2013 (11) TMI 1368 - AT - Income Tax

Consultancy charges Tax to be deducted on payment The assessee engaged M/s Stratum Resources as marketing agent for South East Asian countries - Held that - The work of the foreign party is to identify the potential customer and file a report regarding the market strategy and developmental studies - Agreement is not for the marketing of product of the assessee in South East Asian countries - The impugned agreement has to be viewed by substance of the transaction and not by the nomenclature - The substance of the agreement is for consulting the foreign party for marketing the product of the assessee in South East Asian countries. Therefore, it is only consultancy charges - The substance of the impugned agreement is only consultancy agreement Decided against assessee.

Summary

Issues:
Appeal against common order passed by CIT(A)-III, Kochi for assessment years 2004-05 to 2006-07 - Determination of tax deduction on payments made to marketing agents - Applicability of sections 195 and 201(3) of the Income Tax Act - Interpretation of consultancy charges versus marketing services - Retrospective application of Finance Act, 2009.

Analysis:
The case involved three appeals challenging the CIT(A)'s order regarding tax deductions on payments to marketing agents for South East Asian countries. The appellant argued that payments to M/s Stratum Resources were for marketing services, not consultancy charges, citing the substance of the agreement over its nomenclature. The appellant relied on legal precedents emphasizing substance over form in agreements. Additionally, the appellant contended that the retrospective application of sections 195 and 201(3) of the Income Tax Act was impractical and not feasible, supported by a Special Bench decision.

The respondent, on the other hand, asserted that the payments were for consultancy services based on the agreement terms requiring market surveys and customer identification. The respondent argued that the foreign party was not authorized to market the appellant's product, making the payments taxable in India. The respondent also highlighted the provision in section 201(3) allowing orders before 31-03-2011 for financial years starting before 01-04-2007, rejecting the appellant's claim of impossibility due to retrospective application.

Upon review, the Tribunal examined the agreement between the parties and concluded that the foreign party's role was limited to market surveys and reports, not actual marketing of the appellant's product. Therefore, the payments to M/s Stratum Resources were rightly categorized as consultancy charges, as determined by the CIT(A). The Tribunal upheld the order, emphasizing the substance of the transaction over the nomenclature used in the agreement.

Regarding the retrospective application of section 201(3), the Tribunal clarified that the legislative limitation introduced by the Finance Act, 2009 was prospective, with a fixed time frame for passing orders for earlier assessment years. The Tribunal dismissed the relevance of case laws cited by the appellant, noting the absence of judgment copies and concluding that the substance of the agreement indicated consultancy services, not marketing activities. Ultimately, the Tribunal found no flaws in the lower authority's order and dismissed all appeals.

In conclusion, the Tribunal confirmed the CIT(A)'s decision on tax deductions for payments to marketing agents, upheld the applicability of sections 195 and 201(3) of the Income Tax Act, and rejected the appellant's arguments regarding retrospective application, emphasizing the substance of the transaction in determining tax liability.