2023 (3) TMI 262 - AT - Income Tax

Income deemed to accrue or arise in India - treating the receipt of fees for business support services as Fees for technical services ('FTS') as per Article 12 of the tax treaty between India and Netherlands - Whether services are managerial in nature and hence do not fall within the definition of FTS? - HELD THAT - We note that identical issue was subject matter of consideration of the ITAT in assessee s own case 2023 (3) TMI 165 - ITAT DELHI - The Tribunal had held that the payment received cannot be treated as FTS under Article 12 (5) of India Netherlands DTAA and the addition made is to be deleted. Since facts in the present case are identical to the aforesaid and no distinguishable feature has been pointed out, hence following the precedent we direct that the payment received in this case cannot be treated as FTS under Article 12 (5) of India Netherlands DTAA. Hence, this ground of assessee stands allowed.

Summary

Issues:
1. Treatment of fees for business support services as Fees for Technical Services (FTS) under the tax treaty between India and Netherlands.
2. Levying of surcharge and education cess on income chargeable to tax under the tax treaty between India and Netherlands.
3. Initiation of penalty proceedings under section 270(A) of the Act on the adjustment made in the final assessment order.

Issue 1: Treatment of fees for business support services as Fees for Technical Services (FTS) under the tax treaty between India and Netherlands:
The appeals by the assessee challenged the orders of the Assessing Officer under section 143(3) r.w.s. 144C of the Income-tax Act, 1961, regarding the treatment of fees for business support services as FTS under the India-Netherlands tax treaty. The Assessing Officer concluded that the payment received for business support services was taxable as FTS and added it to the total income of the assessee. The Dispute Resolution Panel (DRP) upheld this decision, emphasizing its earlier direction for the Assessment Year 2014-15. However, the ITAT, referring to a previous order in the assessee's case for AY 2014-15, held that the payment could not be treated as FTS under the tax treaty due to the nature of services provided, which were managerial and not technical or consultancy services. The ITAT ruled that the make available condition was not satisfied, and therefore, the payment could not be considered FTS. As the facts in the present case were identical to the previous case and no distinguishable feature was pointed out, the ITAT allowed the ground of the assessee, directing that the payment received could not be treated as FTS under the tax treaty.

Issue 2: Levying of surcharge and education cess on income chargeable to tax under the tax treaty between India and Netherlands:
The assessee raised a ground objecting to the levy of surcharge and education cess on income chargeable to tax under the India-Netherlands tax treaty. The ITAT's decision on the first issue, where it ruled that the payment for business support services could not be treated as FTS, also impacted the levy of surcharge and education cess on such income. As a result, the ITAT allowed the ground of the assessee regarding the treatment of income for surcharge and education cess, aligning with its decision on the primary issue.

Issue 3: Initiation of penalty proceedings under section 270(A) of the Act on the adjustment made in the final assessment order:
The assessee's appeal also contested the initiation of penalty proceedings under section 270(A) of the Act based on the adjustment made in the final assessment order. However, since the primary issue of treating the payment for business support services as FTS was decided in favor of the assessee by the ITAT, the grounds related to penalty proceedings were not discussed separately in the judgment. The ITAT's decision on the primary issue indirectly impacted the penalty proceedings, as the adjustment made in the assessment order was found to be incorrect.

In conclusion, the ITAT's judgment in this case primarily revolved around the treatment of fees for business support services as Fees for Technical Services under the India-Netherlands tax treaty. The ITAT ruled in favor of the assessee, holding that the payment could not be considered FTS due to the nature of services provided and the failure to satisfy the make available condition. This decision also influenced the levy of surcharge and education cess on the income in question. The grounds related to penalty proceedings were not discussed separately, as the ITAT's decision on the primary issue indirectly impacted the penalty proceedings.