Tax Management India. Com
Law and Practice  :  Digital eBook
Research is most exciting & rewarding
  TMI - Tax Management India. Com
Follow us:
  Facebook   Twitter   Linkedin   Telegram

Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2024 (11) TMI AT This

  • Login
  • Cases Cited
  • Summary

Forgot password       New User/ Regiser

⇒ Register to get Live Demo



 

2024 (11) TMI 361 - AT - Income Tax


Issues Involved:

1. Taxability of interconnectivity usage charges as Fee for Technical Services (FTS).
2. Alternative characterization of interconnectivity usage charges as other income under section 56 of the Income-tax Act and Article 24 of the India-Oman DTAA.

Detailed Analysis:

1. Taxability of Interconnectivity Usage Charges as Fee for Technical Services (FTS):

The primary issue in the appeal was whether the interconnectivity usage charges received by the assessee from an Indian entity could be classified as Fee for Technical Services (FTS) under the Income-tax Act and the India-Oman Double Taxation Avoidance Agreement (DTAA). The assessee, a non-resident corporate entity incorporated in Oman, provided roaming and termination of international voice traffic services to an Indian corporate entity. The Assessing Officer initially treated these receipts as royalty income, but the Dispute Resolution Panel (DRP) recharacterized them as FTS, citing Explanation 2 to section 9(1)(vii) of the Act, which defines FTS as services involving managerial, technical, or consultancy elements.

The assessee argued that the services were fully automated and did not involve any human intervention, thus not qualifying as FTS. The Delhi High Court in CIT v. Bharti Cellular Ltd. and the Karnataka High Court in CIT v. Vodafone South Ltd. had previously ruled that technical services require a human element, which was absent in the automated interconnectivity services provided by the assessee. The Tribunal agreed with the assessee, noting that the services were automated and involved no human interface, thus not meeting the criteria for FTS as defined in the Act or the DTAA.

2. Alternative Characterization as Other Income:

The DRP alternatively suggested that if the receipts could not be treated as FTS, they should be taxed as other income under section 56 of the Act and Article 24 of the India-Oman DTAA. The Tribunal examined whether the receipts could be classified under any other head of income before defaulting to the residual category of other income. It was noted that the interconnectivity services were part of the assessee's regular business activities, indicating that the income was business-related.

The Tribunal concluded that the interconnectivity usage charges should be treated as business income under Article 7 of the DTAA. Since the assessee did not have a Permanent Establishment (PE) in India, the business profits were taxable in Oman, the country of residence. The Tribunal emphasized that the income's character as business income could not be altered simply because it was not taxable in India under a particular head due to treaty provisions.

In conclusion, the Tribunal held that the interconnectivity usage charges were not taxable in India as FTS or as other income, allowing the appeal on these grounds. The decision was supported by judicial precedents that underscored the necessity of a human element for services to qualify as technical under the relevant tax provisions. The appeal was partly allowed, and the stay application was dismissed as infructuous.

 

 

 

 

Quick Updates:Latest Updates