2022 (11) TMI 125 - AT - Income Tax

Income deemed to accrue or arise in India - Addition 'as fee for Technical Services (FTS)/Fee for Included Services (FIS) as per the provisions of section 9(1)(vii) and Article 12 of the India-USA Double Taxation Avoidance Agreement (DTAA) - HELD THAT - As in assessee own case 2020 (10) TMI 654 - ITAT DELHI the amount received by the assessee from freight/logistic support services cannot be treated as FTS/FIS either under the Act or under treaty provisions. Accordingly, the addition was deleted. Identical view was expressed by the Tribunal while deciding the appeals for subsequent assessment years, as noted above. Though, the departmental authorities were conscious of the fact that the Tribunal has decided the issue in favour of the assessee in earlier assessment years, however, for the purpose of keeping the issue alive, a contrary decision has been taken. There being no change either in the factual or legal position relating to the disputed issue in the impugned assessment year, respectfully following the consistent view of the Tribunal in assessee s own case in the preceding assessment years, as mentioned above, we delete the addition made by the assessing officer. This ground is allowed. Reimbursement of global account management charges by treating it as FTS/FIS - We find that this is a recurring issue between the parties continuing right from the assessment year 2010-11. On going through the relevant orders of the Tribunal in assessment years 2010-11 to 2015-16 and 2017-18, it is observed that the issue has been consistently decided in favour of the assessee in all these years, while holding that the amount received towards reimbursement of global account management charges is not in the nature of FTS/FIS. Facts being identical, respectfully following the decision of the co-ordinate benches, we delete the addition made by the assessing officer. Ground raised is allowed. Reimbursement of lease line charges as royalty u/s 9(1)(vi) and Article 12 of India-USA DTAA - As in assessee s own case in assessment years 2012-13 to 2015-16 2022 (1) TMI 1290 - ITAT DELHI has held that lease line charges are not in the nature of royalty. The same view was reiterated by the Tribunal while deciding the issue in assessment year 2017-18. It is further relevant to observe, while considering the allowability of payment made towards lease line charges at the hands of assessee s payer, the assessing officer had held that the payment made is in the nature of royalty, hence, the assessee was required to deduct tax at source. Since, the assessee has not done so, the assessing officer made disallowance u/s 40(a)(i) of the Act. However, while deciding the issue in case of the payer, held that the payment made, being not in the nature of royalty, no disallowance under section 40(a)(i) of the Act can be made. Thus, in assessee s own case and the decision of the Hon'ble High Court in case of the payer, the addition made cannot be sustained. Accordingly, we delete it. This ground is allowed.

Summary

Issues:
1. Challenge to final assessment order under Section 143(3) read with section 144C(13) for the assessment year 2018-19.
2. Addition of amount as fee for Technical Services (FTS)/Fee for Included Services (FIS) under section 9(1)(vii) of the Act and Article 12 of the India-USA Double Taxation Avoidance Agreement (DTAA).
3. Addition of reimbursement of global account management charges as FTS/FIS.
4. Addition of reimbursement of lease line charges as royalty under Section 9(1)(vi) and Article 12 of India-USA DTAA.

Analysis:

1. The appeal challenged the final assessment order for the assessment year 2018-19, following directions from the Dispute Resolution Panel (DRP). Ground nos. 1 to 6 were dismissed as not pressed, while ground no. 7 challenged the addition of an amount as FTS/FIS. The assessing officer added the amount to the income of the assessee, which was upheld by the DRP. However, the Tribunal consistently decided in favor of the assessee in previous assessment years, leading to the deletion of the addition in the current assessment year.

2. The addition of reimbursement of global account management charges as FTS/FIS was also challenged. The assessing officer considered the amount received by the assessee as FTS/FIS based on the nature of services provided. However, the Tribunal, following its consistent view in preceding assessment years, deleted the addition as it was not considered as FTS/FIS.

3. The addition of reimbursement of lease line charges as royalty under Section 9(1)(vi) and Article 12 of India-USA DTAA was contested. The assessing officer added the amount to the income of the assessee, which was upheld by the DRP. However, the Tribunal, based on its decisions in previous assessment years, held that lease line charges are not in the nature of royalty, leading to the deletion of the addition.

4. The Tribunal's decision in favor of the assessee in the recurring issues of FTS/FIS and royalty payments was based on consistent rulings in previous assessment years. The Tribunal's approach was to follow its earlier decisions and delete the additions made by the assessing officer, resulting in the partial allowance of the appeal.

Conclusion:
The Tribunal, following its consistent view in previous assessment years, deleted the additions made by the assessing officer regarding FTS/FIS and royalty payments, leading to the partial allowance of the appeal.