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2013 (7) TMI 725 - AT - Income TaxAmount received from the Assessee to be treated as Royalty under Article 12 of the DTAA Held that - The crucial words used in para 4 of the Article 12 of the DTAA are, the consideration for the use of or right to use .. . It therefore, becomes vivid that in order to cover any amount within the purview of royalties as per Article 12 (4) of the DTAA, it is imperative that the payment must be a consideration for use or right to use any copyright of the literary artistic work etc. or any patent, trademark etc. (collectively referred to as the defined property ). Payment can be made as a consideration for the use or right to use of the defined property only when such property is in existence at the time of use. If a property does not pre-exist or is likely to come into existence because of the given payment, the same cannot qualify as royalties because it would, in such circumstances, lack the condition of use or right to use . In other words, the term royalties as per article 12(4) contemplates a consideration for the use of or right to use of the defined property which is already in existence and the payment is agreed for its use or right to use. If the payment made is of such a nature which helps in the creation of the defined property, that cannot fall within the ambit of Article 12(4) of the DTAA. When admittedly contribution at the rate of 1.5% by AHL to the assessee, amounting to Rs. 38.59 lacs, is towards marketing activities, it can not be characterized as royalties falling within the ambit of Article 12 of the DTAA Decided in favor of Assessee.
Issues Involved:
1. Classification of payments under the Franchise Agreement and International Sales & Marketing Agreement (ISMA) as "Royalty" or "Reimbursement of expenses". 2. Taxability of the payments received under Articles 3.2 and 3.3 of the Agreement in India. Detailed Analysis: Issue 1: Classification of Payments as "Royalty" or "Reimbursement of Expenses" The Revenue challenged the CIT(A)'s decision that payments made under Article 3.2 and 3.3 of the Franchise Agreement and ISMA were purely reimbursements for sales promotion and marketing expenses and not "Royalty" taxable in India. The Assessing Officer (AO) initially classified the entire payment of Rs. 90,06,525 as "Royalty" under Article 12(4) of the Double Taxation Avoidance Agreement (DTAA) between India and Netherlands, arguing that it was for the use of the brand "Marriott" and related marketing activities. The CIT(A) bifurcated the payment, holding the amount under Article 3.1 as "Royalty" and the amounts under Articles 3.2 and 3.3 as reimbursements. Issue 2: Taxability of Payments under Articles 3.2 and 3.3 The Tribunal examined the nature of the payments under Articles 3.2 and 3.3. Article 3.2 required the Franchisee to contribute 1.5% of gross revenues to the International Marketing Fund, used for international marketing activities outside India. Article 3.3 involved reimbursement for special advertising costs. The Tribunal analyzed whether these payments could be characterized as "Royalties" under Article 12(4) of the DTAA, which defines royalties as payments for the use of, or the right to use, any copyright, trademark, or similar property. The Tribunal noted that "royalties" under Article 12(4) require the payment to be for the use of an existing property. Since the payments in question were contributions towards marketing activities aimed at creating or enhancing the brand "Marriott," they could not be classified as royalties. The Tribunal found that these contributions were not for the use of an existing property but for the creation of marketing materials and activities, thus falling outside the scope of "royalties." The Tribunal also addressed the CIT(A)'s classification of these payments as "reimbursements." It highlighted that for an amount to be considered a reimbursement, it must be a direct recovery of expenses without any profit element. The fixed contribution of 1.5% of gross revenues did not equate to actual reimbursement of expenses, as it could include a profit element. Conclusion and Remand The Tribunal concluded that the payments under Articles 3.2 and 3.3 could not be classified as "royalties" under Article 12(4) of the DTAA. It also found that the CIT(A)'s classification of these payments as reimbursements was not substantiated. Consequently, the Tribunal remitted the matter to the AO to determine the taxability of these payments under Article 7 of the DTAA, which deals with business profits and requires consideration of whether the payments were attributable to a permanent establishment in India. Summary: The Tribunal ruled that payments under Articles 3.2 and 3.3 of the Franchise Agreement and ISMA were not "royalties" as per Article 12(4) of the DTAA because they were contributions for marketing activities and not for the use of an existing property. The Tribunal also found that these payments could not be classified as reimbursements without evidence that they equaled the actual expenses incurred. The matter was remitted to the AO to assess the taxability of these payments under Article 7 of the DTAA, considering the presence of a permanent establishment in India.
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