2020 (9) TMI 629 - HC - Income Tax

Income by way of fees for technical services - whether the fee made by the assessee to non resident company is in the nature of technical services and would be covered under the scope and ambit of Explanation 2 to Section 9(1)(vii) ? - HELD THAT - The services have been described in the agreement dated 01.03.2006 as information and tracking services. Under the agreement, the non- resident company is required to ensure coordination with the suppliers, so that goods are shipped on time and to undertake necessary coordination and ensure that correct quantity and quality of goods are shipped to assessee. Assessee in consultation with the exporters identifies the manufacturers as well as the quality and price of the material to be imported. The non-resident company is no where involved either in identification of the exporter or in selecting the material and negotiating the price. The quality of material is also determined by the assessee and the non-resident Indian company is only required to make physical inspection to see if it resembles the quality specified by the assessee. For rendering aforesaid service, no technical knowledge is required. Tribunal on the basis of meticulous appreciation of evidence on record, has recorded a finding that non-resident company is not rendering any consultancy service to the assessee. The same would not fall within the services contemplated under Section 9(1)(vii) - The aforesaid finding of fact is based on meticulous appreciation of evidence on record and cannot be termed as perverse. It is pertinent to mention here that even in memo of appeal, no ground has been urged with regard to perversity of the aforesaid finding. - Decided against the revenue.

Issues Involved:
1. Whether the services rendered by the non-resident company are considered technical services under Section 9(1)(vii) of the Income Tax Act, 1961.
2. Whether the inspection and quality assurance services provided by the non-resident company fall under the services contemplated by Section 9(1)(vii) of the Act.
3. Whether the order passed under Section 201(1A) of the Act was correctly set aside by the tribunal.

Detailed Analysis:

Issue 1: Technical Services under Section 9(1)(vii)
The primary question was whether the services rendered by the non-resident company to the assessee qualify as technical services under Section 9(1)(vii) of the Income Tax Act, 1961. The Assessing Officer initially held that the services provided by the non-resident company, which included inspection of fabrics and ensuring timely dispatch, were technical in nature. Consequently, the assessee was deemed to have failed in deducting the Tax Deducted at Source (TDS) at the rate of 10%, resulting in a liability of ?1,73,23,048/-.

The Tribunal, however, found that the non-resident company did not engage in activities requiring technical knowledge. Instead, it merely performed physical inspections to compare materials against samples provided by the assessee, which did not involve technical expertise. Thus, the Tribunal concluded that the services were not technical services and fell outside the ambit of Section 9(1)(vii). This finding was upheld by the High Court, which emphasized that the term "technical services" should be understood in its ordinary sense as per the context of business practices.

Issue 2: Inspection and Quality Assurance Services
The second issue was whether the inspection and quality assurance services provided by the non-resident company fell within the services contemplated under Section 9(1)(vii). The Tribunal determined that the non-resident company’s role was limited to ensuring that the goods met the quality specified by the assessee and coordinating timely shipments. The company did not participate in selecting exporters, negotiating prices, or determining material quality, which were responsibilities of the assessee.

The High Court agreed with the Tribunal’s assessment that these services did not amount to consultancy or managerial services. The court relied on precedents which defined consultancy services as those involving advice or consultation, which was not the case here. The court also noted that the Tribunal’s findings were based on a meticulous appreciation of evidence and were not perverse.

Issue 3: Setting Aside the Order under Section 201(1A)
The third issue was whether the Tribunal correctly set aside the order passed under Section 201(1A) of the Act. The Tribunal had concluded that since the services rendered by the non-resident company were not technical services, the provisions of Section 195(1) regarding TDS were not applicable. Consequently, the assessee could not be treated as an assessee in default for not deducting TDS.

The High Court upheld this conclusion, noting that the Tribunal’s findings were based on a thorough examination of the agreement and correspondences between the parties. The court emphasized that the Tribunal’s factual findings were not challenged as perverse by the revenue, and thus, no substantial question of law arose.

Conclusion:
The High Court answered the substantial questions of law against the revenue and in favor of the assessee, concluding that the services rendered by the non-resident company did not qualify as technical services under Section 9(1)(vii) of the Income Tax Act. Consequently, the appeal was dismissed.

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