltd for their assistance in the preparation of the report, and their cooperation during the project." 14. Referring to the document which was placed on record by the assessee, the learned DR sought to highlight that the assessee had already got a Report prepared by its Indian Consultants. It was further contended that the report on this very aspect did not satisfy the foreign investors. Accordingly, the assessee engaged M/s Jaakko Poyry for preparing a feasibility study on the project to be used for the presentation of the project to the foreign investors and financial institutions. Our special attention was invited to the Project titled "Assessment of a Greenfield Paper Mill in Maharashtra Pune" dated August 1994 prepared for the assessee by the foreign concern. It was especially emphasized that what had been prepared for the assessee was bankable report for foreign investors which was complete with right from market prospects and pricing of the products, the grades to be produced to fiber supply and infrastructure mill organization and training as well as operating costs and cost competitiveness, capital requirement, financial returns and risks of the project etc.
15. Thus, adverting to the nature of the services rendered, it was contended that the payments made for such services are directly attracted under the DTAA and the AO was justified in law to direct the assessee to deduct TDS at the rate prescribed.
16. Our attention was invited to Article 7 Paras (1) & (7) of the same, Article 12 Para 2(b), Para (4), Para (5) & Para (7) was referred to at length. Out attention was also invited to Article 14 Para (1) & (2) of the same. On the analysis of the various Articles and Paras of the DTAA and looking at the exclusionary clause provided in Article 12 and Article 7 Para 7, the learned DR contended that the DCIT(A) was not justified on the facts of the case after holding that the nature of the payment to be professional services within the definition of Article 12(4)(b) at page 4 of the impugned order to decide the issue in favour of the assessee. It was vehemently contended that after coming to the said conclusion, there was no reason or basis for him to hold that it could not be construed as fee for technical services as held by the ITO since this fee is a professional fee in the hands of the recipient.
Thus, the argument was that the DCIT(A), on the facts, deciding the issue against the assessee was not justified in law to grant relief to the assessee. It was further contended by him that after holding that the nature of the payment to be professional services with the definition of Article 12(4)(b), there was no basis for the first appellate authority to give relief observing that the contention of the assesse has to be accepted as correct that it is a business profit of the consultant. Relying upon the provisions of DTAA, it was contended by the learned DR that the nature of the payment going by the feasibility report required to be made by the assessee and which was made for the assessee which fact has been decided against the assessee by the first appellate authority, thus, on the facts as they are, it was argued he was not justified in allowing the relief to the assessee.
17. Learned AR, on the other hand, placed reliance on the impugned order. It was contended by him that Article 12(4)(b) of DTAA was not applicable. When it was put to the learned AR that the DCIT(A) has held that the said Article is applicable to the case at hand which was not challenged by the assessee, the learned AR replied that notwithstanding the fact remained that the payment made was for obtaining the feasibility report which was not in any way used by the assessee. It was further put to the learned AR whether he had filed any cross objection. In response, it was submitted that there was no need to file cross objections. As such, no cross objection has been filed but nevertheless, reliance is placed upon the impugned order.
18. Inviting our attention to the agreement entered into with M/s Jaakko Poyry, heavy reliance was placed on the fact that the assessee already had the report prepared by its Indian Consultants and in view of the fact that the said report was not acceptable to the bankers of the foreign institutions, the assessee, per-force, had to obtain a feasibility report prepared by consultants of international repute which was to meet the requirements of the financial institutions.
Relying upon the provisions of Article 12(4)(b), it was his contention that the basic requirement is that if payments have been made to any person in consideration for managerial or technical or consultancy nature, then they are fee for technical services if such services make available technical knowledge, skill, know-how etc. which enables the person acquiring services to apply the technology contained therein.
Heavy reliance was placed on the fact that no technology had been obtained by the assessee from the services rendered and it was purely a feasibility report. It was further stated that had the payment been made u/s 9(1)(6) of the Act read along with the explanation, the said amount could have resulted in a situation where the assessee would have been liable to deduct tax. However, since in the facts of the case it was an admitted fact that the provisions of DTAA were applicable and further the foreign concern did not have a permanent establishment in India, the payment made was a business profit in the recipient's hands.
Thus, no TDS could be deducted thereon. Accordingly, the DCIT(A) was justified in the facts of the case to allow the appeal of the assessee.
Reliance was also placed upon the project report prepared by the said concern to show that it was purely a bankable feasibility report.
Various pages in the paper book were referred to in order to derive home the point that it was simply a Report aimed at foreign investors and the assessee already had in its possession a Project Report for the said Project.
