2016 (1) TMI 36 - AT - Income Tax

Entitlement for benefit of Indo-UK Double Taxation Avoidance Agreement - the assessee filed return of income as representative assessee of a firm of solicitors based in UK, named Millbank Tweed Hadley and Mccloy . M/s. Zee Telefilms Ltd. had engaged the abovesaid solicitor for its proposed ADR offering. M/s. Zee Telefilms Ltd. paid fees to the solicitors and deduced tax at source of ₹ 70.16 lakhs. Later it filed return of income as a representative of the abovesaid solicitors firm declaring the total income as nil. Accordingly, the entire amount of TDS deducted by M/s. Zee Telefilms Ltd. was claimed as refund. Held that - As decided in P and O Nedlloyd Ltd. v. Asst. DIT (International Taxation) 2014 (11) TMI 564 - CALCUTTA HIGH COURT the benefit of Indo-UK treaty is available to the partnership firm registered in UK even though the firm is not recognised as taxable entity under the taxation provisions of UK. Thus we hold that the assessee is entitled to Indo-UK Double Taxation Avoidance Agreement benefits and accordingly dismiss the appeal filed by the Revenue. - Decided against revenue

Summary

Issues:
- Challenge to the order of the Commissioner of Income-tax (Appeals) regarding the benefit of Double Taxation Avoidance Agreement.
- Interpretation of Indo-UK treaty provisions and taxability of a partnership firm.
- Applicability of Indo-UK treaty benefits to a partnership firm not recognized as a taxable entity in the UK.

Analysis:
1. The Revenue appealed against the Commissioner of Income-tax (Appeals) decision granting the benefit of the Indo-UK Double Taxation Avoidance Agreement to the assessee, a solicitors' firm based in the UK. The Revenue contended that the partnership firm was not a tax resident of the UK and, therefore, not eligible for treaty benefits.

2. The Assessing Officer initially held that the solicitors' firm was not a taxable entity in the UK and, thus, ineligible for the Indo-UK treaty benefits. The Revenue challenged the decision, arguing that the firm did not qualify as a person under the treaty provisions. The dispute centered on whether the firm could be considered a tax resident of the UK for treaty purposes.

3. The Commissioner of Income-tax (Appeals) determined that the fees received by the solicitors' firm were not taxable in India under the Indo-UK treaty as they fell under independent personal services, not technical services. The decision was based on the firm not having a fixed base in India for over 90 days, leading to relief granted under the treaty provisions.

4. The authorized representative cited a Calcutta High Court decision that upheld treaty benefits for partnership firms registered in the UK, even if not recognized as taxable entities in the UK. The Tribunal concurred with this interpretation, emphasizing that the partnership firm, treated as a person under Indian tax laws, qualified for the Indo-UK treaty benefits.

5. Following the Calcutta High Court's ruling, the Tribunal dismissed the Revenue's appeal, affirming the entitlement of the assessee to the benefits of the Indo-UK Double Taxation Avoidance Agreement. The decision upheld that the solicitors' firm, being considered a person under Indian tax laws, could avail of the treaty benefits, leading to the dismissal of the Revenue's appeal.

This detailed analysis outlines the key issues raised in the legal judgment and the reasoning behind the Tribunal's decision regarding the benefit of the Double Taxation Avoidance Agreement and the taxability of the partnership firm under the Indo-UK treaty provisions.