2010 (5) TMI 674 - AT - Income Tax

Summary

Issues Involved:
1. Whether the lease in question is a bareboat lease or wet lease.
2. Whether the income received by the assessee as royalty can be brought to tax under the Double Taxation Avoidance Agreement (DTAA).
3. Whether the assessee has a Permanent Establishment (PE) in India.
4. Levy of interest under section 234B of the Income-tax Act.

Issue-Wise Detailed Analysis:

1. Lease Classification: Bareboat Lease vs. Wet Lease
The core issue was whether the lease of the dredger "Sagar Manthan" was a bareboat lease or a wet lease. The assessee argued that the dredger was given on a bareboat basis to HAM, meaning HAM had full control, management, and operation of the dredger. The Assessing Officer (AO) contended it was a wet lease, implying the assessee retained control and provided the crew. The CIT (Appeals) and the Tribunal upheld the assessee's claim, noting substantial documentary evidence showing HAM managed and operated the dredger. The AO's conclusion was based on presumption without substantial evidence, and the Tribunal affirmed the CIT (Appeals)'s findings that the lease was indeed a bareboat lease.

2. Taxability of Royalty Income under DTAA
The Tribunal examined the amendments to Article 12 of the India-Netherlands DTAA, which excluded "payments for use of equipment" from the definition of royalty effective from 1-4-1998. Under the Indian Income-tax Act, such payments are considered royalty under section 9(1)(vi). However, due to the DTAA's amendments, these payments were not taxable as royalty. The Tribunal cited precedents, including the Chennai Bench's ruling in Van Oord ACZ Equipment BV, affirming that such payments, while considered royalty under domestic law, are exempt under the DTAA.

3. Permanent Establishment (PE) in India
The Tribunal addressed whether the assessee had a PE in India under Article 5 of the DTAA. The AO argued that the presence of the dredger and its crew in India constituted a PE. However, the Tribunal, referencing OECD commentary, concluded that merely leasing a dredger on a bareboat basis does not establish a PE. The assessee had no fixed place of business or personnel in India, and the dredger was operated entirely by HAM. Thus, the Tribunal upheld the CIT (Appeals)'s finding that the assessee did not have a PE in India.

4. Levy of Interest under Section 234B
The Tribunal noted that the issue of interest under section 234B was consequential. Since the primary grounds for taxability were resolved in favor of the assessee, the interest levy was rendered moot. The cross-objection by the assessee regarding the interest levy was dismissed as it was mandatory and consequential.

Conclusion:
- The Tribunal upheld the CIT (Appeals)'s findings that the lease was a bareboat lease.
- The income received as royalty was not taxable under the DTAA.
- The assessee did not have a PE in India.
- The levy of interest under section 234B was consequential and thus dismissed.

The appeals by the revenue were dismissed, and the cross-objection by the assessee was also dismissed.