2011 (7) TMI 99 - AAR - Income Tax

Advance ruling - Consortium agreement - Application u/s 245R(2) - Taxability of the off-shore sales by LS Cables to the applicant - Applicant transfer the goods by LS Cables Korea to the applicant being outside India there is no territorial nexus for taxation regarding those off-shore supplies - It is pointed out that the applicant after obtaining the goods from LS Cables Korea sells them to KPTCL for consideration - For its on-shore activity including the sale it is taxed in India. Learned Counsel specifically requested as to note that sale by the applicant to KPTCL is taxed in India since it is taxable in India and that part of the contract is not involved in this application - It is submitted that in the light of the decision of the Supreme Court in Ishikawajima Harima Heavy Industries V/s DIT 2007 (1) TMI 91 - SUPREME COURT the questions raised by the applicant have to be ruled in favour of the applicant - Decided in favour of assessee.

Summary

Issues:
Tax liability on offshore supplies of equipment by a non-resident company to an Indian company; Requirement of tax deduction at source by the Indian company on payments to the non-resident company.

Analysis:
The case involved an Indian company forming a consortium with a Korean company to bid for tenders for setting up transmission lines. The consortium won the contract, and separate contracts were awarded to the Indian company under different Letters of Award. The Indian company approached the Advance Ruling Authority regarding the tax liability on offshore supplies by the Korean company and the requirement of tax deduction at source by the Indian company.

The Indian company argued that since the goods were transferred by the Korean company outside India and the Indian company was taxed for its onshore activities, there was no territorial nexus for taxation on the offshore supplies. The Indian company relied on a Memorandum of Understanding and a Supreme Court decision in a similar case to support its position. The Revenue representative contended that the division of responsibility between the consortium partners was not relevant, and the source of income was crucial for determining tax liability. The Revenue also questioned the correctness of the Supreme Court decision cited by the Indian company.

The Advance Ruling Authority emphasized that it was bound by the law laid down by the Supreme Court unless there was an attempt to avoid tax. The Authority noted that the Indian company was being assessed and taxed for its sales to the local corporation, while the issue at hand was the taxability of offshore sales by the Korean company to the Indian company. Considering the Supreme Court decision and the facts presented, the Authority ruled in favor of the Indian company on both questions regarding tax liability on offshore supplies and the requirement of tax deduction at source.

In conclusion, the Advance Ruling Authority decided in favor of the Indian company, ruling that the offshore supplies by the Korean company to the Indian company were not liable to tax in India, and no tax deduction at source was required by the Indian company on payments to the Korean company.