2013 (1) TMI 132 - AT - Income Tax

Shipping business of non-residents - Charterers of the ship - Beneficiary of the freight - India-Netherlands tax treaty DTAA - Income from operation of ships - Freight beneficiary Who is the freight beneficiary - In the charter party executed by the owner of the ship (Iranian entity) and the charterer of the ship (Netherlands entity) - If the charterer (Netherlands entity) is the freight beneficiary, the relief under DTAA between India and Netherlands is available - Whereas there is no such benefit if the freight beneficiary is the owner of the Vessel, the Iranian party Held that - As concluding from the fact of the case and Clause 14 & Clause 13 that the risk and liabilities undertaken by the charterer M/s Puyvast is only in the event of the tonnage being less than 19500 tonnes. Rising of invoice by the charterer and charging 49 Euros per m.tonn is of no relevance, since substantial portion of the freight is paid to the owner of the ship namely, the Iranian entity. Therefore, the substantial freight beneficiary is the owner of the ship, the Iranian entity and the conclusion of the revenue authorities that relief under DTAA is not allowable is justified. In favour of revenue

Summary

Issues:
1. Identification of the freight beneficiary in a charter party.
2. Applicability of Double Taxation Avoidance Agreement (DTAA) between India and Netherlands.
3. Interpretation of clauses 13 and 14 of the charter party document.

Issue 1: Identification of the freight beneficiary in a charter party:
The case involved a dispute over whether the freight beneficiary in a charter party was the owner of the ship or the charterer. The Assessing Officer concluded that the owner, an Iranian entity, was the beneficiary, while the appellant argued that the charterer, a Netherlands entity, was entitled to the benefit.

Analysis: The Revenue authorities relied on clause 14 of the charter party document, which specified that 100% of the freight charges were to be paid to the owner's bank account, subject to commission payments to the charterer and the ship broker. The appellant contended that the charterer bore the risk and liabilities of the voyage, emphasizing clause 13, which outlined the payment structure based on tonnage. However, the authorities upheld that the substantial freight beneficiary was the owner, the Iranian entity, leading to the denial of DTAA benefits to the Iranian company.

Issue 2: Applicability of Double Taxation Avoidance Agreement (DTAA) between India and Netherlands:
The primary contention was whether the DTAA benefits were available to the Netherlands entity as the freight beneficiary, as per the India-Netherlands tax treaty.

Analysis: The appellant argued that the charterer, being the beneficiary of the freight, should benefit from the DTAA provisions. They highlighted the tax residency certificate issued by Dutch authorities and the place of effective management of the enterprise. However, the authorities maintained that since the owner was deemed the freight beneficiary, DTAA benefits were not applicable, especially considering the absence of a DTAA between India and Iran.

Issue 3: Interpretation of clauses 13 and 14 of the charter party document:
The case required a detailed analysis of the clauses in the charter party document to determine the distribution of freight charges and the rightful beneficiary.

Analysis: Clause 14 explicitly outlined the payment process, indicating that the owner received 100% of the freight charges, with commissions deducted for the charterer and ship broker. On the other hand, clause 13 specified the minimum freight payable to the owner based on tonnage, highlighting the additional freight for cargo intake exceeding the minimum. The authorities emphasized that the risk and liabilities primarily rested with the owner, concluding that the owner, the Iranian entity, was the substantial freight beneficiary, justifying the denial of DTAA benefits to the Iranian company.

In conclusion, the appellate tribunal dismissed the appeal filed by the assessee, upholding the authorities' decision regarding the identification of the freight beneficiary, the applicability of DTAA benefits, and the interpretation of the clauses in the charter party document.