2011 (9) TMI 482 - HC - Income Tax

Income deemed to accrue or arise in India - Foreign Co. engaged in the business of manufacture and sale of power transmission cable and related equipments entered into off-shore supply and on-shore erection testing, commissioning, etc. of Fiber Optic Cabling System for power transmission in different geographical regions of India - For Indian operation tax were paid and not for foreign - For Indian operation only assessee had appointed agents - AO and CIT(A) argued Income for both On shore - Of shore agreements have accrued in India and contract is a Composite one - Held That - Tribunal is correct in holding Stipulation in the on-shore contact relating to certain performances by the assessee including port handling, customs clearance, transportation, insurance, handling on site, unloading at transportation site, testing and commission to the satisfaction of the buyer are under a separate agreement for a separate consideration . No substantial question of law.

Issues Involved:
1. Taxability of offshore supply of equipment.
2. Application of Section 9 of the Income Tax Act.
3. Existence of a business connection in India.
4. Attribution of income to operations carried out in India.
5. Role of Indian agent as a Permanent Establishment.
6. Levy of interest under Section 234B for short deduction of TDS.

Detailed Analysis:

1. Taxability of Offshore Supply of Equipment:
The primary issue is whether the income from the offshore supply of equipment is taxable in India. The assessee, a Korean company, entered into contracts with Power Grid Corporation of India Limited (PGCIL) for both offshore supply and onshore services. The Assessing Officer (AO) attributed 50% of the income to operations carried out in India under Section 9 of the Income Tax Act and Article 7 of the Double Taxation Avoidance Agreement (DTAA) between India and Korea. However, the Tribunal followed the precedent set in the case of Ishikawajma-Harima Heavy Industries Co. Ltd., where it was held that offshore supplies are not taxable in India if the transfer of property and payment occur outside India.

2. Application of Section 9 of the Income Tax Act:
Section 9(1)(i) of the Act states that income accruing or arising, directly or indirectly, through or from any business connection in India is taxable in India. However, Explanation 1(a) restricts this by stating that only the income attributable to operations carried out in India is taxable. The Tribunal found that the offshore supply contracts were executed entirely outside India, and thus, the income from these supplies could not be taxed in India.

3. Existence of a Business Connection in India:
The AO and CIT (A) argued that the assessee had a business connection in India through its Indian agent, M/s. Alpasso Industries Pvt. Ltd., which constituted a Permanent Establishment (PE). However, the Tribunal noted that M/s. Alpasso Industries was involved only in onshore activities and had no role in offshore supplies. The Supreme Court in Ishikawajma-Harima clarified that a PE must be involved in the activity giving rise to the profits for the income to be taxable in India.

4. Attribution of Income to Operations Carried Out in India:
The Tribunal held that the income from offshore supplies could not be attributed to operations in India. The delivery of goods and receipt of payment occurred outside India, and the Indian agent's role was limited to onshore services. Therefore, the income from offshore supplies did not accrue in India.

5. Role of Indian Agent as a Permanent Establishment:
The Revenue contended that the Indian agent, M/s. Alpasso Industries, constituted a PE. However, the Tribunal found that the agent's role was limited to administrative coordination and liaison for onshore activities. The offshore supply contract was independent, and the agent did not contribute to the offshore operations. Thus, the agent did not constitute a business connection or PE for offshore supplies.

6. Levy of Interest under Section 234B for Short Deduction of TDS:
The Tribunal's earlier decision in the case of LG Cable Ltd. addressed the issue of interest under Section 234B, concluding that the levy of interest for short deduction of TDS was not applicable. This was upheld by the High Court, which found no reason to deviate from the earlier judgment.

Conclusion:
The High Court dismissed the Revenue's appeals, affirming the Tribunal's decision that the income from offshore supplies was not taxable in India. The court reiterated that the offshore supply contract and onshore service contract were independent, and the Indian agent's role was limited to onshore activities. The principles laid down in Ishikawajma-Harima were applied, confirming that the income from offshore supplies did not accrue in India and was not subject to Indian tax laws.

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