2023 (6) TMI 1428 - AT - Income Tax

Taxability of income in India - Royalty and Fee for Technical Services (FTS) receipts - network fee received by the assessee from Damco India - assessee company M/s Maersk Logistics Services International B.V. (Erstwhile DAMCO International B.V.) is incorporated in Netherland and was engaged in the business of logistics and freight forwarding across the globe - HELD THAT - As decided in assessee own case for assessment year 2018-19 2023 (3) TMI 1519 - ITAT MUMBAI a bare perusal of Article -12 of the DTAA defining the term Royalty would show that the nature of payment received by the assessee does not fall within the meaning of Royalty. The clause -5 of Article 12 defines FTS. A reading of clause -5 shows that FTS is with respect to rendering of any technical or consultancy services. It does not include managerial services. Further, sub-clause (b) to clause (5) refers to make available condition. In the present case nothing has been brought on record by the Revenue to substantiate that any technical knowhow has been made available to Damco India by the assessee. Thus, in view of our above observations we hold that network fee received by the assessee from Damco India is neither in the nature of Royalty nor FTS. Consequently, the aforesaid amount received by the assessee is not exigible to tax under the provisions of the Act or India Netherlands DTAA We uphold the plea of the assessee and direct the AO to delete the impugned addition on account of receipt of network fees from Damco India Private Ltd. Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of reassessment notice and order.
2. Classification of Network Fee as fees for technical services and royalty under the Income-tax Act, 1961.
3. Classification of Network Fee as fees for technical services and royalty under Article 12 of the India-Netherlands DTAA.
4. Validity of the final assessment order due to limitation.
5. Levy of surcharge on tax computed under Article 12(2) of the India-Netherlands DTAA.
6. Levy of education cess on tax computed under Article 12(2) of the India-Netherlands DTAA.
7. Levy of interest for default in payment of advance tax under section 234B.
8. Initiation of penalty proceedings under section 270A(2).

Detailed Analysis:

1. Validity of Reassessment Notice and Order
The appellant contended that the reassessment notice and order were bad in law and void ab initio as they were contrary to the provisions of the Act. The Tribunal did not specifically address this issue in the detailed judgment, implying that the primary focus was on the substantive tax issues rather than procedural validity.

2. Classification of Network Fee under the Income-tax Act, 1961
The appellant argued that the Network Fee of Rs. 29,53,69,631/- should not be treated as fees for technical services or royalty. The Assessing Officer (AO) treated this income as fees for technical services, leading to the deduction of TDS at 10%. The Tribunal referred to previous judgments, including ITA No. 7447/Mum/2017 for AY 2013-14, where it was held that such fees are neither in the nature of Royalty nor Fees for Technical Services. The Tribunal upheld this view, directing the AO to delete the addition on account of the receipt of network fees.

3. Classification of Network Fee under Article 12 of the India-Netherlands DTAA
The appellant contended that the Network Fee should not be classified as fees for technical services or royalty under Article 12 of the India-Netherlands DTAA. The Tribunal, referencing earlier decisions, concluded that the network fees received by the assessee from Damco India are neither in the nature of Royalty nor Fees for Technical Services. The Tribunal directed the AO to delete the impugned addition on account of the receipt of network fees, thereby allowing the appellant's grounds.

4. Validity of the Final Assessment Order Due to Limitation
The appellant argued that the final assessment order was passed beyond the limitation period provided under section 144C read with section 153 of the Act, rendering it void ab initio. The Tribunal did not specifically address this issue, focusing instead on the substantive tax issues.

5. Levy of Surcharge on Tax Computed under Article 12(2) of the India-Netherlands DTAA
The appellant argued against the levy of surcharge on tax computed under Article 12(2) of the DTAA. The Tribunal did not discuss this issue in detail, leading to the dismissal of this ground.

6. Levy of Education Cess on Tax Computed under Article 12(2) of the India-Netherlands DTAA
Similar to the surcharge issue, the appellant contested the levy of education cess. The Tribunal did not provide a detailed discussion on this issue, resulting in the dismissal of this ground.

7. Levy of Interest for Default in Payment of Advance Tax under Section 234B
The appellant challenged the levy of interest under section 234B. The Tribunal deemed this issue as consequential in nature and dismissed the ground.

8. Initiation of Penalty Proceedings under Section 270A(2)
The appellant contested the initiation of penalty proceedings under section 270A(2). The Tribunal considered this issue premature and dismissed the ground.

Separate Judgments Delivered:
The Tribunal adjudicated both appeals together, applying the findings of ITA No. 909/Mum/2023 mutatis mutandis to ITA No. 937/Mum/2023. The Tribunal upheld the appellant's grounds regarding the classification of Network Fees but dismissed other grounds related to procedural and consequential issues.

Conclusion:
The appeals were partly allowed, with the Tribunal directing the deletion of the addition on account of the receipt of network fees while dismissing other grounds related to procedural and consequential issues. The Tribunal's decision was consistent with earlier judgments in similar cases, reinforcing the non-taxability of network fees as Royalty or Fees for Technical Services under both the Income-tax Act and the India-Netherlands DTAA.