2015 (12) TMI 142 - AT - Income Tax

Taxability of receipts as fees for technical services - Indo Dutch DTAA - whether provisions of the Indo US tax treaty cannot be read into the provisions of Indo Dutch tax treaty?- Held that - Learned CIT(A) was clearly in error in holding that the provisions of the Indo US tax treaty cannot be read into the provisions of Indo Dutch tax treaty. As clearly stated in the MoU to the Indo US tax treaty, which stands incorporated in the Indo Dutch tax treaty as well by the virtue of MFN clause, under paragraph 4(b), consultancy services which are not of a technical nature cannot be treated as technical services. Accordingly, fees for non technical consultancy services cannot be treated as covered by the scope of fees for technical services . There are a large number of decisions by the coordinate benches which reiterate this proposition. What essentially follows, therefore, is that as long as the services rendered by the assessee are managerial or consultancy services in nature, which do not involve or transmit the technology, the same cannot be brought to tax as fees for technical services. An example of this type is a service is set out in example no. 7 to the MoU appended to the Indo US tax treaty, which is adopted in respect of Indo Dutch tax treaty as well- as noted earlier in this order As long as the Assessing Officer can demonstrate, after collecting necessary details from the assessee, that the non taxable consideration component (i.e. consideration for physical deliverables, consideration for services other than technical services and consideration for services which donnot transmit the technical know how etc) is less than fifty percent of the overall consideration paid by the assessee for basic refinery package, he can certainly come to that conclusion. It is, therefore, necessary that all the requisite details, as may be available to the assessee and as may be requisitioned by the Assessing officer, must be taken into account to facilitate this apportionment. We are, however, not inclined to conduct this exercise directly at the stage of second appeal. We, therefore, remit the matter to the file of the Assessing Officer by upholding the plea of the assessee in principle and directing the Assessing Officer to apportion the consideration for basic refinery package on the above lines. - Decided in favour of assessee for statistical purposes.

Issues Involved:
1. Taxability of revenues as fees for technical services.
2. Non-taxability of 50% of receipts under the Basic Refinery Package (BRP).
3. Composite contract breakup for taxability determination.
4. Interpretation of the term 'make available' under the Indo-Netherlands DTAA.
5. Reliance on other tax treaties for interpreting treaty language.
6. Classification of BRP services into technical and non-technical components.
7. Documentary evidence for non-technical services under BRP.
8. Time limit for service rendered under BRP.
9. Rejection of documentary evidence for commercial services.
10. Charging of interest under Sections 234B and 234C of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Taxability of Revenues as Fees for Technical Services:
The Commissioner of Income-tax (Appeals) [CIT(A)] held that revenues earned by the appellant for providing commercial services were taxable as fees for technical services (FTS) under Article 12 of the Indo-Netherlands tax treaty. The Assessing Officer (AO) concluded that the services provided were technical in nature, making technical knowledge available to Indian companies, thus taxable at 10%.

2. Non-taxability of 50% of Receipts Under BRP:
The appellant claimed that 50% of the receipts under the BRP were commercial and non-taxable. The CIT(A) rejected this claim, stating that the BRP agreement should be read as a composite one and that the appellant's attempt to bifurcate the services into technical and non-technical parts was devoid of basis and logic.

3. Composite Contract Breakup for Taxability Determination:
The CIT(A) upheld the AO's view that the BRP agreement could not be split into separate components for tax purposes. The appellant's argument that the agreement included independent commercial and technical services was not accepted. The CIT(A) emphasized that the services were interdependent and complementary, making it impractical to segregate them.

4. Interpretation of the Term 'Make Available' Under the Indo-Netherlands DTAA:
The CIT(A) held that the term 'make available' should be interpreted within the Indo-Netherlands DTAA itself, without reference to the Memorandum of Understanding (MoU) of the Indo-US DTAA. The CIT(A) rejected the appellant's reliance on judicial pronouncements that used other treaties to interpret similar language.

5. Reliance on Other Tax Treaties for Interpreting Treaty Language:
The CIT(A) disagreed with the appellant's argument that the Indo-Netherlands DTAA should be interpreted in light of the MoU to the Indo-US DTAA. The CIT(A) stated that each DTAA is a negotiated instrument and should be interpreted on its own terms, without comparing it to other treaties.

6. Classification of BRP Services into Technical and Non-technical Components:
The CIT(A) rejected the appellant's classification of BRP services into technical and non-technical components. The CIT(A) found the appellant's attempt to bifurcate the services as technically fallacious, contradictory, and devoid of logical basis.

7. Documentary Evidence for Non-technical Services Under BRP:
The CIT(A) dismissed the appellant's documentary evidence supporting the claim that services under BRP were commercial in nature. The CIT(A) found the evidence insufficient and lacking in logical reasoning.

8. Time Limit for Service Rendered Under BRP:
The CIT(A) interpreted Clause 1.1 of Article 1 of the Technical Service Agreement to conclude that the total time spent for services rendered under BRP could not exceed 3,600 man-hours over three years. The appellant argued that this limit applied only to 'Help desk services' and not to all services under BRP.

9. Rejection of Documentary Evidence for Commercial Services:
The CIT(A) rejected the appellant's documentary evidence for commercial services without providing specific reasoning. The appellant claimed that the services were divided into technical and non-technical components, which the CIT(A) did not accept.

10. Charging of Interest Under Sections 234B and 234C of the Income Tax Act:
The appellant contested the charging of interest under Sections 234B and 234C for shortfall/deferment in payment of advance tax. The CIT(A) upheld the AO's decision to charge interest, rejecting the appellant's argument based on provisions of Section 209(1)(d) read with Section 195.

Conclusion:
The Tribunal held that the CIT(A) erred in rejecting the appellant's claims and remitted the matter back to the AO for reconsideration. The Tribunal directed the AO to apportion the consideration for the BRP between taxable and non-taxable components, taking into account the appellant's submissions and necessary details. The appeal was allowed for statistical purposes.

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