1978 (7) TMI 82 - HC - Income Tax

Collaboration Agreement, Foreign Company, Income Deemed To Accrue Or Arise In India, Indian Company

Issues Involved:
1. Taxability of the license fees payable under clauses (b) and (c) of Article V of the agreement.
2. Whether the entire license fees payable under both clauses are taxable in the hands of VDO.
3. Whether the license fee of 1% payable under clause (c) of Article V is taxable in the hands of Instek.
4. Justification of the Commissioner invoking Section 263 of the Income-tax Act, 1961.

Detailed Analysis:

1. Taxability of the License Fees Payable Under Clauses (b) and (c) of Article V of the Agreement:
The primary question was whether the license fees payable under clauses (b) and (c) of Article V of the agreement are income deemed to have accrued or arisen in India under Section 9 of the Income-tax Act, 1961. The court examined the agreement and the nature of the services rendered by VDO and Instek. It was observed that VDO did not carry out any operations in India and did not participate in the business of IIP in India. The Supreme Court's decision in Carborandum Company v. CIT [1977] 108 ITR 335 was cited, which held that in the absence of operations carried out in India, income cannot be deemed to accrue or arise in India. Consequently, the court held that the license fees payable under clauses (b) and (c) of Article V cannot be treated as income deemed to accrue or arise in India and are outside the scope of Section 9 of the Act.

2. Whether the Entire License Fees Payable Under Both Clauses Are Taxable in the Hands of VDO:
The court noted that under the agreement, 4% of the total turnover was payable by IIP to VDO, but VDO was obligated to pay 1% of this amount to Instek. It was determined that the net income derivable by VDO is only 3%, as it undertook to pay 1% to Instek. The court held that the amounts payable under clauses (b) and (c) cannot be attributed to any operation carried out by VDO in India. Therefore, the entire 4% of the turnover is not taxable in the hands of VDO; only the 3% payable under clause (b) is taxable.

3. Whether the License Fee of 1% Payable Under Clause (c) of Article V is Taxable in the Hands of Instek:
Clause (c) of Article V of the agreement provided that 1% of the total turnover of the licensed articles was payable to VDO, which in turn was to be paid to Instek. The court found that there was no privity of contract between IIP and Instek, and VDO did not act as Instek's agent. Thus, Instek had no business connection with IIP, and the income derived by Instek from VDO was not taxable under Section 9 of the Act. The assessments made on Instek were held to be without jurisdiction.

4. Justification of the Commissioner Invoking Section 263 of the Income-tax Act, 1961:
The Commissioner had invoked Section 263 of the Act to revise the orders of "nil" assessment passed in the case of Instek for certain assessment years, deeming them erroneous and prejudicial to the interests of the revenue. The court, however, found that the Commissioner was not justified in directing assessments to be made on Instek for the 1% license fee payable under clause (c) of Article V, as this income did not accrue or arise in India.

Conclusion:
The court concluded that the license fees payable under clauses (b) and (c) of Article V of the agreement cannot be treated as income deemed to accrue or arise in India. The 3% license fee payable under clause (b) is taxable in the hands of VDO, while the 1% license fee payable under clause (c) is not taxable in the hands of Instek. The Commissioner was not justified in invoking Section 263 of the Act to assess Instek for the 1% license fee.

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