2019 (8) TMI 979 - AT - Income Tax

Income accrued in India - Executive search fee - nature of fee for technical services under Article 12(5)(a) as well as 12(5)(b) of the India-Netherlands Tax Treaty - HELD THAT - As in Assessment Year 2008-09 as well as in Assessment Year 2009-10 the assessing authority itself accepted the stand of the assessee that the Executive search fee was not taxable in India. Factually speaking the aforesaid stand of the Assessing Officer is manifested in the scrutiny assessments finalised under Section 143(3) of the Act continues to hold the field. Thus in this background it was all the more incumbent upon the Revenue in this year to discharge its onus as to why a different stand is being adopted especially considering the fact that the nature and the sources of income in question remains the same. Therefore on this aspect also we are not inclined to uphold the stand of the assessing authority. The payment of said Royalty has been factually found to be at arm s length price for the period under consideration as would be borne out of the order of TPO dated 09.06.2017 in the case of SS India. Therefore once the payments in terms of the Licence Agreement i.e. Royalty has been found to be at arm s length price no further amount can be attributable for using the Spencer Stuart s Worldwide Client List Database Spencer Stuart s Mailing List Database Spencer Stuart s Knowledge Management Resources Pages Spencer Stuart s Board of Director s Database and other data base as per schedule B to the agreement which SSI has procured from SSI BV as part of Licence Agreement (supra) as sought to be made out by the Assessing Officer in order to invoke clause (iv) of Explanation-2 to Sec. 9(l)(vi) of the Act read with Article 12(4) of the India-Netherlands Tax Treaty. Therefore in our view the said action of the Assessing Officer is completely misconceived and is liable to be set-aside and we hold that no charge can be made out under Section 9(l)(vi) read with Article 12(4) of the India-Netherlands Tax Treaty qua the impugned sum of Executive search fee. We conclude by holding that the Assessing Officer erred in holding that the Executive search fee was in the nature of fee for technical services under Article 12(5)(a) as well as 12(5)(b) of the India-Netherlands Tax Treaty and also erred in his alternative conclusion that the same was taxable as Royalty under Article 12(4) of the India-Netherlands Tax Treaty read with clause (iv) of Explanation-2 to Sec. 9(l)(vi) of the Act. Taxability of reimbursement of expenses received by the assessee - AO and DRP have held that the reimbursement of expenses received by the assessee in question are liable to be treated as fee for technical services within the meaning of Article 12(5)(a) of the India-Netherlands Tax Treaty - HELD THAT - We notice that the DRP relied upon the directions of its predecessor DRP in Assessment Year 2011-12 in concluding that the said amount is liable to be taxed in India as fee for technical services . At the time of hearing it was a common ground between the parties that the said stand of the DRP for Assessment Year 2011-12 has since been negated by the Tribunal in assessee s own case vide order dated 01.06.2018 2018 (6) TMI 359 - ITAT MUMBAI and the said order continues to hold the field. - Decided in favour of the assessee

Summary

Issues Involved:
1. Legality of the assessment order.
2. Consideration of factual and legal objections by the DRP.
3. Taxability of executive search fees as fees for technical services.
4. Taxability of executive search fees as royalty.
5. Classification of search fees as ancillary and subsidiary to license fees.
6. Availability of technology/technical know-how through services rendered.
7. Observations in the assessment order.
8. Double taxation and undue hardship.
9. Taxability of reimbursed expenses as fees for technical services.
10. Proof of no profit element in reimbursed expenses.
11. Levy of interest under Section 234B.

Detailed Analysis:

1. Legality of the Assessment Order:
The appellant challenged the assessment order dated 03.10.2017, claiming it was illegal and bad in law. The Tribunal did not specifically address this ground but focused on the substantive issues regarding the nature and taxability of the income in question.

2. Consideration of Factual and Legal Objections by the DRP:
The appellant argued that the DRP did not judiciously and independently consider the factual and legal objections to the draft assessment order. The Tribunal's analysis indicated that the DRP's directions were consistent with the assessing authority's stance from previous years, thus indirectly addressing this issue.

3. Taxability of Executive Search Fees as Fees for Technical Services:
The Tribunal referred to its previous decision in the appellant's case for Assessment Year 2011-12, where it was held that the executive search fees were not taxable as fees for technical services under Article 12(5) of the India-Netherlands Tax Treaty. The Tribunal reiterated that the services did not "make available" technical knowledge, experience, skill, know-how, or processes, nor did they constitute the development and transfer of a technical plan or design.

4. Taxability of Executive Search Fees as Royalty:
The Assessing Officer's alternative stance that the executive search fees could be taxed as royalty under Article 12(4) of the India-Netherlands Tax Treaty was rejected. The Tribunal emphasized that the executive search services were distinct from the license agreement that generated royalty income, which had already been offered to tax.

5. Classification of Search Fees as Ancillary and Subsidiary to License Fees:
The Tribunal upheld its previous finding that the executive search fees were independent of the license fees and were not ancillary or subsidiary to the license agreement. The principal business of SS India was to execute executive searches, and the fees for these services were not related to the enjoyment of rights under the license agreement.

6. Availability of Technology/Technical Know-How Through Services Rendered:
The Tribunal found no evidence to support the DRP/DCIT's conclusion that the services rendered made available technology or technical know-how to SS India. The Tribunal noted that the executive search services did not involve the transfer of technical knowledge or processes.

7. Observations in the Assessment Order:
The appellant objected to certain observations in the assessment order. The Tribunal did not specifically address these objections but focused on the substantive issues.

8. Double Taxation and Undue Hardship:
The appellant argued that taxing the executive search fees would result in double taxation since TDS had already been recovered from SS India. The Tribunal did not specifically address this ground but resolved the issue by determining the non-taxability of the executive search fees.

9. Taxability of Reimbursed Expenses as Fees for Technical Services:
The Tribunal referred to its previous decision, which held that reimbursement of expenses did not constitute fees for technical services under Article 12 of the India-Netherlands Tax Treaty. The Tribunal directed the Assessing Officer to delete the addition related to the reimbursement of expenses.

10. Proof of No Profit Element in Reimbursed Expenses:
The Tribunal reiterated that the reimbursement of expenses was supported by third-party invoices and did not include any profit element. The Tribunal found the DRP's reliance on previous directions without considering the factual evidence provided by the appellant to be misplaced.

11. Levy of Interest Under Section 234B:
The Tribunal noted that the levy of interest under Section 234B was consequential and did not require specific adjudication.

Conclusion:
The Tribunal allowed the appeal, holding that the executive search fees were not taxable as fees for technical services or royalty under the India-Netherlands Tax Treaty. The reimbursement of expenses was also not taxable as fees for technical services. The Tribunal directed the deletion of the additions and resolved the issues in favor of the appellant. The decision for Assessment Year 2014-15 was applied mutatis mutandis to the appeal for Assessment Year 2015-16.