The AO in made disallowance of u/s. 40(a)(i) by holding that payment made to Dr. WS is a payment towards ‘fees for technical services’ as per Explanation 2 to S.9(1)(vii) and thus liable for deduction of tax at source u/s 195. He did not accept the contention of the assessee that payment is for ‘independent scientific activity’ covered by the Article 14 of the DTAA with Switzerland and thus not liable for deduction of tax at source u/s.195. CIT(A) upheld the AO order.

Tribunal held that, the same is a covered issue in the case of the assessee for AY. 2009-10 wherein it was held that it is apparent that the services are covered under Article 14 of the DTAA and not under Article 12 of DTAA. Further it is not the case of the Revenue that the services provided by the Swiss resident is not professional services as defined under Article 14(2) of DTAA. Further, it is not the case of the Revenue that such services are provided by him from its fixed base in India or he has stayed for more than 183 days in India. Therefore, no tax is required to be deducted on payment made to Dr. WS who is a resident of Swiss Confederation. Therefore, those services are independent, personal services in the nature of independent scientific services shall be taxable only in Swiss confederation. Hence, no tax is required to be deducted on sum paid by the assessee to Dr. WS u/s 195. Therefore, the appeal is allowed. (AY. 2012-13)