2023 (6) TMI 378 - AT - Income Tax

Income deemed to accrue or arise in India - business connection in India - Appellant s Business Connection (BC) and Permanent Establishment (PE) in India - HELD THAT - The issue relating to Business Connection and Permanent Establishment in India is decided against the assessee by the Tribunal 2021 (10) TMI 1004 - ITAT DELHI wherein the Tribunal followed the decision of the Hon ble Delhi High Court in assessee s own case 2014 (8) TMI 902 - DELHI HIGH COURT and the assessees predecessor s case in deciding the issue of as to whether the assessee was BC/PE in India. Respectfully following the said decision, we hold that assessee has Business Connection and Permanent Establishment in India. The grounds raised by the assessee in respect of BC/PE are decided against the assessee. Excess attribution of Revenue to India operations in respect of PE in India - HELD THAT - For the assessment years 2007-08 to 2014-15 2021 (10) TMI 1004 - ITAT DELHI held that the correct attribution rate to be taken at 15% of gross booking fees. Thus we direct the AO to adopt the attribution rate of Revenue for the Indian operations of its PE in India at 15% of gross booking fees for the year under consideration also. As assessee submits that during the assessment year under consideration i.e. AY 2015-16 also if the attribution rate to the alleged PE is considered at 15% of gross booking fees since India related expenses are more than the attributed gross booking fees to the PE in India it would extinguish the assessment as no further income would be taxable in India. In view of the above submissions of the Ld. Counsel for the assessee we direct the Assessing Officer to check the correctness of the figures before giving effect to this order. Disallowance of other expenses to 30% - HELD THAT - We direct the AO to recompute the income/loss of the assessee by restricting the disallowance of other expenses to 30% for the year under consideration also. Grounds raised by the assessee on this issue are partly allowed.

Summary

Issues Involved:
1. Completion of assessment at the total income of INR 322,67,85,645.
2. Taxability of income under the Double Taxation Avoidance Agreement (DTAA) between India and the Netherlands.
3. Accrual or receipt of income in India.
4. Business connection and Permanent Establishment (PE) in India.
5. Attribution of revenue to Indian operations.
6. Allowability of distribution and other expenses.
7. Charging of interest under section 234B of the Act.

Detailed Analysis:

1. Completion of Assessment at INR 322,67,85,645:
The assessee contended that the Assessing Officer (AO) erred in completing the assessment at a total income of INR 322,67,85,645 against 'NIL' income declared. However, this ground was considered general and required no adjudication.

2. Taxability under DTAA:
The assessee argued that there was no income chargeable to tax in India under the DTAA between India and the Netherlands. This issue was merged with the broader discussion on the assessee's business connection and PE in India.

3. Accrual or Receipt of Income in India:
The assessee claimed no income had accrued or was deemed to accrue in India. This point was also covered under the broader issue of business connection and PE.

4. Business Connection and Permanent Establishment (PE) in India:
The Tribunal referred to its previous order dated 13.10.2021, which followed the decision of the Hon'ble Delhi High Court in the assessee's own case, concluding that the assessee had a business connection and PE in India. The grounds related to BC/PE were decided against the assessee.

5. Attribution of Revenue to Indian Operations:
The Tribunal noted that the issue of revenue attribution was covered by earlier decisions, which held that the correct attribution rate for the Indian operations of the PE should be 15% of gross booking fees. The Tribunal directed the AO to adopt this attribution rate for the year under consideration and verify that Indian-related expenses exceeded the attributed gross booking fees, which would result in no further taxable income in India.

6. Allowability of Distribution and Other Expenses:
- Distribution Expenses: The AO had initially not allowed the deduction of distribution expenses despite the DRP's directions. However, the AO rectified this mistake in a subsequent order, allowing the distribution expenses. Therefore, this ground was dismissed as not pressed.
- Other Expenses: The Tribunal followed its previous decision to restrict the disallowance of other expenses to 30%. The Tribunal directed the AO to recompute the income/loss by applying this restriction for the year under consideration.

7. Charging of Interest under Section 234B:
The issue of charging interest under section 234B was deemed consequential and was restored to the AO for application in accordance with the law.

Conclusion:
The appeal was partly allowed, with the Tribunal directing the AO to:
- Adopt a 15% attribution rate of gross booking fees for the Indian operations of the PE.
- Verify that Indian-related expenses exceeded the attributed gross booking fees, resulting in no further taxable income.
- Recompute the income/loss by restricting the disallowance of other expenses to 30%.
- Apply the provisions of section 234B in accordance with the law.