2022 (9) TMI 111 - AT - Income Tax

Income deemed to accrue or arise in India - FTS - amounts payable to the non-resident after grossing up - Payment for training services - India does not have a DTAA with Hongkong - fees paid to non-residents for training services - whether payment by the assessee to the non-resident can be regarded as a fee for technical services (FTS) within the meaning of Explanation to section 9(1)(vii)? - HELD THAT - Fee for the provision of a service will not be a technical fee, unless that special skill or knowledge is required when the service is provided to the customer. Employees developing leadership skill through service provided by the non-resident do not use such knowledge when they provide BPO service to the customers of the assessee and hence, the services rendered cannot be regarded as technical service. The service cannot be regarded as managerial service because the service rendered by the non-resident does not teach the employees of the assessee how the business has to be run but relates only developing leadership skills and hence the service provided by the non-resident cannot be regarded as managerial services. It cannot be regarded as consultancy service also because provision of advice by someone, such as a professional, who has special qualifications allowing him to do so, would be consultancy service but imparting training in leadership skills cannot be said to be providing advice by a professional. Assessee in the case of Ershisanye Construction Group India (P) Ltd. 2017 (8) TMI 736 - ITAT KOLKATA , the tribunal had to deal with taxability of training fee paid to non-resident, being a tax resident of Republic of China - The definition of FTS under the DTAA between India and China and under the Act was identical. Assessee the sum paid to non-resident cannot be regarded as FTS within the meaning of Sec.9(1)(vii) and cannot be taxed in the hands of the non-resident in India. Consequently, the assessee would be entitled to grant of refund of taxes paid together with interest thereon as per law. The question of rate of tax to be deducted on payments made to non-resident in terms of Sec.206AA of the Act becomes academic and hence not adjudicated - Appeal by the assessee is allowed.

Summary

Issues Involved:
1. Whether the payment made by the assessee to the non-resident for training services qualifies as "Fees for Technical Services" (FTS) under Section 9(1)(vii) of the Income Tax Act, 1961.
2. Whether the assessee is entitled to a refund of the Tax Deducted at Source (TDS) paid on the grossed-up amount of the payment to the non-resident.

Detailed Analysis:

Issue 1: Qualification of Payment as "Fees for Technical Services" (FTS)
The primary issue was whether the payment made by the assessee to the non-resident for training services could be classified as "Fees for Technical Services" under Section 9(1)(vii) of the Income Tax Act, 1961. The assessee argued that the payment for training services does not amount to FTS. The Tribunal examined various judicial precedents and the nature of the services provided.

1. Nature of Services Provided:
- The services rendered by the non-resident were described as "Leadership Growth Progress Review" and "Train-the-Coach Certification Works," aimed at developing leadership skills.
- The Tribunal referred to the OECD Report on e-commerce, which clarified that the mere use of technology in providing a service does not make it technical. Special skills or knowledge must be used when the service is provided to the customer.
- The Tribunal concluded that the training in leadership skills did not involve special technical knowledge or skills that could be used by the employees in their BPO services.

2. Judicial Precedents:
- The Tribunal cited several decisions where payments for training services were not considered FTS, including Lloyds Register Industrial Services (India) (P.) Ltd v ACIT and Ershisanye Construction Group India (P.) Ltd v DCIT.
- The decision of the Hon'ble Delhi High Court in the case of Director of Income Tax (International Taxation) Vs. Panalfa Autolectrick Ltd. was also relied upon, which held that commission paid to a non-resident for procuring export orders could not be regarded as FTS.

3. Definitions and Interpretations:
- The Tribunal reiterated that technical services require special skills or knowledge related to a technical field, managerial services involve performing management functions, and consultancy services involve providing advice by someone with special qualifications.
- In the present case, the training provided did not fall under any of these categories as it was merely aimed at developing leadership skills.

Issue 2: Entitlement to Refund of TDS
Since the Tribunal concluded that the payment made to the non-resident could not be classified as FTS, the next issue was whether the assessee was entitled to a refund of the TDS paid on the grossed-up amount.

1. Section 248 of the Income Tax Act:
- The assessee had filed an appeal under Section 248 of the Act, seeking a declaration that the payments made to the non-resident were not chargeable to tax in India and thus, the TDS paid should be refunded.
- The Tribunal agreed with the assessee's contention and held that since the payment was not taxable as FTS, the assessee was entitled to a refund of the TDS paid.

2. Interest on Refund:
- The Tribunal also held that the assessee is entitled to interest on the refund as per the law.

Conclusion:
The Tribunal concluded that the payment made by the assessee to the non-resident for training services does not qualify as "Fees for Technical Services" under Section 9(1)(vii) of the Income Tax Act, 1961. Consequently, the assessee is entitled to a refund of the TDS paid on the grossed-up amount, along with interest. The appeal by the assessee was allowed.