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2022 (12) TMI 1397 - AT - Income TaxIncome deemed to accrue or arise in India - Treating the fabrication charges received as fees for technical services - taxed the same under section 9(1)(vii) of the I.T. Act read with Article-12(4)(a) of the DTAA between India and Singapore - HELD THAT - As decided in assessee own case 2022 (7) TMI 1396 - ITAT MUMBAI the fact that an arrangement regarding situs of entities providing different facilities, in connection with a transaction of the multinational group, is done in a tax-efficient manner, cannot be reason enough to disregard the arrangement. We are satisfied that so far as the income of the assessee from the refurbishing of the bushes is concerned, it is not taxable in India as the provisions of Article 12(3) cannot be invoked in this case, and that, so far as the provisions of Article 12(4)(a) are concerned, these provisions cannot be invoked as the assessee has not rendered these services in connection with the services for which a payment described is received by the assessee. Thus delete the impugned addition The assessee gets the relief accordingly. - Decided in favour of assessee.
Issues Involved:
1. Treating the fabrication charges received as fees for technical services (FTS). 2. Incorrect tax rate applied to the alleged fees for technical services. 3. Levy of interest under section 234B of the Income-tax Act, 1961. 4. Unexplained additional tax demand. Issue-Wise Detailed Analysis: 1. Treating the Fabrication Charges Received as Fees for Technical Services: The primary issue contested by the assessee was the classification of fabrication charges received as 'fees for technical services' (FTS) by the Assessing Officer (AO) and the Dispute Resolution Panel (DRP). The assessee argued that the fabrication charges should not be considered as FTS under the Income-tax Act, 1961 or the India-Singapore Double Tax Avoidance Agreement (DTAA). The AO and DRP, however, treated these receipts as FTS under Article 12(4)(a) of the DTAA between India and Singapore, and consequently taxed them under section 9(1)(vii) of the Income-tax Act. The Tribunal noted that similar issues had been dealt with in the assessee's own case in previous years, where it was decided that the fabrication charges did not amount to making available any technical knowledge, experience, skill, know-how, or process, and thus, could not be taxed as FTS. The Tribunal upheld this view, concluding that the income from the refurbishing of bushes was not taxable in India as per the provisions of Article 12(3) and Article 12(4)(a) of the DTAA. 2. Incorrect Tax Rate Applied: The assessee contended that even if the fabrication charges were to be taxed as FTS, the applicable tax rate should be 10% as per Article 12(2) of the India-Singapore DTAA, rather than the 25% applied by the AO. However, since the Tribunal concluded that the fabrication charges were not taxable as FTS, this issue became academic and infructuous. 3. Levy of Interest Under Section 234B of the Income-tax Act, 1961: The assessee challenged the levy of interest under section 234B of the Income-tax Act, asserting that no interest was leviable based on the facts and prevailing law. Given the Tribunal's decision that the fabrication charges were not taxable in India, the issue of interest levy under section 234B also became academic and infructuous. 4. Unexplained Additional Tax Demand: The assessee disputed an additional tax demand of Rs. 2,60,299/- raised by the AO, claiming it was unexplained and erroneous. As the core issue regarding the taxability of fabrication charges was resolved in favor of the assessee, this additional tax demand was also rendered academic and infructuous. Conclusion: The Tribunal allowed the appeals for both assessment years (2015-16 and 2018-19), concluding that the fabrication charges received by the assessee were not taxable in India under the DTAA between India and Singapore. Consequently, the issues regarding the incorrect tax rate, interest levy under section 234B, and the additional tax demand were dismissed as infructuous. The Tribunal's decision was pronounced on 26th December 2022.
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