2019 (10) TMI 1397 - AAR - Income Tax

Eligibility of Advance ruling - Income taxable India - Double Taxation Avoidance Agreement signed between India and Finland ( India-Finland Tax Treaty ) - whether amount received by the Applicant from Valmet Chennai and Valmet Automation for reimbursement of third party cost incurred for providing IT support services without any income element embedded therein would not be chargeable to tax in India? - HELD THAT - Matter was selected for scrutiny to examine the Transfer Pricing parameter and the accounting of tax credit available in 26AS. No evidence has been brought on record to establish that the Assessing Officer had raised any specific question on the taxability of IT service agreement of the applicant with Valmet Chennai and/or Valmet Automation. A notice u/s 142(1) dated 01/04/2001 (same date as filing of present application) was issued with a questionnaire and this specific question is not found appearing in that notice as well. In the absence of any specific question in respect of IT service agreements it cannot concluded that the question raised in the present application was already pending before the Income-tax Authority. The general notice as issued in this case is found insufficient to attract the rejection of the application under clause (i) of Proviso to Section 245R(2) It is evident on a plain reading of the notice that it does not address itself to any specific question; it does not even disclose application of mind to the returns save and except the fact that they conform to the instructions which compelled the A.O. to issue a scrutiny notice on account of the international transactions reported by the assessee. In the present case also the notice u/s 143(2) was issued in response to CASS selection reasons. The selection of international transaction on T.P. risk parameter was already referred to the T.P.O. who had passed the order u/s 92CA (3) of the Act dated 26/03/2019 wherein no adverse inference was drawn in respect of the international transactions undertaken by the assessee. The specific question in respect of IT service agreements was never raised by the A.O. in any of the notices or the questionnaire. As held by the Hon ble Courts such notice can t attract the automatic rejection route under clause (i) of proviso to Section 245R(2) of the Act as the question raised in the present application is not found pending before the income tax authority. It can t be concluded that the transaction was designed prima facie for avoidance of income tax merely because similar income was offered for tax in the past year. In order to claim bar under clause (iii) of Section 245R(2) there must be some necessary facts pointing to prima facie inference to a design to avoid tax by any illegal or improper means. No such fact has been brought on record by the revenue in this case. Merely because the applicant had offered such receipt for tax in the earlier years does not imply that the transaction was designed for tax avoidance. Accordingly the objection of the revenue in this regard is overruled. The application is admitted only in respect of the transaction with Valmet Chennai and the reference of Valmet Automation in the application will be ignored while giving the final ruling. The application is allowed to be proceeded accordingly.

Issues Involved:

1. Taxability of IT support services provided by the applicant from Finland to its Indian group companies under the India-Finland Tax Treaty.
2. Taxability of reimbursement of third-party costs incurred for IT support services.
3. Applicability and rate of tax deduction at source under section 195 of the Act.
4. Maintainability of the application under section 245N(a) of the Act.
5. Pendency of the question before the income tax authority affecting the application under section 245R(2) of the Act.
6. Allegation of the application being designed for tax avoidance.

Issue-wise Detailed Analysis:

1. Taxability of IT support services under the India-Finland Tax Treaty:
The applicant, Valmet Technologies Oy, sought clarification on whether the amount received for IT support services from Valmet Chennai and Valmet Automation would be deemed to arise in Finland and thus not taxable in India under Article 12(5) of the India-Finland Tax Treaty. The revenue argued that the applicant had been filing tax returns in India since AY 2013-14, offering tax on payments received from its Indian AE as fees for technical services (FTS) under Article 12 of the DTAA. The applicant contended that it was entitled to correct its previous erroneous tax positions and rely on the statute and DTAA provisions.

2. Taxability of reimbursement of third-party costs:
The applicant questioned whether the reimbursement of third-party costs incurred for providing IT support services, without any income element, would be chargeable to tax in India. This issue was part of the broader discussion on the taxability of payments received under the IT Service Agreement.

3. Applicability and rate of tax deduction at source under section 195:
Based on the answers to the above questions, the applicant sought clarification on the applicability and rate of tax deduction at source under section 195 of the Act. This was a consequential issue dependent on the determination of the taxability of the amounts received.

4. Maintainability of the application under section 245N(a):
The revenue raised a preliminary objection that the application involved two transactions with different parties, which was not permissible under section 245N(a) of the Act. The applicant argued that section 13 of the General Clauses Act allowed for the inclusion of multiple transactions in a single application. The Authority accepted the applicant's submission, referencing Rule 44E(4) of the IT Rules and a CBDT memorandum clarifying that "a transaction" could include multiple transactions. The Authority decided to consider the application only in respect of the transaction with Valmet Chennai, ignoring references to Valmet Automation.

5. Pendency of the question before the income tax authority:
The revenue argued that the application should not be admitted under clause (i) of the proviso to section 245R(2) because the question was already pending before the income tax authority. The applicant admitted receiving a notice under section 143(2) for AY 2016-17 but contended that it did not specifically address the taxability of IT support services. The Authority found that the notice was for general scrutiny and did not mention the specific issue raised in the application. Citing precedents, the Authority concluded that the general notice did not constitute a pending question, allowing the application to proceed.

6. Allegation of tax avoidance:
The revenue contended that the application was designed for tax avoidance, as the applicant had offered similar income for tax in previous years. The applicant argued that correcting an erroneous tax position from previous years did not imply tax avoidance. The Authority agreed with the applicant, stating that no facts indicated a design for tax avoidance, and overruled the revenue's objection.

Conclusion:
The application was admitted only in respect of the transaction with Valmet Chennai, with references to Valmet Automation ignored. The Authority allowed the application to proceed, rejecting the revenue's objections regarding maintainability, pendency, and tax avoidance.

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