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2012 (7) TMI 220 - AT - Income TaxIndo German DTAA - ISO 9000 certification income - Revenue contended part of the income to be taxable as per Article 12 of DTAA as royalty and fees for technical services and other part of income and expenses reimbursed which are linked with FTS, to be taxable, being part of gross receipts - applicability of Section 44D - assessee( German company) having a branch in India, engaged in the business of audit and procedure of norms for ISO 9000 Certification - Held that - The assessee s case does not in any manner comes within the meaning of royalties , as there is no right to use of any other items described therein. Further, services are mostly in the nature of audit work on basis of which certificate is granted. Nowhere from such services, it can be inferred that the assessee has been providing technical, managerial or consultancy services. Technical services require expertise in technology and providing the client such technical expertise which in this case no technology is transferred. Managerial services is used in the context of running and management of the business of the client, which herein this case, there is no management of client s business, but evaluation of standards as per international guidelines. Consultancy is to be understood as advisory services wherein necessary advise and consultation is given to its clients for the purpose of client s business. In an audit work there may be some incidence of advise at the time of evaluation but certainly it cannot be termed as pure consultancy services as in the audit work the auditor has to only evaluate the quality system and environmental system. Thus, the entire nature of services and activities carried out by the assessee comes within the realm of professional services and not within the meaning of FTS as provided in the Article 12(4) and Section 9(1)(vii). Consequently income cannot be determined by applying the provision of Section 44D. It has to be computed in view of the Article 7(1) and resultantly as per Section 28 to 43 of I tax Act - Decided in favor of assessee. Interest u/s 234B - Held that - When a duty is cast on the payer to pay the tax at source, on failure, no interest can be imposed on the assessee.
Issues Involved:
1. Classification of Certification Income as Fees for Technical Services (FTS). 2. Applicability of Section 44D. 3. Applicable Rate of Tax. 4. Levy of Interest under Section 234B. Detailed Analysis: 1. Classification of Certification Income as Fees for Technical Services (FTS): The primary issue was whether the assessee's income from 'ISO 9000 Certification' should be classified as 'fees for technical services' under Article 12 or as business income under Article 7 of the Indo-German DTAA. The assessee, a German company with a branch in India, argued that the services provided were purely audit work and did not involve managerial, technical, or consultancy services. The Assessing Officer (AO) contended that these services fell under FTS as per Article 12 of the Indo-German DTAA and Section 9(1)(vii) of the IT Act. However, the Tribunal concluded that the services rendered were in the nature of 'professional services' and not 'FTS'. It was noted that the audit work involved evaluating the client's quality system against international standards, without providing technical assistance or consultancy. Hence, the Tribunal held that the income should be computed under Article 7(1) as business income, not under Article 12 as FTS. 2. Applicability of Section 44D: The AO applied Section 44D, which deals with the computation of income in cases involving FTS, leading to the application of a higher tax rate. The Tribunal, however, determined that since the services did not qualify as FTS, Section 44D was not applicable. Instead, the income should be computed under Section 28 to 43 of the IT Act, as per the provisions of Article 7(1) of the DTAA. 3. Applicable Rate of Tax: The AO applied a 20% tax rate on the entire gross receipts, as per Section 115A, which pertains to FTS. The assessee argued for a 10% rate under Article 12(2) of the DTAA. Given the Tribunal's decision that the income was not FTS, the discussion on the applicable tax rate became moot. The income was to be taxed as business income, not under the provisions applicable to FTS. 4. Levy of Interest under Section 234B: The assessee contested the levy of interest under Section 234B, arguing that as a foreign company with income subject to tax deduction at source (TDS), it was not liable to pay advance tax. The Tribunal agreed, referencing the jurisdictional High Court's decision in Director of Income Tax (International Taxation) v. NGC Network Asia LLC, which held that no interest under Section 234B can be imposed when the payer is responsible for TDS. Consequently, the Tribunal directed the AO to delete the interest charged under Section 234B. Conclusion: The Tribunal ruled in favor of the assessee on all counts. The income from ISO 9000 Certification was classified as business income under Article 7 of the DTAA, not as FTS under Article 12. Consequently, Section 44D was not applicable, and the income was to be computed under Section 28 to 43 of the IT Act. The issue of the applicable tax rate was rendered academic. The Tribunal also directed the deletion of interest levied under Section 234B. The appeals for both assessment years were allowed.
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