2015 (8) TMI 357 - AT - Income Tax

Training services rendered - Whether AO/Ld. DRP has erred in applying tax rate of 15 per cent on Fee for technical services ( FTS ) under Article 12 of the India-USA DTAA ignoring the fact that section 115A of the Act provides for beneficial tax rate of 10% (exclusive of surcharge/cess) on FTS? - Held that - It is not in dispute that the fees for technical services was in pursuance to an agreement made after the first day of June, 2005. Thus, the provision of sub-section (BB) of Section 115A was applicable.Admittedly, in this case, the Assessing Officer has charged to tax the gross amount of fees for technical services. Moreover, as pointed out by the learned counsel, Article 12 of the DTAA would not be applicable if there is a PE in India. In view of the above, we are of the opinion that clause (BB) of Section 115A was applicable which provides for tax rate of 10% in respect of fees for technical services. This being a more beneficial provision than the Article 12 of DTAA, therefore, assessee had a right to claim the applicability of this provision of the Income-tax Act in view of the provision of Section 90(2) of the Income-tax Act. We, therefore, direct the Assessing Officer to apply Section 115A(BB) and tax the fees for technical services at the rate of 10%.- Decided in favour of assessee Disallowance of credit for tax deducted at source - Held that - At the time of hearing before us, both the parties fairly admitted that let this matter be set aside to the file of the Assessing Officer and assessee be directed to produce evidence/certificates of the tax deducted at source and thereafter Assessing Officer would be directed to allow credit of the same after verification. We, therefore, set aside the issue raised by the assessee vide ground No.3 of its appeal and direct the assessee to produce necessary evidence/certificates in respect of tax deducted at source before the Assessing Officer. - Decided in favour of assessee for statistical purposes. Determining and levying income tax on income arising from installation and inspection activities - assessed in the impugned assessment order on protective basis - Held that - After considering the arguments of both the sides, we agree with the contention of the learned counsel. It is a settled position of law that the Revenue cannot insist on recovering the tax on protective assessment of income. We, therefore, set aside this matter to the file of the Assessing Officer and direct him not to recover the tax on protective addition.- Decided in favour of assessee

Summary

Issues:
1. Challenge to the validity of the Assessing Officer's order.
2. Dispute over the tax rate on Fee for Technical Services (FTS) under India-USA DTAA.
3. Non-granting of credit for tax deducted at source (TDS).
4. Determination and levy of income tax on income from installation and inspection activities on a protective basis.

Analysis:

Issue 1: Challenge to the validity of the Assessing Officer's order
The appellant contested the Assessing Officer's order as bad in law and void ab-initio. However, during the hearing, the appellant's counsel conceded that the ground was of a general nature and not pressed, leading to its rejection.

Issue 2: Dispute over the tax rate on Fee for Technical Services (FTS) under India-USA DTAA
The appellant, a non-resident corporation based in the USA, argued that the tax rate applied by the Assessing Officer at 15% under the DTAA was incorrect. They contended that Section 115A of the Income-tax Act provided for a beneficial tax rate of 10% on FTS. The appellant highlighted the applicability of Section 90(2) and the more favorable provision of Section 115A(BB) for taxing FTS at 10%. The Tribunal agreed with the appellant, directing the Assessing Officer to apply Section 115A(BB) for taxing FTS at 10%.

Issue 3: Non-granting of credit for tax deducted at source (TDS)
Both parties agreed to set aside this issue for the appellant to produce evidence of TDS before the Assessing Officer. The Tribunal directed the Assessing Officer to verify the evidence and allow credit as per law.

Issue 4: Determination and levy of income tax on income from installation and inspection activities on a protective basis
The appellant did not dispute the protective assessment of income but requested non-recovery of tax on protective addition. The Tribunal agreed that the Revenue cannot recover tax on protective assessment and directed the Assessing Officer not to proceed with tax recovery on protective addition.

In conclusion, the Tribunal partly allowed the appeal, addressing the issues raised by the appellant comprehensively and providing appropriate directions for further proceedings.