9911796707
TMI Blog2019 (8) TMI 1643X X X X Extracts X X X X X X X X Extracts X X X X ..... TAA. This is a tentative finding based on facts as presented by the Applicant. Further, even if it is assumed that there was a PE of the Applicant, the business income attributable to such PE only, will be taxable in India - no material to conclude that the work relating to offshore supply of contract was executed from PE of the Applicant in India, if any - if the Department comes to the conclusion that there is a PE based on stay of employees of the Applicant for a period exceeding six months after the issue of Letter of Intent dated 27-1-2011, the income in respect of off-shore supply contract, to the extent it is attributable to the operation of the PE, can be subjected to tax in the hands of the Applicant as per Article 7.1 of DTAA. Fee for Technical Services - In the instant case the Applicant by providing the design dossier, design software, drawing and documentation, quality system manuals etc. is found to have rendered technical or consultancy service. Further, by providing the drawings, designs and engineering aspects as envisaged in the contract in conjunction with the Minutes of Meeting the Applicant has rendered technical/consultancy service. Even if the services were r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we do not have any straitjacket sacrosanct formula for such attribution. It would be appropriate if the AO determines this aspect and gives value to the FTS, as these are included in the sale price of offshore supply of equipments, after making further necessary enquiries and giving a basis thereof. It has to be appreciated that in a given case, the nature of services to be rendered may be quite cost or labour intensive, while in another case, it may not be so. Therefore, it will be appropriate for the AO to collect information in respect of similar/identical cases for the purpose of assigning value to FTS and also after making necessary enquiries/obtaining information from the Employer in this regard. Further, the AO shall determine the FTS after allowing an opportunity to the Applicant in respect of the information collected in this respect. Ruling - The amounts received/receivable by Toshiba from MUNPL for Offshore supply of equipments and materials etc. under offshore contract ( Offshore supply contract ) read with letter of Award ( NOA for Offshore supply contract ) is, prima facie, not liable to tax in India as the sale was completed outside India and there was no accrual o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SW) to act as an Assignee of Toshiba for the second and third contract for the MTPP. Toshiba JSW had submitted an Unequivocal Consent Letter dated 8th February, 2010 to NTPC confirming that it was willing to work as an independent contractor to MUNPL for onshore supply and onshore service contracts, in case the contracts were awarded to Toshiba. Pursuant to evaluation of techno-commercial bids and financial bids, three separate contracts were awarded in connection with MTPP: (a) The first contract for offshore supply to the Applicant; (b) The second contract for onshore supply to Toshiba JSW; and (c) Third contract for onshore services to Toshiba JSW. The Notification of Award (NOA) was communicated to the Applicant for the First contract and to Toshiba JSW for the Second and Third contract. 3. It is in connection with the first contract for offshore supply of equipment and materials that the Applicant has approached this Authority and filed the present application. The Applicant has filed an application dated 28th November, 2012 seeking advance ruling under section 245Q(1) of the Income-tax Act, 1961 on the following question related to the transaction: 1. On the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the supply of equipment of materials was from outside India and no part of such remuneration had accrued or arisen in India. The Applicant has relied upon the following decision in support: (i) Ishikawajma Harima Heavy Industries Limited (288 ITR 408) (SC). (ii) Michelin Tamil Nadu Tyres Private Limited (AAR No. 1218 of 2011). (iii) Hyosung Corporation v. DIT (314 ITR 343), AAR. (iv) L S Cables Limited (337 ITR 35), AAR, confirmed by Delhi High Court (234 Taxman 427). (v) Joint Stock Company Foreign Economic Association 'Technopromoexport' (322 ITR 409). (vi) SEPCO III Electric Power Construction Corporation (342 ITR 213) AAR. The Applicant submitted that the facts of the present case were similar to those examined by the Courts and this Authority in the various decisions. Submission of the revenue 5. On the other hand the revenue submitted that the first contract was for CIF/CIP supply of plant & machinery including type test charges and mandatory spares to be supplied from abroad and the revised amount of this contract was JPY 1177,14,04,320 and USD 1,87,12,021. The second contract was for Ex-works (India) supply of domestically manufactured plant and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the other parts. The supply of offshore equipments was an integral part and parcel of the main contract and the same cannot be severed and treated differently. The revenue pointed out that the three contracts were part of one unified contract was also corroborated by the fact that unconditional corporate guarantee towards performance and security was provided by the Applicant. According to revenue, the Applicant should not be given benefit for artificially separating the composite contract into three contracts in a pre-decided and pre-ordained manner, in a bid to separate the so-called offshore part of the contract with the onshore part in order to avoid payment of tax in India. 