2004 (6) TMI 41 - AAR - Income Tax

Applicant prepared and signed proposals in the USA in respect of the project for installation of remote stations in India consideration has been received by the applicant in the USA through the applicant s bankers - held that income could be deemed to accrue or arise under the Income-tax Act to the non-resident applicant-company in India held that applicant-company has a permanent establishment in India as defined in the DTAA with USA

Issues Involved:
1. Whether any income could accrue or arise under the Income-tax Act, 1961 or can be deemed to accrue or arise to the non-resident applicant company in India.
2. Whether the non-resident applicant company can be said to have a permanent establishment in India as defined in the Double Taxation Avoidance Agreement (DTAA) with the United States of America.
3. Proportion of the net income content in the total receipts if the applicant company is found liable to pay any tax under the Income-tax Act, 1961.
4. Tax deduction at source liability and applicable rates if any part of the income is liable to tax deduction.

Detailed Analysis:

Issue 1: Accrual or Arising of Income in India
The applicant, a non-resident company, entered into contracts with the Government of Andhra Pradesh (GOAP) for supply, installation, and commissioning of equipment and services. The contracts were split into two parts: supply of goods (delivered in the USA) and provision of local services (executed in India). The applicant contended that no income/profit accrues or arises in India as the sale took place outside India and payments were received in the USA.

The Authority examined Section 5(2) and Section 9(1)(i) of the Income-tax Act, which deal with the scope of total income and deemed accrual of income, respectively. It was concluded that since the contracts were executed in India and services were provided locally, the income/profit is deemed to accrue or arise in India. The applicant's reliance on the Skoda Export case was distinguished as the present case involved a turnkey project, not a mere sale of goods.

Issue 2: Permanent Establishment (PE) in India
The Authority analyzed whether the applicant had a "business connection" and a "permanent establishment" in India under Article 5 of the DTAA. The applicant's Country Manager in India, Mr. Naresh Goel, was found to be an agent with authority to conclude contracts on behalf of the applicant, thereby creating a business connection and PE in India. The address of Mr. Goel was deemed a fixed place of business, fulfilling the criteria for a PE under the DTAA.

Issue 3: Proportion of Net Income Content
The applicant did not press this issue. However, the Authority noted that the determination of the taxable portion of the net income would depend on the specific facts and operations carried out in India.

Issue 4: Tax Deduction at Source
The applicant did not press this issue either. The Authority noted that GOAP was required to deduct tax at source under Section 195 of the Income-tax Act, considering the applicant had a PE in India and the income was deemed to accrue or arise in India.

Conclusion:
The Authority ruled that:
1. Income could be deemed to accrue or arise to the non-resident applicant company in India under the Income-tax Act.
2. The applicant company has a permanent establishment in India as defined in the DTAA with the United States of America.

The ruling emphasized that the applicant's business operations in India, through its Country Manager, constituted a business connection and a permanent establishment, leading to the accrual of income in India and the applicability of Indian tax laws.

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