2012 (7) TMI 277 - AT - Income Tax

Apportionment of income - CIT(A) held that the computers of the travel agents in India constitute a fixed place of business under Article 5(1) of the DTAA - CIT(A) restricted the attribution of the revenue attributable to the PE in India to 15% - Held that - An estimate of 15% ratio fixed 10 years back cannot be applied now in the name of consistency especially keeping in view the increase in globalization increase in Indian passengers originating from India and the facts that assessee is not in losses - the Income tax proceedings are applicable from year to year depending upon facts of each year and principle of res judicata do not ordinarily apply to income tax proceedings - Estimate of 10 back years cannot said to be applicable for years to come without considering the change in facts and circumstances. The estimation of profits attributable to Indian operations should ideally be based upon number of bookings originating from India viz-a-viz total bookings in a particular year and consideration of global accounts - remit the matter back to the file of the AO for fresh consideration by adopting a reasonable and commercial test for estimation of business attributable to India and net taxable income which could have been said to have accrued to appellant due to bookings from India - in favour of revenue.

Summary

Issues Involved:
1. Attribution of revenue to Permanent Establishment (PE) in India.
2. Validity of assessment under Section 148.
3. Taxability under the Income Tax Act.
4. Application of Double Taxation Avoidance Agreement (DTAA) between India and the Netherlands.
5. Attribution of income and deduction of expenses.
6. Apportionment of income.
7. Interpretation of the Act and relevant agreements.
8. Denial of allegations.
9. Credit for prepaid taxes.
10. Withdrawal of interest under Section 244A.
11. Penalty proceedings under Section 271(1)(c).

Issue-wise Detailed Analysis:

1. Attribution of Revenue to PE in India:
The primary issue was whether the revenue attributable to the PE in India should be restricted to 15% as determined by the CIT(A) or 75% as determined by the Assessing Officer (AO). The AO held that a major part of the business activity leading to profit generation was attributable to the PE in India, whereas the CIT(A) restricted this attribution to 15% based on previous ITAT rulings. The ITAT, considering the changes in globalization and the increase in Indian operations, remitted the matter back to the AO for fresh consideration based on a reasonable and commercial test for estimating business attributable to India.

2. Validity of Assessment under Section 148:
The assessee argued that the assumption of jurisdiction by the ACIT under Section 148 was illegal, invalid, null, and void as the jurisdictional conditions precedent for a valid assumption of jurisdiction under Section 148 were not fulfilled. The CIT(A) had erred in holding the order to be valid. This issue was not specifically addressed in the final judgment, implying it was not a decisive factor in the outcome.

3. Taxability under the Income Tax Act:
The assessee contended that it did not have any income taxable in India as per the provisions of the Act. The CIT(A) and the ITAT, however, held that the assessee had a business connection in India and income from bookings made from India was deemed to accrue or arise in India, making it taxable under Section 9(1)(i) of the Act.

4. Application of DTAA between India and the Netherlands:
The AO and CIT(A) held that the assessee had a PE in India under Article 5 of the DTAA. The ITAT upheld this view, noting that the computers and configuration provided by the assessee to subscribers in India constituted a fixed place PE, and the distributor in India was a dependent agent PE under Article 5(4)(a) of the DTAA.

5. Attribution of Income and Deduction of Expenses:
The AO attributed 75% of profits generated from Indian operations to the PE in India, while the CIT(A) restricted this to 15%. The ITAT directed the AO to adopt a reasonable and commercial test for estimating business attributable to India and net taxable income. The ITAT also noted that the remuneration paid to the distributor in India could extinguish the tax liability.

6. Apportionment of Income:
The ITAT observed that the estimation of profits attributable to Indian operations should be based on the number of bookings originating from India vis-`a-vis total bookings and global accounts. The matter was remitted back to the AO for fresh consideration.

7. Interpretation of the Act and Relevant Agreements:
The ITAT noted that the principles of res judicata do not apply to income tax proceedings, and each year must be assessed based on its facts. The ITAT directed the AO to consider the global accounts of the assessee for a fair estimation of income attributable to Indian operations.

8. Denial of Allegations:
The assessee denied various allegations made by the AO, including having a branch in India and the nature of operations in India. These denials were noted but did not significantly impact the final judgment.

9. Credit for Prepaid Taxes:
The issue of granting full credit for prepaid taxes was raised but not specifically addressed in the final judgment.

10. Withdrawal of Interest under Section 244A:
The withdrawal of interest under Section 244A was contested but not adjudicated upon in the final judgment.

11. Penalty Proceedings under Section 271(1)(c):
The initiation of penalty proceedings under Section 271(1)(c) was contested but not specifically addressed in the final judgment.

Conclusion:
The ITAT remitted the matter back to the AO for fresh consideration regarding the attribution of income to the PE in India, directing the AO to adopt a reasonable and commercial test for estimation. The cross objections filed by the assessee were dismissed as not pressed. The appeals filed by the revenue were allowed for statistical purposes.