2022 (1) TMI 1032 - AT - Income Tax

Income accrues or arises in India - services to MTR foods Private Limited who is located outside India - Secondment charges paid in respect of the professional services rendered - classification as FTS - made available by non resident Assessee to MTR Foods in India - India Singapore DTAA - Taxability of receipts received by assessee from M/s. MTR Foods Pvt. Ltd., as FTS under section 9(1)(vii) - HELD THAT - Only technical and consultancy services are covered by Article 12(4) as either (a) are ancillary and subsidiary to the application or enjoyment of the right, property or information referred to in Article 12(3), or (b) 'make available' technical knowledge, experience, skill know-how etc. In the present case, only clause 12(4)(b) is applicable because there was no right, property or information that was transferred. The case of the Revenue therefore hinges on the applicability of Article 12(4)(b) which applies to rendering of only such technical or consultancy services as 'make available' technical knowledge, experience, skill or know-how etc. Taxability of an income under Article 12(4)(b), not only the payment should be in consideration for rendering of technical or consultancy services, but in addition to the payment being consideration for rendering of technical services., the services so rendered should also be such that 'make available' technical knowledge, experience, skill, know-how, or processes, or consist of the development and transfer of a technical plan or technical design. Hon'ble Mumbai Tribunal in Raymond's case 2002 (4) TMI 891 - ITAT MUMBAI also held that rendering of technical services cannot be equated with making available the technical services. We are of the view that, nothing is made available by non resident Assessee to MTR Foods in India. Accordingly the services rendered by the non resident assessee to MTR Foods are not taxable as per India Singapore DTAA. Since the non resident assessee do not have a permanent establishment in India, the income so arising cannot be taxed under Article 7 as 'business profits' either. - Decided in favour of assessee.

Issues Involved:
1. Barred by limitation
2. Addition to the total income on account of professional services
3. Addition to total income on account of foreign exchange
4. Incorrect total income considered in the computation of income
5. Incorrect rate of tax on income earned on account of FFS
6. Interest under section 234A of the Act
7. Interest under section 234B of the Act
8. Surcharge and education cess

Detailed Analysis:

1. Barred by Limitation:
The appellant did not press this issue, and thus, it was dismissed as not pressed.

2. Addition to the Total Income on Account of Professional Services:
The core issue was whether the professional services rendered by the non-resident assessee to MTR Foods Pvt. Ltd. should be treated as Fees for Technical Services (FTS) under section 9(1)(vii) of the Income Tax Act, 1961, and taxed in India. The assessee argued that the services did not make available technical knowledge, experience, skill, know-how, or process to MTR Foods Pvt. Ltd., as required under Article 12 of the India-Singapore DTAA. The DRP and AO concluded that the services rendered were technical and consultancy in nature and thus taxable under FTS. However, the Tribunal, after analyzing the service agreement and relevant case laws, concluded that the services rendered did not make available technical knowledge to MTR Foods Pvt. Ltd. Therefore, the receipts from these services could not be taxed as FTS under the India-Singapore DTAA. Consequently, the addition made by the AO was deleted.

3. Addition to Total Income on Account of Foreign Exchange:
The AO made an addition of INR 53,995 on account of differences in conversion rates. The Tribunal did not provide a separate detailed analysis for this issue, indicating it was not a significant point of contention.

4. Incorrect Total Income Considered in the Computation of Income:
The assessee contended that the AO incorrectly considered the amount of professional charges received. The AO considered INR 1,39,34,515 instead of INR 72,68,226 (gross of reimbursements) or INR 71,21,169 (net of reimbursements). The Tribunal's decision to delete the addition under FTS implicitly resolved this issue.

5. Incorrect Rate of Tax on Income Earned on Account of FFS:
The AO applied a tax rate of 40% on the total taxable income, contrary to the beneficial rate of 10% under the DTAA. The Tribunal's conclusion that the receipts were not taxable under FTS addressed this issue, making the tax rate applied moot.

6. Interest under Section 234A of the Act:
The AO levied interest under section 234A. The Tribunal's decision to delete the addition under FTS implicitly affected the computation of interest, making this issue consequential.

7. Interest under Section 234B of the Act:
The AO levied interest under section 234B. The assessee argued that as a non-resident company, the entire tax was to be deducted at source, and there was no question of advance tax payment. The Tribunal's decision to delete the addition under FTS implicitly affected the computation of interest, making this issue consequential.

8. Surcharge and Education Cess:
The AO levied surcharge and education cess. The Tribunal did not provide a separate detailed analysis for this issue, indicating it was not a significant point of contention.

Conclusion:
The Tribunal allowed the appeal, directing the AO to delete the addition made under FTS, thereby resolving the primary issue of taxability of the receipts from professional services. The Tribunal's decision also implicitly addressed issues related to incorrect total income computation, tax rates, and interest levied under sections 234A and 234B.

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