1977 (4) TMI 2 - SC - Income Tax

Foreign Company - Income Accruing or Arising in India - supply of technical information and know-how technical management etc. - business connection - fee could not be gained to have accrued or arisen in India. Since it has not been established that some of the operations were carried out in India in respect of which the income is sought to be assessed - Assessee s appeal allowed

Issues Involved:
1. Whether the High Court could consider the matter of business connection between the two companies when such a question was not raised earlier.
2. Whether the High Court was correct in basing the tax liability of the assessee-company on the alleged business connection.
3. Whether the High Court failed to examine the question of apportionment under section 42(3) of the Indian Income-tax Act, 1922.
4. Whether the apportionment under section 42(3) and determination of the tax liability could be more than the liability to pay tax on 5% of the total technical fee.

Issue-wise Detailed Analysis:

1. Consideration of Business Connection by the High Court:
The High Court entertained the question of business connection between the American company and the Indian company, which was neither raised before the Tribunal nor considered by it. The High Court overruled the objection of the assessee-company, stating that the question referred was general and comprehensive enough to include the point of applicability of section 42(1) of the Act. However, the Supreme Court found that the High Court was wrong in entertaining this new point at the reference stage. The Supreme Court emphasized that a question of law not raised before the Tribunal or considered by it does not arise out of its order, as per the precedent set in Commissioner of Income-tax v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 (SC).

2. Tax Liability Based on Business Connection:
The High Court based the tax liability of the assessee-company on the alleged business connection, concluding that the technical fee accrued through or from its business connection in India. The Supreme Court disagreed, noting that the High Court mixed the concept of actual accrual or arising of income in the taxable territories with the notion of deemed accrual or arising of income. The Supreme Court clarified that section 42 of the Act concerns itself with deemed accrual or arising of income within the taxable territories. The Supreme Court found that the High Court's approach was incorrect and did not correctly appreciate the scope and applicability of section 42.

3. Examination of Apportionment under Section 42(3):
The Supreme Court highlighted that if the whole of the deemed income can be roped in for tax under section 42(1), no apportionment is required. If not, section 42(3) is attracted, which involves apportioning the profits and gains reasonably attributable to the operations carried out in the taxable territories. The High Court, in its judgment, did not correctly apply this principle. The Supreme Court emphasized that the High Court should have considered whether any part of the operations were carried out in the taxable territories, which it failed to do.

4. Apportionment and Tax Liability:
The Supreme Court found that the High Court was wrong in its view that the activities of the foreign personnel deputed by the American company amounted to a business activity carried on by that company in the taxable territory. The Tribunal's findings were that the services were rendered outside India, and the personnel were employees of the Indian company. The Supreme Court concluded that no part of the activity or operation could be said to have been carried on by the American company in India. Therefore, the provisions of section 42 were not applicable. The Supreme Court held that the technical service fee received by the assessee-company did not accrue or arise in India nor could it be deemed to have accrued or arisen in India, except for the 5% which was already brought to tax by the Income-tax Officer and not appealed by the assessee-company.

Conclusion:
The Supreme Court allowed the appeal, set aside the judgment of the High Court, and answered the question referred by the Tribunal in favor of the assessee and against the revenue. The Commissioner was directed to pay the costs of the appeal as well as the reference to the assessee.

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