1995 (8) TMI 315 - AAR - Income Tax

Summary

Issues Involved:
1. Determination of residency status of ABC under Article 4 of the DTAA.
2. Constitution of a permanent establishment (PE) in India under Article 5 of the DTAA.
3. Nature of payments as "royalty" and/or "fees for technical services" under Articles 13.3 and 13.4 of the DTAA.
4. Effective connection of activities outside India with the PE in India.
5. Beneficial ownership of royalties and technical fees under Article 13.6 of the DTAA.
6. Taxability of payments under Article 13.2 and Article 7 of the DTAA.
7. Attribution of profits to activities inside India under Articles 7.1 and 7.2 of the DTAA.
8. Restrictions on profit computation under Article 7.3(a) of the DTAA.
9. Deductibility of payments to the head office under Article 7.3(b) of the DTAA.
10. Withholding tax obligations under the Income-tax Act of India.
11. Computation of profits under the head "Profits and gains of business or profession" and applicability of section 115A of the Act.

Summary of Judgment:

Question No. 1:
ABC is a "person resident in France" within the meaning of Article 4 of the DTAA. ABC is liable to tax in France on account of its residence and place of management being in France, making it a resident of France for DTAA purposes.

Question No. 2:
The project head office (PHO) and project site office (PSO) of ABC in India will constitute a permanent establishment (PE) within the meaning of Article 5 of the DTAA from the first day of commencement of its business in India. ABC will be carrying on business through a PE in India once these offices are set up.

Question No. 3:
The payments made to ABC by XY under the various agreements will be in the nature of "royalties" and/or "fees for technical services" within the meaning of Articles 13.3 and 13.4 of the DTAA.

Question No. 4:
The royalties and fees for technical services in relation to the outside activities of ABC are effectively connected with the permanent establishment of ABC in India.

Questions Nos. 5 and 6:
ABC will be considered as the beneficial owner in terms of Article 13.6 of the DTAA of the royalties and technical fees received by it from XY in respect of the licence, technology, basic engineering procured, engineering services, and buying services sub-contracted to its worldwide affiliates and/or third parties.

Question No. 7:
The payments under the agreements will be taxable under Article 7 read with Article 13.6 of the DTAA.

Question No. 8:
In terms of Articles 7.1 and 7.2 of the DTAA read with paragraph 3 of the Protocol, only the profits of ABC attributable to the operations carried out by its permanent establishment in India will be liable to tax.

Question No. 9:
The words "in accordance with the provisions of and subject to the limitations of the taxation laws of the Contracting State" used in Article 7.3(a) of the DTAA would attract, in the computation of the profits under Article 7, the limitations and restrictions not merely of section 44C of the Act but of all other provisions contained in the Act as well.

Questions Nos. 10 and 11:
In view of Article 7(3)(b) of the DTAA, the payments made by the permanent establishment to the head office for procuring licence technology and basic engineering services, and in respect of engineering services and buying services sub-contracted by the head office, cannot be considered as reimbursement and will, therefore, not be deductible in computing the profits of the permanent establishment in India.

Question No. 12:
The head office of ABC will not be liable to withhold taxes under the Income-tax Act of India in respect of payments made by it to foreign suppliers (including ABC affiliates and sub-contractors) of goods, services, and technologies.

Question No. 13:
(a) If the contract and agreements between ABC and XY do not receive the approval of the Government of India under section 115A of the Act, the profits of the permanent establishment in India will have to be computed as profits and gains of business under Part D of Chapter IV of the Act and brought to tax at the rates applicable to the total income of a foreign company.

(b) If the contract and agreements are approved by the Government of India, such profits will be computed as mentioned above but will be charged to tax at 30% on the amount of royalties and fees for technical services included therein and, at the rate applicable to a foreign company, on the balance thereof, if any.

(c) However, in either of the above events, the provisions of sections 44D and 115A shall not be applicable in respect of that part of the receipts of ABC which represent payments in consideration of services under the agreements relating to construction, assembly, or like project, resulting in only the net amount of such part of the receipts (after deduction of expenses permissible against them under sections 28 to 44C or section 57 of the Act) being assessable to tax and that such net amount will be assessable not at the rate of 30% but at the rate of income-tax applicable to such income in the hands of a foreign company.