19. Learned DR, in reply, submitted that looking at the project report prepared by the said concern, it is clear that it was the report on the basis of which the entire project was moved and it was not correct on the part of the assessee to argue that it was merely a bankable report because if the said argument was accepted, then it would have resulted in a situation that the assessee is trying to mislead its bankers and after securing investments would revert back to implementing the original report. It was also his contention that even if the foreign concern has virtually reproduced the original report of the assessee, even then they can be said to have provided consultancy as the fact that the feasibility report is stamped and produced under their name which acquires certain authenticity as the report of experts in their respective field. This gives the proposed project a certain degree of viability which would attract the foreign investors who were sough by the assessee. Thus, even if it was simply a case of lending a name to the Project Report of an expert which attracts investment, this itself would amount to a major service and the payment to such a consultant would require TDS to be deducted. However, referring to the specific facts of the present case where M/s Jaakko Poyry have gone on the prepare the report numbering 200 odd pages which have considered the aspect of technology and environment, cost analysis, fiber supply, market prospects and pricing etc., it cannot be argued that no services were provided by M/s Jaakko Poyry.
20. In reply, the learned AR submitted that the written submissions filed before the DCIT(A) may be considered which were also placed on record.
21. We have heard the rival submissions and perused the material placed on our filed and taken into consideration the various pages in the paper book referred to. At the outset, we would like to refer to the document titled as "Assessment of a Greenfield Paper Mill in Maharashtra, India" which was prepared for the assessee by M/s Jaakko Poyry (Asia Pacific) Pvt. Ltd. A perusal of page 2 of the said document shows that the preparation of a feasibility report was entrusted to M/s Jaakko Poyry on account of the following facts which have been discussed under the head "Background" which reads as under :- "Sinar Mas Pulp & Paper (India) Ltd. is a part of the Sinar Mas Group, which is the largest pulp and paper producer in Indonesia.
To develop off-take markets for its pulp production, the Group is planning to build a world-scale Greenfield coated woodfree and board mill in India based mostly on the captive pulp form Indonesia.
The company has conducted a feasibility study on the project, which indicates acceptable financial returns. To market the project to the financial community, Sinar Mas Pulp & Paper (India) Ltd. (Later the Client) has invited Jaakko Poyry Pvt. Ltd. (Later the consultant) to make an independent assessment of the project and to prepare a "bankable" report, which describes the project concept and its feasibility to potential financial parties." 22. The said document further comments upon the objectives of the said report which have been enumerated as under :- "The primary objectives of the report will be to wet the existing study by the India Consultant and to prepare an executive summary which will, give a clear, independent and understandable overview of the project to the banking community with no prior knowledge of the project. This will be achieved by addressing the following areas of the project: 23. Each of these objectives have been broken up under various sub-heads in paragraphs 3.1 to 3.9 of the said Report. Paragraph 4.3 of the said document further shows that the Consultants in their specific fields have been specially identified and named to whom the various sub-assignments of the project have been assigned. Paragraph 4.3 of this further reads as under :- "We have selected a qualified core team from our Singapore and Helsinki Offices that will channel all the Consultant's know-how and data bank information required into the project." 24. The specific assignments of the various sub-heads of the project earmarked to specific experts in this field is as under :- 25. Specific amounts in terms of dollars have also been identified vis-a-vis separate sub-heads of report which have been discussed in Clause (5).
