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2018 (11) TMI 1604 - AT - Income TaxIT Services rendered qualify as FTS as per the DTAA - DRP held that assessee company satisfies make-available condition under India- Belgium DTAA - AO held that Services provided by the assessee company are in the nature of IT support services or routine information technology related work which is not very complex/ highly technical in nature - HELD THAT - These services do not make available any know-how or skill and do not fall within the ambit of FTS as defined in Article 12 of the India-Belgium DTAA read with India-Portugal DTAA. The submissions of the DR that the assessee company is providing make available services and the services are interlinked has not been supported by any documentary evidence which was produced by the assessee company during the assessment proceedings. The DE BEERS INDIA MINERALS (P.) LTD. 2012 (5) TMI 191 - KARNATAKA HIGH COURT held that the technical knowledge or skills of the provider should be imparted to and absorbed by the receiver so that the receiver can deploy similar technology or techniques in the future without depending upon the provider. The Hon ble High Court further held that Technology will be considered made available when the person acquiring the service is enabled to apply the technology. In other words payment of consideration would be regarded as fee for technical/included services only if the twin test of rendering services and making technical knowledge available at the same time is satisfied. In the present assessee company s case the services provided by the assessee company are that of IT support services which are merely in the nature of routine IT support services and availing such services in no manner has given any benefit to MIPL with technical knowledge skill or expertise to be able to apply it in future to perform the functions independent of the assessee company. Thus the twin test is not fulfilled in the present case. Therefore the Assessing Officer was not justified in making additions in this aspect. Surcharge and cess on the gross treaty rate of 10% applicable on fees for technical services - HELD THAT - AR relied upon the decision of Elektrobit Automotive GmbH vs. DCIT 2018 (5) TMI 1861 - ITAT DELHI wherein the Tribunal held that education cess is only a surcharge as clarified by the Finance Act and surcharge is only a tax clarified in case of CIT vs. K. Srinivasan 1971 (11) TMI 2 - SUPREME COURT therefore education cess or any other surcharge should not be added separately to the tax rate as per the DTAA. The Tribunal relied on the coordinate Bench decision in the case of Osram India Pvt. Ltd. vs DCIT 2015 (12) TMI 1793 - ITAT DELHI to come to this conclusion. Thus the issue is squarely covered in favour of the assessee.
Issues Involved:
1. Validity of the assessment order. 2. Classification of IT services as fees for technical services (FTS) under the India-Belgium tax treaty. 3. Application of the "make-available" clause in the tax treaty. 4. Taxability of the entire income earned by the assessee in India. 5. Application of surcharge and cess on the gross treaty rate of 10%. 6. Computation of interest under section 234A of the Income Tax Act. 7. Validity of initiation of penalty proceedings under section 271(1)(c) of the Act. Issue-wise Detailed Analysis: 1. Validity of the Assessment Order: The assessee challenged the validity of the assessment order dated 27/10/2014 passed by the AO under sections 144C(3) and 143(3) of the Income Tax Act, 1961. The Tribunal did not adjudicate on this ground as it was general in nature. 2. Classification of IT Services as Fees for Technical Services (FTS): The AO and DRP classified the IT services provided by the assessee as FTS under the India-Belgium tax treaty, arguing that these services fall within the meaning of 'make-available' prescribed in the tax treaty. The assessee contended that the IT support services did not qualify as FTS since they did not make available any technical knowledge, skill, or expertise to the recipient. The Tribunal agreed with the assessee, stating that the services were routine IT support services and did not enable the recipient to apply the technology independently in the future. Thus, the services did not meet the 'make-available' condition under the tax treaty. 3. Application of the "Make-Available" Clause: The Tribunal examined whether the IT services rendered by the assessee satisfied the 'make-available' condition under the India-Belgium DTAA read with the India-Portugal DTAA. The Tribunal referred to various judicial precedents and the Memorandum of Understanding (MoU) between India and the US, which clarified that technology is considered 'made available' when the recipient can apply it independently in the future. The Tribunal concluded that the services provided by the assessee did not make available any technical knowledge or skill to the recipient and thus did not qualify as FTS. 4. Taxability of the Entire Income Earned by the Assessee in India: The AO treated the entire income received by the assessee from its Indian AE as taxable in India. The Tribunal, however, held that the IT support services provided by the assessee did not qualify as FTS under the India-Belgium DTAA. Consequently, the income received for such services was not taxable in India, and the addition made by the AO was not justified. 5. Application of Surcharge and Cess: The AO applied surcharge and cess on the gross treaty rate of 10% applicable to FTS. The Tribunal held that the tax rate mentioned in Article 12 of the India-Belgium DTAA is inclusive of surcharge and cess. The Tribunal relied on the decision in Elektrobit Automotive GmbH vs. DCIT, which clarified that education cess is a form of additional surcharge and should not be added separately to the tax rate as per the DTAA. Thus, the AO erred in applying surcharge and cess over and above the 10% tax rate. 6. Computation of Interest under Section 234A: The assessee argued that the interest under section 234A of the Act was not applicable as taxes were duly deducted and deposited by the Indian AE. The Tribunal held that this ground was consequential and did not require separate adjudication. 7. Validity of Initiation of Penalty Proceedings: The assessee contended that the DRP erred in not examining the validity of the initiation of penalty proceedings under section 271(1)(c) of the Act. The Tribunal did not provide a separate analysis on this issue, implying that it was not a significant point of contention in the appeal. Conclusion: The Tribunal allowed the appeal of the assessee, holding that the IT support services provided did not qualify as FTS under the India-Belgium DTAA, and thus, the income received was not taxable in India. The Tribunal also ruled that the AO erred in applying surcharge and cess over and above the 10% tax rate specified in the DTAA. The interest under section 234A was deemed consequential and did not require separate adjudication.
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