7. The revenue has also taken a plea that the Indian entity had to pay a specified agreed amount for the whole project and it was upon the Applicant to divide and load the costs on the artificially segregated contracts with an intention to reduce its tax liability by loading the maximum cost on the offshore supplies. The entire arrangement was totally opaque as far as loading of value/cost on offshore supplies, onshore supplies and onshore service components were concerned. The revenue suspected that lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct included payments on the account of drawing and designing services. Therefore, a portion of the total consideration under the contract is attributable to fee for technical services (FTS), which is liable to tax in India. 10. The revenue also submitted that the ratio of the decisions as relied upon by the Applicant were not applicable to the present case as the facts were different. Further, reliance was placed on the decision of Madras High Court in the case of Ansaldo Energia SPA (310 ITR 239) in support of the plea that in case the non-resident has a PE in India and it was involved in the transaction of off-shore supply of equipment, the income attributable to the operations carried out through PE was taxable in India. Rejoinder of the Applicant 11. In rejoinder the Applicant strongly denied the contention of the revenue that the contract was a composite one which was split by the Applicant into three contracts. It was pointed out that the three contracts were a pre-condition of Invitation of Tender Bid and the tender itself envisaged three separate contracts (for offshore supply, onshore supply and onshore services) demarcating the scope of each contract with an exhaustive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ascending order as L1, L2, L3 and so on. Further, based on the above Evaluated Bid Price, the "Award Criteria" stipulated in the bid documents was applied, which clearly provided that Customer would award the contracts for 2 projects to the lowest bidder, another 2 to the second lowest bidder and balance 1 project to the third lowest bidder. However, the award to the L1, L2 and L3 bidder would be made only after matching the lowest Evaluated Project Price. The Applicant submitted that in spite of submitting its own independent price bids for each project, the contracts for Meja project was awarded by the Customer to the Applicant and Toshiba JSW only after matching the lowest Evaluated Project Price of Meja quoted by other bidder. In fact, the Applicant had offered significant discount to the Customer in order to match the lowest Project Price quoted by the other bidder for the project. Considering the transparency in the bidding process and price evaluation/award of the contact, there was no question of artificial loading of the price by the Applicant in the offshore supply contract. Further, as per bid document in order to provide price preference to indigenously ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to assessment by the Transfer Pricing Officer having jurisdiction over Toshiba JSW and such transactions were accepted to be at arm's length without drawing any adverse inference. Thus, technical support provided by the Applicant to Toshiba JSW under separate contract (in pursuance of the Technology Transfer Agreement) would have no bearing on determining taxability of the income arising in hands of the Applicant under the present offshore supply contract in relation to which the ruling is being sought before this Authority. Findings and order 15. We have carefully considered the facts of the case, the submissions of the Applicant and the objections raised by the revenue. The question raised by the applicant is with reference to the taxability of the amounts received/receivable by Toshiba from MUNPL for Offshore supply of equipments and materials etc. under offshore contract No. MUNPL/C&M/Contracts/12-13/FC/COA-13 dated 29 May 2012 ('Offshore supply contract') read with letter of Award No. MUNPL/C&M/Contracts/12-13/FC/NOA-13 dated 1 May 2012 ('NOA for Offshore supply contract'). It is seen that NTPC had invited bids for Steam Turbine Generator (STG) pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnee in its bid to execute the Second Contract and/or the Third Contract and has also furnished written unequivocal consent of the proposed Assignee to work as an independent Contractor on the terms and conditions offered by the bidder and if the Employer is satisfied with the capacity and experience of the Assignee proposed in the bid, the Employer will enter into the 'Second Contract' and/or the "Third Contract' with the Assignee. However, if the Employer in its judgement does not find acceptance of the Assignee proposed in the bid as its contractor, then on the request of the Employer, the bidder shall have option to propose an alternate Assignee on the same terms and conditions and cost as offered in its bid. It is expressly understood and agreed that in case the option is not exercised by the Bidder or if the Assignee fails to enter into Contract(s) with the Employer or if the Employer in its judgement does not find acceptance of the Assignee as its Contractor, then the foreign bidder shall be obliged to enter into and execute all the three Contracts with the Employer covering the entire scope of work envisaged in the bidding documents on the same terms and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 to NTPC confirming that it was willing to work as an independent contractor in case the contract was awarded to the Applicant. 