The Tribunal held that the Belgium company is not ‘making available’ its technical knowledge,
expertise skill or know how to the assessee in the course of issuing gradation certificate, the
payment cannot be characterize as fees for technical services. Taxability of a sum in the hands of
recipient on account of subsequent retrospective amendment would not expose the payer of income to an impossible situation of requiring deduction of tax at source on the anterior date of payment of such income. Thus on this count also assessee cannot be held to be in default for not deducting the tax at source. Disallowance was rightly deleted by CIT(A). (AY. 2008-09)