Reopening of case alleging taxability of fee for technical services received from Indian counterpart under India-Thailand DTAA  - Absence of clause for taxing FTS in DTAA

Facts :

Assessee a Thailand entity as part of the consortium player delivered imported items outside India for Delhi Metro project (DMRC). They also provided certain technical services to their Indian counterpart - Bombardier Transportation India Limited. CIT invoked Section 263 and reopened the case of the assessee alleging that the AO has missed taxing the fee for technical services received from Bombardier India in the hands of the assessee non-resident, thus the order of the AO was prejudicial to the interests of the revenue. Plea of the assessee was that there was no article for taxing fee for technical services as per the Indo-Thai DTAA and accordingly the fee was taxable as business profits and in the absence of a PE the same could not be taxed. Thus there was nothing erroneous in the order of the AO. On further appeal by the assessee -

Held in favour of the assessee that the stand of the CIT was erroneous and the amounts were not taxable and the order of the AO/DRP did not suffer from any infirmities.

Applied : 

Bombardier Transportation Sweden AB v. DCIT (2021) 125 taxmann.com 277 (Del-Trib) : 2020 TaxPub(DT) 4606 (Del-Trib)

Case : Bombardier Transportation Signal (Thailand) Ltd. v. ACIT 2023 TaxPub(DT) 5568 (Del-Trib)