17. The clause 19.6 of the bid document stipulated that after evaluation of Stage-I (Techno-Commercial) bid, the Employer may invite individual bidders for clarification and may issue amendments/clarifications, if necessary. Thereafter, Stage-II (Price) bid will be invited from the bidders who were considered qualified and whose bid was considered Techno-Commercially responsive. The Applicant had submitted the bid with the proposal to assign second and third contract to Toshiba JSW. The Applicant had submitted techno commercial bid on 11/02/2010 and price bid on 18/10/10, subsequent to which discussions and meetings were held from 25/10/10 to 15/11/10 resulting in Minutes of Meeting in respect of Commercial, Technical, QA&I and Work Schedule. The Applicant was offered to match Lowest Evaluated project price for Meja Project which was accepted vide Applicant's letter No. 2RI-0049 dated 01/11/2010, where upon a Letter of Intent (LOI) dated 27/01/2011 was issued to the Applicant for CIF Supply (Indian port of entry) of STG Package for MTPP. Thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of origin to that country and upon endorsement of despatch document in favour of the Employer. Further, clause 34 of GCC specified that the Contractor shall at its expense, take out and maintain the insurance and that the Employer shall be named as co-insured under all insurance policies. The relevant clause 34.2 of GCC was as under: The Employer shall be named as co-insured under all insurance policies taken out by the Contractor pursuant to GCC Sub-Clause 34.1, except for the Third Party Liability, Workers Compensation and Employer's Liability Insurances, and the Contractor's Subcontractors shall be named as con-insureds under all insurance policies taken out by the Contractor pursuant to GCC sub- clause 34.1 except for the Cargo Insurance During Transport, Workers' Compensation and Employer's Liability Insurances. 20. The Contract price and the Terms of Payment was stipulated in Article-2 of the offshore contract agreement and clause 4 of the NOA, which stipulated that total target price of JPY 11,771,404,320 + USD 18,712,021 will be paid to the Applicant. The terms for payment of FOB price component of Plants and Equipments was as under: (a) 15 % of total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple that under CIF contract, the property in the goods, passes once the documents are tendered by the seller to the buyer or the agent, as required under the contract. It was further held that where the seller retains control over the goods by either obtaining a bill of lading in his name or to his order, the property in the goods does not pass to the buyer until he endorses the bill to the buyer and delivers the document to him. As already mentioned earlier, in the instant case the seller did not retain control over the goods as the invoice and the bill of lading was in the name of Meja Urja Nigam Private Limited and not in the name of the Applicant or any other agent. Therefore, the title to and property in the goods shipped by the Applicant at the foreign port was transferred at the port of shipment itself. This event took place outside the territory of India and the income arising out of such sale transaction cannot be said to have accrued or arisen in India. The Applicant did not reserve the right of disposal of goods during transit or otherwise. The goods were not in the custody of the Applicant till the stage of erection and installation but might have been in the custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Second contract and the Third contract and it is stipulated that any breach under the Second contract and Third contract shall automatically be deemed as a breach of the First contract. Similarly, in the NOA for Ex-works (India) supply of equipments, Toshiba JSW has been made fully responsible for the works to be executed under the First contract and Third contract with stipulation that any breach under the First contract and Third contract shall automatically be deemed as breach of the Second contract. An identical stipulation is found in NOA for onshore services wherein Toshiba JSW has been made fully responsible for the works to be executed under the First contract and Second contract as well. It is thus found that the cross-fall breach clause was a standard clause which was incorporated in all the three contracts. This clause did not place the entire onus of the contracts on the Applicant; rather the onus was equally cast on the Applicant as well as on Toshiba JSW. It is clear from the terms of the contract that responsibility test was not a material event