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2012 (7) TMI 656 - AT - Income TaxFees for Included Services in terms of Article 12 of the India US treaty - appellant has not made available technical skill, Knowledge etc. to Lucent. - held that - The assessee has not been able to produce the records to show the total number of employees employed with Lucent, amount of salary paid and the terms and conditions between the employees and the assessee. In absence of any details, we do not find any merit on this aspect of the matter that technical personnel supplied by the assessee are not its employees, especially in the light of the agreement as have been referred to above which clearly negates the contention of the assessee. The assessee has requisite and technical skills in providing solutions in technology relating to telecom sector. The Lucent, an Indian company wants technical experts, who have experience and skill, which here in this case undoubtedly belongs to the assessee, for its purpose of contract for commissioning and supply of telecom equipments in India. These services clearly fall within the illustration given in the Example 3 and, hence, the services rendered by the assessee falls within the clause 4(b) of Article 12 of the Treaty. Therefore, we hold that the payment received by the assessee from Lucent is taxable in India under Article 12 as fees for included services.
Issues Involved:
1. Taxability of Fees for Included Services (FIS) under Article 12 of the Indo-US DTAA. 2. Nature of services provided by the assessee and whether they qualify as Fees for Technical Services under Article 12 of the Indo-US DTAA. 3. Taxation of gross receipts without reducing the amount due to the technocrats as pure reimbursement. Detailed Analysis: Issue 1: Taxability of Fees for Included Services (FIS) under Article 12 of the Indo-US DTAA The core issue in this appeal is whether the receipts of Rs. 2,14,33,555/- received by the assessee, a non-resident company, from Lucent Technologies Hindustan (Pvt.) Ltd, an Indian company, for services provided, are taxable in India under Article 12 of the Indo-US DTAA. The Assessing Officer scrutinized the transactions to determine if the income should be classified as "Fees for Included Services" (FIS) under Article 12, which is taxable, or as business profits, which are not taxable due to the absence of a permanent establishment (PE) in India. The AO concluded that the services provided by the assessee made available technical knowledge, expertise, skill, and know-how, thus falling under the ambit of FIS. Issue 2: Nature of Services Provided by the Assessee and Qualification as Fees for Technical Services The assessee argued that its role was limited to locating technocrats outside India and providing them to Lucent, who would then work under Lucent's supervision and control. The assessee contended that the agreement was for providing technical manpower without any responsibility or control over these persons. However, the AO noted that the manpower supplied was termed as "Temporary Worker" and that the assessee retained control, payment responsibility, and other employment-related responsibilities, indicating that the technocrats were employees of the assessee. The agreement's clauses suggested that the contract involved outsourcing of Lucent's project responsibilities, including selecting materials and guaranteeing raw materials, which led the AO to conclude that the services made available technical knowledge and expertise, thus qualifying as FIS under Article 12. Issue 3: Taxation of Gross Receipts Without Reducing the Amount Due to Technocrats The assessee contended that the gross receipts should not be taxed without reducing the amount due to the technocrats, which were pure reimbursements. The AO, however, treated the entire receipts as taxable income under Article 12 of the Indo-US DTAA. Conclusion: The CIT(A) confirmed the AO's findings, concluding that the payments received by the assessee from Lucent fell within the ambit of FIS under Article 12 of the Indo-US DTAA. The Tribunal upheld this view, noting that the services provided by the assessee made available technical knowledge, experience, skill, and know-how to Lucent, thereby making the receipts taxable as FIS. The appeal by the assessee was dismissed, affirming that the payments received were taxable in India under Article 12 as fees for included services.
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