2017 (10) TMI 929 - AT - Income Tax

Characterization of the payment received by the assessee as royalty or Fee for Technical Services (FTS) - PE In India - Held that - As decided in assessee s own case AO erred in holding that income received by the appellant from the non-resident companies is taxable in India under Article 12(4) read with Article 12(2) and 12(8) of India Netherlands DTAA. AO erred in not discharging the burden of proving that the appellant s non-resident customers had a Permanent Establishment in India in connection with which the alleged Royalty was paid; and the alleged Royalty payments were borne by such Permanent Establishment of the non-resident customers. AO has erred in arbitrarily attributing the entire receipts from the customers falling on the beam covering India either fully or partially and not apportioning receipts which were India specific. - Decided in favour of the assessee.

Issues Involved:

1. Liability of the assessee to be assessed to tax in India.
2. Characterization of payments received by the assessee as "royalty" under the Income Tax Act, 1961 and India-Netherlands DTAA.
3. Characterization of payments as "fee for technical services" (FTS) under the Act and DTAA.
4. Taxability of revenues from non-resident customers under Article 12(8) of the DTAA and Section 9(1)(vi)(c) of the Act.
5. Computation of assessed income and credit of taxes deducted at source.
6. Levy of interest under Section 234B of the Act.
7. Initiation of penalty proceedings under Section 271(1)(c) of the Act.
8. Levy of surcharge and education cess on the rate of tax as per DTAA.

Detailed Analysis:

1. Liability of the Assessee to Be Assessed to Tax in India:
The assessee argued that it should not be liable to tax in India, as per the directions of the DRP and previous rulings by the Delhi High Court and ITAT in its own case. The Tribunal dismissed these grounds as infructuous since they were general in nature and did not require specific adjudication.

2. Characterization of Payments as "Royalty":
The Tribunal referenced the Delhi High Court's decision in the assessee's case for AY 2006-07 and 2008-09, which held that payments for data transmission services are not "royalty" under the DTAA, even after the insertion of Explanations 5 and 6 to Section 9(1)(vi) of the Act by Finance Act 2012. The Tribunal followed this binding precedent and ruled in favor of the assessee, holding that the payments cannot be considered "royalty" under Article 12(4) of the DTAA.

3. Characterization of Payments as "Fee for Technical Services" (FTS):
The Tribunal noted that this issue had already been decided in favor of the assessee by the ITAT for AY 2006-07 and 2008-09, where it was held that payments for data transmission services do not qualify as FTS under the Act or the DTAA. The Tribunal followed this precedent and ruled in favor of the assessee, allowing the related grounds.

4. Taxability of Revenues from Non-Resident Customers:
The Tribunal observed that similar grounds had been raised in the assessee's case for AY 2006-07 and 2008-09, which were dismissed as infructuous since the primary issue of characterization of receipts as royalty had been decided in favor of the assessee. Following this, the Tribunal dismissed the related grounds as infructuous.

5. Computation of Assessed Income and Credit of Taxes Deducted at Source:
The Tribunal restored the issue of granting credit for taxes deducted at source to the Assessing Officer for verification and reconciliation with the Income Tax Department's database. The issue of wrong computation of total assessed income was also restored to the Assessing Officer for factual verification and decision in accordance with the law.

6. Levy of Interest under Section 234B:
The Tribunal dismissed the issue of interest under Section 234B as infructuous, noting that the primary issue of characterization of receipts had been decided in favor of the assessee, rendering the interest issue academic.

7. Initiation of Penalty Proceedings under Section 271(1)(c):
The Tribunal found that the Assessing Officer had only initiated penalty proceedings and had not levied the penalty. Therefore, it was premature for the assessee to agitate the issue in the present appeals, and the related grounds were dismissed as infructuous.

8. Levy of Surcharge and Education Cess:
The Tribunal dismissed the issue of levying surcharge and education cess as infructuous, following the decision on the primary issue of characterization of receipts.

Conclusion:
The appeals were partly allowed for statistical purposes, with specific issues restored to the Assessing Officer for verification and decision in accordance with the law. The Tribunal followed binding precedents and dismissed several grounds as infructuous, providing a comprehensive resolution to the issues raised.

← Previous Next →