2022 (8) TMI 1263 - AT - Income Tax

Income accrued in India - payment received for IT support services as Fee for Technical Services - India-Netherlands DTAA - whether the payment received by the assessee for Information Technology ( IT ) support services constitutes Fee for Technical Services / Royalty under the provisions of the Act as well as under Article 12 of the India Netherlands Double Taxation Avoidance Agreement (DTAA)? - HELD THAT - Departmental Representative could not show us any reason to deviate from the aforesaid order and no change in facts and in law was alleged in the relevant assessment year. The issue arising in present appeal is recurring in nature and has been decided in favour of the assessee by decisions of Co-ordinate Bench of the Tribunal for preceding assessment years. Thus, respectfully following the order passed by Co ordinate Bench of the Tribunal in assessee s own case 2020 (3) TMI 1417 - ITAT MUMBAI which has also followed the judicial precedents in assessee s own case, the impugned addition made by treating payment received for IT support services as Fee for Technical Services under the provisions of the Act and under Article 12 of the DTAA, is deleted. As a result, grounds raised in assessee s appeal are allowed. Royalty receipts - Payment towards IT support services could not fall under royalty in the instant case. Thus, the Assessing Officer is directed to follow the directions issued by the learned DRP under section 144C(5) of the Act. As a result, grounds raised in assessee s appeal are allowed.

Summary

Issues Involved:
1. Assessment of total income.
2. Classification of receipts towards IT support services as income.
3. Classification of receipts towards IT support services as 'Fees for Technical Services' (FTS) under the Act and India-Netherlands DTAA.
4. Classification of IT support services under Article 12(5)(b) of the India-Netherlands DTAA.
5. Classification of IT support services under Article 12(5)(a) of the India-Netherlands DTAA.
6. Classification of receipts towards IT support services as 'Royalty' under the Act and India-Netherlands DTAA.
7. Directions of the Dispute Resolution Panel (DRP) regarding IT support services not falling under 'Royalty'.
8. Short granting of credit for Tax Deducted at Source (TDS).
9. Levy of interest under section 234B of the Act.

Detailed Analysis:

1. Assessment of Total Income:
The assessee contested the assessment of total income at Rs. 2,50,20,50,998 against the NIL income declared in the return. The Tribunal considered the previous decisions where similar issues were decided in favor of the assessee, noting the recurring nature of the issue and the unchanged facts and laws.

2. Classification of Receipts Towards IT Support Services as Income:
The assessee argued that the receipts were reimbursements under a cost-only arrangement and did not constitute income under section 2(24) of the Act. The Tribunal referenced previous decisions where it was held that such receipts did not constitute income, thus siding with the assessee.

3. Classification of Receipts as 'Fees for Technical Services' (FTS):
The Tribunal examined whether the payments received for IT support services constituted FTS under the Act and Article 12 of the India-Netherlands DTAA. The Tribunal referenced the Co-ordinate Bench's decision in the assessee's own case for the assessment year 2016-17, which concluded that such payments did not constitute FTS under the provisions of the Act or the DTAA.

4. IT Support Services under Article 12(5)(b) of the DTAA:
The Tribunal considered the argument that IT support services did not make available any technical knowledge, experience, skill, know-how, or processes to the service recipient under Article 12(5)(b) of the DTAA. The Tribunal upheld the previous findings that these services did not fall within the purview of FTS under the DTAA.

5. IT Support Services under Article 12(5)(a) of the DTAA:
The Tribunal also considered whether IT support services were ancillary and subsidiary to the application/enjoyment of any right/property/information under Article 12(5)(a) of the DTAA. It reaffirmed the previous ruling that these services did not qualify as FTS under this provision.

6. Classification as 'Royalty':
The Tribunal examined the classification of payments for IT support services as 'Royalty' under the Act and Article 12(4) of the DTAA. It noted that the DRP had already ruled that IT support services could not be classified as 'Royalty.' The Tribunal directed the Assessing Officer to follow the DRP's directions.

7. Directions of the DRP:
The DRP had held that IT support services did not fall under 'Royalty.' The Tribunal upheld this direction, ensuring consistency with the DRP's findings.

8. Short Granting of TDS Credit:
The Tribunal addressed the issue of short granting of TDS credit amounting to Rs. 6,50,837. It directed the Assessing Officer to verify the details and grant the appropriate credit in accordance with the law.

9. Levy of Interest under Section 234B:
The Tribunal noted that the levy of interest under section 234B of the Act was consequential in nature. It directed the Assessing Officer to adjust the interest based on the final assessment.

Conclusion:
The Tribunal allowed the appeal for statistical purposes, directing the Assessing Officer to follow the DRP's directions and previous Tribunal decisions. The appeal was resolved in favor of the assessee, particularly regarding the classification of IT support services and the assessment of total income. The Tribunal emphasized the consistency of its decision with previous rulings and the unchanged facts and laws relevant to the case.