2023 (3) TMI 1135 - AT - Income Tax

Income deemed to accrue or arise in India - receipts towards IT support services - 'Fees for Technical Services' ( FTS ) as per India- Netherlands DTAA - whether be treated as fee for technical services under the Act as well as under the DTAA as has been done in earlier years - HELD THAT - This Tribunal for A.Y.2017-18 in assessee s own case had disposed of the appeal 2022 (8) TMI 1263 - ITAT MUMBAI wherein by following its own order for A.Y.2016-17 2020 (3) TMI 1417 - ITAT MUMBAI held that the payment received for IT support services cannot be treated either as fee for technical services or as royalty both under the Act as well as under the DTAA.

Issues Involved:
1. Assessment of total income.
2. Classification of receipts towards IT support services as 'income'.
3. Classification of receipts as 'Fees for Technical Services' (FTS) under the Act and India-Netherlands DTAA.
4. Determination of whether IT support services 'make available' technical knowledge under Article 12(5)(b) of the India-Netherlands DTAA.
5. Classification of IT support services as ancillary technical services under Article 12(5)(a) of the India-Netherlands DTAA.
6. Classification of receipts as 'Royalty' under the Act and India-Netherlands DTAA.
7. Short granting of credit for Tax Deducted at Source (TDS).
8. Levying of interest under section 234B of the Act.
9. Levying of penalty under section 270A of the Act.

Issue-wise Detailed Analysis:

1. Assessment of Total Income:
The assessee contested the assessment of total income at Rs. 3,59,11,69,013 against Rs. 8,35,360 as per the revised computation. The return filed by the assessee declared total income as NIL. The Tribunal noted the discrepancy and the grounds raised by the assessee in challenging the assessment order.

2. Classification of Receipts Towards IT Support Services as 'Income':
The assessee argued that the payments received do not constitute 'income' as they are reimbursements under a cost-only arrangement without markup. The Tribunal considered the nature of the receipts and the cost allocation method employed by the assessee.

3. Classification of Receipts as 'Fees for Technical Services' (FTS) Under the Act and India-Netherlands DTAA:
The Tribunal reviewed the lower authorities' reliance on previous orders for A.Y.2017-18, which classified the payments as FTS. The Tribunal referred to its own decision for A.Y.2017-18, which followed the ruling for A.Y.2016-17, concluding that the payments for IT support services do not constitute FTS under the Act or the DTAA.

4. Determination of Whether IT Support Services 'Make Available' Technical Knowledge Under Article 12(5)(b) of the India-Netherlands DTAA:
The Tribunal examined whether IT support services provided by the assessee made available technical knowledge, experience, skill, know-how, or processes to the service recipients. The Tribunal upheld that the services did not meet the 'make available' criteria under Article 12(5)(b) of the DTAA.

5. Classification of IT Support Services as Ancillary Technical Services Under Article 12(5)(a) of the India-Netherlands DTAA:
The Tribunal assessed whether the IT support services were ancillary and subsidiary to the application or enjoyment of any right, property, or information. The Tribunal concluded that the services did not fall under the definition of FTS as per Article 12(5)(a) of the DTAA.

6. Classification of Receipts as 'Royalty' Under the Act and India-Netherlands DTAA:
The Tribunal reviewed the lower authorities' classification of the payments as 'Royalty'. It was determined that the payments did not qualify as 'Royalty' under the provisions of the Act or Article 12(4) of the DTAA, as they were not for information concerning industrial, commercial, or scientific experience.

7. Short Granting of Credit for Tax Deducted at Source (TDS):
The assessee raised an issue regarding the short granting of TDS credit amounting to Rs. 69,67,972. The Tribunal directed the Assessing Officer to verify the details and grant the TDS credit in accordance with the law.

8. Levying of Interest Under Section 234B of the Act:
The assessee challenged the levy of interest under section 234B. The Tribunal noted that this issue would be consequential in nature, depending on the final assessment of income.

9. Levying of Penalty Under Section 270A of the Act:
The assessee contested the levy of penalty for misreporting/underreporting income under section 270A. The Tribunal found this issue premature for adjudication at this stage and dismissed it.

Conclusion:
The Tribunal allowed the appeal partly, following its previous rulings in the assessee's own case for earlier assessment years. The payments for IT support services were not considered FTS or Royalty under the Act or the DTAA. The Tribunal directed the Assessing Officer to verify and grant the TDS credit and noted that the interest under section 234B would be consequential. The penalty issue was dismissed as premature.

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