2013 (9) TMI 689 - AT - Income Tax

Transfer pricing adjustments - PE - Assesee contended that AO had not passed the order as per the directions given by the DRP, that there was violation of provisions of section 144C(13) of the Act. Held that - Open defiance of the directions of the DRP by an adamant AO, non disposal of application of the assessee filed u/s. 154 of the Act and request of the assessee to direct the AO to follow the orders of the DRP unmistakably prove one thing that assessee has been compelled to approach the Tribunal because of the disobedience and inaction of the AO. Helplessness of the assessee is evident from the fact that it is ready not to press other grounds of appeal, if the AO is directed to act as per law. If even for its rightful claim an assessee has to approach a judicial forum, then it has to be held that AO had miserably failed in performing his duties. As a representative of the State, he is duty bound to collect only due taxes and not only taxes. On two counts behavior of the AO can be held to be perverse-first he did not obey the instructions of the panel and second he did not take any action with regard to the rectification application filed by the assessee Decided in favor of Assessee.

Issues Involved:
1. Disallowance of expenses debited to the Audited Profit and Loss Account of the India Permanent Establishment (PE).
2. Taxability of management consultancy fees for services rendered outside India.
3. Constitution of PE in India under Section 92F(iiia) of the Act for the deputation/assignment of employees.
4. Insufficient/adequate opportunity provided during the assessment proceedings.
5. Erroneous charging of interest under Section 234B of the Act.

Detailed Analysis:

Issue 1: Disallowance of Expenses

The assessee-company contested the disallowance of expenses amounting to Rs. 89,24,851 debited to the Audited Profit and Loss Account of the India PE. The AO disallowed these expenses, and the DRP did not provide specific directions regarding the objections raised by the assessee. The assessee argued that the AO and DRP failed to appreciate the Audited Financial Statement, documentary evidence, and explanations furnished during the assessment, including reasons for non-deduction of taxes and clarification on the absence of double claims of deduction. The Tribunal directed the AO to pass a fresh assessment order as per the directions of the DRP within 30 days.

Issue 2: Taxability of Management Consultancy Fees

The assessee challenged the taxability of consultancy fees amounting to Rs. 32,42,149 for services rendered outside India (in Kuwait). The AO taxed these fees as attributable to the Indian PE and as Fees for Technical Services (FTS) under Section 9(1)(vii) / 115A of the Act. The assessee argued that these services were rendered entirely outside India and are not attributable to the Indian PE nor deemed to accrue or arise in India under Section 9(1)(vii) of the Act. The Tribunal found that the DRP had issued directions to tax the amount received by the assessee as FTS, which the AO did not follow. The AO was directed to pass a fresh order in conformity with the DRP's directions.

Issue 3: Constitution of PE in India

The assessee contended that the AO erred in concluding that it has a PE in India under Section 92F(iiia) of the Act, and the DRP also erred in construing the income as FTS deemed to accrue or arise in India. The assessee submitted that the deputation/assignment of employees does not result in the provision of any services, and thus, it has neither constituted a PE in India nor can it be construed as FTS under the Act or the India-UK Tax Treaty. The Tribunal directed the AO to follow the DRP's directions and pass a fresh assessment order.

Issue 4: Insufficient/Adequate Opportunity

The assessee argued that the AO did not grant reasonable and sufficient opportunity before passing the draft order under Section 144C(1) of the Act, and the DRP did not give a decision on this point. The assessment order and the directions by the DRP were claimed to be in violation of the principles of natural justice. The Tribunal noted the open defiance of the DRP's directions by the AO and the non-disposal of the assessee's application under Section 154 of the Act. The AO was instructed to follow the DRP's directions and pass a fresh order.

Issue 5: Erroneous Charging of Interest

The assessee challenged the charging of interest amounting to Rs. 16,40,696 under Section 234B of the Act, arguing that as a non-resident company, it is not liable to pay advance tax under Section 208/209 of the Act since its entire income is subject to withholding tax in India. The Tribunal directed the AO to pass a fresh order in accordance with the DRP's directions.

Conclusion:

The Tribunal concluded that the AO failed to follow the DRP's directions and directed the AO to pass fresh assessment orders in conformity with the DRP's directions within 30 days. The appeals filed by the assessees were partly allowed.

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