2020 (11) TMI 1101 - AT - Income Tax

Income deemed to accrue or arise in India - Fixed place PE in India - profits attributable to the PE in India - Royalty receipt - HELD THAT - Tribunal in assessee s own case for Assessment Years 2006-07 and 2008-09 2013 (11) TMI 564 - ITAT DELHI has reached the conclusion that there was a fixed place PE of the assessee in India and that profit attribution had to be made in the hands of the assessee due to such fixed place PE. Although, the assessee has approached the Hon ble High Court against the said order of the Tribunal holding that the assessee had fixed place PE in India, the appeals are yet to be disposed of by the Hon ble High Court. Thus, as of date, the order of the Co-ordinate Bench of the Tribunal for Assessment Years 2006-07 and 2008-09 have a binding precedential value for us because bound by judicial discipline, we are to follow the decisions of the Co-ordinate Bench, especially if the same have been rendered in assessee s own case. Thus we uphold the action of the Ld. CIT(A) in holding that the assessees has a fixed place PE in India. Methodology of profit attribution - As in assessee s own case for Assessment Years 2006-07 and 2008-09 has laid down the methodology and respectfully following the same, the TPO is directed to adopt the same methodology as enumerated by the Co-ordinate Bench. Thus, the issue to attribution of profits is restored to the file of TPO for computing the attribution of profits with respect to the fixed place PE after giving due opportunities to the assessee to submit its computation and calculations. Assessee did not have a dependent Agent PE or a service PE in India and reduction in profit attribution done by the AO - CIT (A) has returned a finding based on the order of the ITAT and has also noted that even in assessment year 2006-07 2018 (2) TMI 1742 - ITAT NEW DELHI the Ld. CIT (A) had held that there was no service PE in India and that the AO had not challenged this before the ITAT. Payment link charges/IPLC charges being taxable under royalty has been decided in assessee s favour by the Tribunal in assessment year 2006-07 2018 (2) TMI 1742 - ITAT NEW DELHI - It is also seen that the Ld. CIT (A) has taken due cognizance of this finding of the Tribunal in the year under consideration and has allowed relief to the assessee.2 Therefore, in absence of any contrary facts having been pointed out by the department, in view of the order of the coordinate bench in assessee s own case as aforementioned, we dismiss the related grounds raised by the department in this regard.

Issues Involved:
1. Existence of Fixed Place Permanent Establishment (PE)
2. Existence of Service PE
3. Existence of Dependent Agent PE
4. Attribution of Profits to PE
5. Taxation of Link Charges/IPLC as Royalty

Detailed Analysis:

1. Existence of Fixed Place Permanent Establishment (PE):
The primary issue was whether the assessee had a fixed place PE in India. The Tribunal in earlier assessment years (2006-07 and 2008-09) held that the assessee had a fixed place PE in India. The assessee argued that the business in India was carried out by its subsidiary, CIS, which was an independent contractor. However, the Tribunal relied on the precedent and held that the frequent visits of the assessee's employees to CIS premises, provision of hardware/software, and the control exerted over CIS operations constituted a fixed place PE. The Tribunal followed the earlier decision and upheld the CIT (A)’s finding of a fixed place PE in India.

2. Existence of Service PE:
The AO contended that the assessee had a Service PE in India as it provided services to CIS. However, the CIT (A) and the Tribunal found that the services provided by the assessee qualified as Fee for Included Services under Article 12 of the DTAA and were taxed accordingly. The Tribunal noted that in the earlier assessment year (2006-07), the CIT (A) had held that there was no Service PE, and this finding was not challenged by the Revenue. Hence, the Tribunal upheld the CIT (A)’s conclusion that the assessee did not have a Service PE in India.

3. Existence of Dependent Agent PE:
The AO argued that CIS acted as a dependent agent of the assessee. However, the Tribunal, following its earlier decision, held that CIS did not have the authority to conclude contracts on behalf of the assessee and operated on a principal-to-principal basis. The CIT (A) and the Tribunal both concluded that CIS did not constitute a Dependent Agent PE under Article 5(4) of the DTAA.

4. Attribution of Profits to PE:
The Tribunal directed that the methodology for profit attribution should follow the principles laid down in the earlier assessment years (2006-07 and 2008-09). The TPO was instructed to adopt the same methodology and compute the profits attributable to the fixed place PE after giving the assessee an opportunity to submit its computations. The Tribunal restored the issue of profit attribution to the TPO for re-computation.

5. Taxation of Link Charges/IPLC as Royalty:
The AO held that link charges were taxable as equipment royalty and process royalty under the Act and DTAA. However, the CIT (A) and the Tribunal, following the earlier decision, concluded that the link charges did not qualify as royalty. The Tribunal noted that the payments were for services and not for the right to use any equipment. The Tribunal upheld the CIT (A)’s decision that link charges were not taxable as royalty under the DTAA.

Conclusion:
The Tribunal upheld the CIT (A)’s findings on the existence of a fixed place PE and the non-existence of Service PE and Dependent Agent PE. The issue of profit attribution was remanded to the TPO for re-computation following the established methodology. The Tribunal also upheld that link charges were not taxable as royalty. Both the appeals were partly allowed for statistical purposes.

← Previous Next →