9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2010 (6) TMI 524 - AT - Income TaxDTAA - Referring to Sec.9(1)(vii) of the IT Act, the learned departmental representative submitted that all types of payment constitute fees for technical services, therefore no deduction of any expenses would be allowed in case the assessee receives any amount in the guise of reimbursement of expenditure - From the above clauses of the agreement it is obvious that the expenditures narrated above are to be reimbursed to the assessee by NHAI in foreign currency and in local currency - Therefore, the expenditure reimbursable by the NHAI is the liability of the NHAI and not that of the assessee - this reimbursable expenditure cannot form part of the fee payable for technical services A per diem allowance for each of the export personnel for every day in which such personnel shall be absent from his home office and shall be outside India for the purpose of service at the daily rates - As a part of the arrangement the US company leases to the Indian company a piece of equipment which allows the Indian company to ensure the level of bacterial deposit on its machinery in order for it to which when cleaning is required - Accordingly, the cleaning services are not included services within the meaning of paragraph 4(a) Regarding 115A - In fact, the expenditure incurred by the assessee in the course of carrying on its activities in India cannot be deducted in view of section 115A(3) - Therefore, section 115A(3) also has no application at all As observed by the CIT(A), fee received by the assessee towards technical services/ consultancy would fall under Article 12 and not under Article 7 - In the result, all the appeals of the Revenue stand dismissed
Issues Involved:
1. Reimbursable Expenditure as Part of Fees for Technical Services 2. Reimbursement of Service Tax 3. Rate of Tax under DTAA and Section 115A 4. Levy of Interest under Section 234B Detailed Analysis: 1. Reimbursable Expenditure as Part of Fees for Technical Services The primary issue was whether reimbursable expenditure received by the assessee forms part of the fees for technical services under Article 12 of the Double Taxation Avoidance Agreement (DTAA) between India and the USA and Section 9(1)(vii) of the Income Tax Act, 1961. The Tribunal examined the agreement between the assessee and the National Highway Authority of India (NHAI), which clearly differentiated between fees for consultancy services and reimbursable expenditures. The Tribunal concluded that reimbursable expenditures are the liability of the NHAI and not the assessee. These expenditures are incurred by the assessee on behalf of NHAI and are reimbursed as per the agreement, thus not forming part of the fees for technical services. The Tribunal supported its conclusion by referencing various judgments, including the Delhi High Court's ruling in CIT vs. Industrial Engineering Projects Pvt. Ltd., and the Bombay High Court's judgment in CIT vs. Tanubai D. Desai, which held that reimbursable expenditures do not constitute income. 2. Reimbursement of Service Tax The Tribunal addressed the issue of whether the reimbursement of service tax forms part of the taxable income of the assessee. The agreement between the parties stipulated that service tax payable shall be reimbursed separately upon production of the original receipt. The Tribunal held that service tax is a statutory levy on the person who avails the service and not an expenditure incurred by the assessee. Therefore, reimbursement of service tax cannot form part of the taxable income. The Tribunal distinguished the case from the Calcutta High Court judgment in Chowranghie Sales Bureau Pvt. Ltd. and the Supreme Court judgment in Sinclair Murray & Co. Pvt. Ltd., where sales tax collected but not paid to the government was considered part of the trading receipt. In this case, the service tax was reimbursed after being paid to the government, thus not forming part of the fee for technical services. 3. Rate of Tax under DTAA and Section 115A The Tribunal examined the applicable rate of tax on fees for technical services under the DTAA and Section 115A of the Income Tax Act. The CIT(A) had ruled that tax should be levied at 15% under Article 12 of the DTAA, not 20% under Article 7. The Tribunal upheld this decision, noting that the fee received by the assessee towards technical services/consultancy falls under Article 12, which specifies a tax rate of 15%. 4. Levy of Interest under Section 234B The Tribunal addressed the issue of whether interest under Section 234B of the Income Tax Act was applicable. The assessee argued that all payments were received from the government or its agencies and were subjected to tax deduction at source under Section 195. The Tribunal referenced the Mumbai Bench's decisions in Lavelin International Inc. and Kaiser Aluminium Technical Services Inc., which held that there is no liability to pay advance tax when tax is deducted at source. The Tribunal also cited the Special Bench decision in Sumit Bhattacharya, concluding that interest under Section 234B was not chargeable in this case. Conclusion: The Tribunal dismissed all appeals of the Revenue, confirming that reimbursable expenditures and service tax reimbursements do not form part of the taxable income, the applicable tax rate is 15% under Article 12 of the DTAA, and interest under Section 234B is not applicable when tax is deducted at source.
|