26. After considering the same, it is imperative to consider the broad submissions made before the CIT(A) by the assessee on which heavy reliance has been placed by the assessee. A perusal of these written submissions shows that it is basically a reiteration of the facts as have been argued before the tax authorities as well as before us. Heavy reliance has been placed on the fact that the amount payable to the Consultant was in the nature of the business income in the hands of the Consultant on the basis of which, it was contended that the said income was not taxable in India since the Consultant had no permanent establishment in India. The contentions of the assessee have been as under :- "The technical personnel deputed by the Consultant have, while rendering technical services to bring to bear their technical knowledge, skill, experience, etc., but the same technical knowledge, skill and experience is not made available to the company. Therefore, consideration received by the consultant for services rendered cannot be taxed as fee for technical services under Article 12 of the Treaty." 27. At page 6 of the said submissions, the following contention has been raised :- "It may kindly be appreciated that the Consultant is engaged in the business of rendering services of the nature of survey and appraisal and preparation of the project report, feasibility report, etc. Any payment received by it for rendering services in these areas activities will therefore be of the nature of business income in the consultant's hands. As per clause (1) of Article 7 of the DTAA, business profits arising to the Singapore enterprise can be taxed in India only if that enterprise has a permanent establishment in India and to the extent such profits are attributable to that permanent establishment." 28. Having given our utmost consideration to the entire gamut of arguments, facts and submissions as well as the provisions of DTAA, we are of the view that no doubt M/s Jaakko Poyry does not have any permanent establishment in India but this fact by itself will not result in a situation that any and every payment made to a Consultant would be exempt under the DTAA.29. It would be appropriate to first consider the relevant provisions of the DTAA entered into between India and Singapore. Article 7 Para (1) of the same reads as under : "1. The profit of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is directly attributable to that permanent establishment." 30. Thereafter, it is necessary to examine Para 7 of Article 7 which provides a caveat in the following terms :- "7. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article." 31. Thereafter, the next relevant Article to be considered is Article 12 of the Agreement which specifically and separately deals with Royalties and fees for technical services. The same reads as under :- 1. Royalties and fees for technical services arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, such royalties and fees for technical services may also be taxed in the contracting State in which they arise and according to the laws of the State, but if the recipient is the beneficial owner of the royalties or fees for technical services, the tax so charged shall not exceed : a) in the case of royalties referred to in paragraph (3)(a) and fees for technical services as defined in this Article [other than services described in sub-paragraph (b) of this paragraph], 15% of the gross amount of the royalties and fees; b) in the case of royalties referred to in paragraph 3(b) an and fees for technical services as defined in this Article that are ancillary and subsidiary to the enjoyment of property for which royalties under paragraph 3(b) are received, 10% of the gross amount of the royalties and fees.
3. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of or the right to use : a) any copyright of a literary, artistic or scientific work, including cinematograph films or films or tapes used for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience, including gains derived from the alienation of any such right, property or information.
b) any industrial, commercial or scientific equipment, other than payments derived by an enterprise from activities described in paragraph 4(b) or 4(c) of Article 8.
4. The term "fees for technical services" as used in this Article means payments of any kind to any person in consideration for services of a managerial, technical or consultancy nature (including the provision of such service through technical or other personnel) 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 3 is received; or (b) make available technical knowledge, experience, skill, know-how or processes, which enables the person acquiring the services to apply the technology contained therein; or (c) consist of the development and transfer of a technical plan or technical design, but excludes any service-that does not enable the person acquiring the service to apply the technology contained therein.
For the purposes of (b) and (c) above, the person acquiring the service shall be deemed to include an agent, nominee, or transferee of such person.
5. Notwithstanding paragraph 4, "fees for technical services" does not include payments: (a) for services that are ancillary and subsidiary, as well as inextricably and essentially linked, to the sale of property other than a sale described in paragraph 3(a); (b) for services that are ancillary and subsidiary to the rental of ships, aircraft, containers or other equipment used in connection with the operation of ships or aircraft in international traffic; (d) for services for the personal use of the individual or individuals making the payment; (e) to an employee of the person making the payments or to any individual or firm of individuals (other than a company) for professional services as defined in Article 14; (f) for services rendered in connection with an installation or structure used for the exploration or exploitation of natural resources referred to in paragraph 2(j) of Article 5; 32. A perusal of Article 7 Para (1) clearly shows that the profits of business are to be taxed in the other state but only so much of them as is directly attributable to the permanent establishment. It is an admitted case that M/s Jaakko Poyry at the relevant point of time did not have any permanent establishment in India. Thus, there is no dispute over the issue that as far as Article 7 sub-article (1) is concerned, it has no role to play. Thus, on this issue, we are in agreement with the first appellate authority. A perusal of Para (7) of Article 7 shows that the DTAA clearly lays down that where profits include items of income which are dealt with separately in other Articles of the DTAA, then the provisions of this Article i.e. Article 7 shall not be affected. Thus, if any other Article of the DTAA has dealt with some items of income separately, then the requirement of a permanent establishment which is a sine quo non of Article 7 shall not be a necessity and then those items of income will be governed by those separate Articles of DTTA. After having his concluded, it is seen that a perusal of the DTAA leaves no doubt the Article 12 clearly deals with items of income which come under the head Royalty and Fees for Technical Services and the issue has to be decided purely on the basis of Article 12 of the DTAA.33. A perusal of Article 12 of DTAA which we have reproduced above further shows that according to Para 1, fees for technical services arising in a contracting state and paid to a resident of other contracting state may be taxed in that other state. Sub-Para (2) of Article 12 lays down that such fees for technical services may also be taxed in the contracting state in which they arise and according to laws of that state but if the recipient is the beneficial owner of the royalties or fees for technical services, the tax so charged shall not exceed the specified amount. Para (3) deals with Royalties with which we are not concerned in the present appeal. The term "fees for technical services" which is relevant to the issue at hand has been defined in Para (4) of Article 12 which lays down that payments of any kind made to any person in consideration for services of a managerial, technical or consultancy nature (including the provision of such services through technical or other personnel) 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 3 is received, this again is not relevant for the purposes of the present appeal; or (b) make available technical knowledge, experience, skill know-how or processes, which enables the person acquiring the services to apply the technology contained therein. The nature of payment made needs to be examined in the light of Article 12(4)(b). Clause (c) of Article 12(4), on the other hand, deals with situations if such services consist of the development and transfer of a technical plan or design etc. No arguments from either side have been addressed on this and nor any reference to it has been made in the orders of the tax authorities.
34. Para (5) of Article 12 further lays down that fees for technical services does not include payment of the services which are specified in clauses (a) to (g) therein. Thus, after fully examining the aforementioned articles and various paras as well as each of the exclusionary clauses considered in para 5 of Article 12, we are in agreement with the learned first appellate authority the after examining the nature of the services rendered by M/s Jaakko Poyry to the assessee that the payment made clearly and unquestionably comes under Para 4 of the clause (b) of Article 12. We have taken not of the fact that the concerned party i.e. M/s Jakko Poyry has clearly made available technical knowledge, experience, skill by way of the Project Report which was used to woo the foreign investors and as we have already discussed earlier, the detailed project report not only provides the rough road map but virtually provides the entire detailed design and map work. At the cost of reiteration, the project report not only lays down the mill site and infrastructure but also deals with mill organization and training, it takes care of the grades to be produced; the markets which will supply fiber to the mill, the technology and environment aspects have also been considered which would necessarily involve evaluating the environmental impact of the said plant and the environmental laws involved. The said report for which payment has been made also took care of the operating costs and cost competitiveness a well as the capital requirement of the said venture and financial returns and risks of the Project. Thus, looking at the nature of the services rendered, we have no doubt in coming to the conclusion that technical knowledge, experience and skill has been made available to the assessee for which payments have been made.
Accordingly, the action of the Assessing Officer was fully justified in facts and circumstances of the case and the CIT(A) was not justified in the facts of the case to hold that TDS on the said payment was not required to be deducted. After holding that the nature of the payment was essentially of the nature of fees for professional services according to Article 12(4)(b) of the DTAA, there was no basis for him to conclude that TDS provisions were not attracted.
35. Before concluding, we would again like to observe that in the course of the hearing, the learned Are appearing on behalf of the assessee was specifically put to notice whether the finding of fact arrived at by the CIT(A) that the provisions of Article 12(4)(b) were applicable have been contested by the assessee, learned AR submitted that he has accepted the finding and has not come in cross objection against the said finding and, in fact, was confident in defending the appeal on the basis of the fact that the Project Report was a bankable report obtained by the assessee. Heavy emphasis was laid on the fact that the assessee already had a project report prepared by the Indian experts which the foreign concern was merely required to vet. We have already observed in the earlier part of the order that the exercise of vetting the already existing Project Report amounts to making available services which are in the nature of technical knowledge, experience and skill and, as such, covered in Article 12(4)(b) of the DTAA. Thus, even by merely lending their names to the Project Report tantamount to saying that services which are in the nature of technical knowledge, experience and skill have rendered. Thus, it is eminently borne out that professional consultancy technical services have been made available by M/s Jaakko Poyry. As such, the action of the AO is fully justified in holding that the nature of services attracted TDS under the DTAA vide Article 12(4)(b). The CIT(A), on the other hand, has although upheld that Article 12(4)(b) is applicable but on consideration of an issue which was not relevant for deciding the issue at hand, he was not justified in concluding that the payment did not attract TDS under the provisions of DTAA. the finding of fact on the material on record that the nature of services are covered under Article 12(4)(b) has been decided against the assessee by the first appellate authority and the assessee has not come in appeal against the said finding which has been upheld by us. Accordingly, we uphold the order of the CIT(A) on this limited issue, namely, that Article 12(4)(b) is applicable and set aside his conclusion and uphold the action of the Assessing officer inasmuch as under the provisions of DTAA, the nature of the payment necessitated that tax be deducted at the rate specified. As such, the grounds raised by the Revenue are allowed.