for passing of the title and risk in the equipments supplied. So far as providing unconditional corporate guarantee is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India can be taxed in India. (2) Since all parts of the transaction in question, i.e. the transfer of property in goods as well as the payment, were carried on outside the Indian soil, the transaction could not have been taxed in India. (3) The principle of apportionment, wherein the territorial jurisdiction of a particular state determines its capacity to tax an event, has to be followed. (4) The fact that the contract was signed in India is of no material consequence, since all activities in connection with the offshore supply were outside India, and therefore cannot be deemed to accrue or arise in the country. In view of the clause (a) of Explanation 1 to Section 9(1)(i) and respectfully following the decision in the case of Ishikawajima Harima Heavy Industries Ltd., we are clear that no income arising in the hands of the Applicant from the off-shore supply of equipments can be held to be chargeable to tax in India, under the Income-tax Act 1961, as the sale was completed outside India and there was no accrual or deemed accrual in India. The essence of this decision of the Hon'ble Supreme Court, was also followed in the cases of Hyosung Corp. (supra) and Michelin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to assess percentage of taxable profit properly. Thus the facts of this case are found to be different and distinguishable from the facts of the present case. Further, the principle that income from offshore supply of equipments is not liable to tax in India was not controverted in this case as well. Whether the Applicant has a PE in India? 28. The revenue has contended that in view of the continuity of the activities and the onus cast on the Applicant for successful completion of the project, it had the permanent establishment (PE) in India. It was contended that elaborate pre-bid work was done which involved site visits, surveys, inspection at various places through its employees and, therefore, the Applicant had a Fixed Place PE. Further that the Applicant had a business connection as stipulated u/s 9(1)(i) of the Act. As per Article 5.1 of Indo-Japan DTAA the term 'permanent establishment' means a fixed place of business through which the business of enterprise is wholly or partly carried on. The other relevant features of the PE as per the DTAA which are relevant in the present case are as under:- 5.2 The term 'permanent establishment' includes es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue. In fact the Applicant had no role in the installation and the contract for installation, testing, commissioning of STG Package was assigned to Toshiba JSW under the Third contract. The revenue has relied upon the pre-bid activities including Minutes of the Meeting between the applicant and NTPC authorities. All these work including the Minutes of Meetings were held prior to the award of the contract to the Applicant. At the pre-bid stage and during the Meetings, the Applicant could never have been certain that the contract will be awarded to him. A permanent establishment connected with the installation or assembly of the project or the supervisory activities, therefore, could not have come into effect prior to the actual award of the contract or at least indication thereof. The revenue has contended that employees of the Applicant must have visited India for the purpose of bidding and discussions and their stay in hotel prior to award of contract would constitute Fixed Place PE. Such an assumption is misplaced and fallacious. The business of the Applicant can be said to have commenced only after the Contract was awarded to it or the decision to award the Contract was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vil & Structural drawings released for construction shall be furnished to Toshiba for their reference and comments, if any, with regard to interface with respect to Toshiba utilities. - It has been decided that Details Engineering information schedule shall be discussed and finalized at the earliest. However, Critical Engineering Drawing List along with agreed Engineering information Schedule required for Civil Works is enclosed as Annexure-III. - Before the meeting Toshiba shall submit Turbine start up curves, typical Turbine & auxiliaries start up/shut down and operating procedure including emergency handling procedure, Required HP-LP bypass operating philosophy, Auxiliary steam requirement etc. On the basis of the above discussions, the revenue contended that the Applicant had provided technical services by transferring the know-how and skill to the employees of NTPC to enable them to run the plant/generator in a proper manner. It was also submitted that as per "technical specifications/scope of work" as per bid document and the GCC also, it was evident that designing, engineering, inspection and testing etc. were part of offshore supply contract and that the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been executed without the provision of design, drawing and the engineering services. We have to, therefore, examine as to under which contract the design, drawing and engineering service was provided and who had rendered this service. 33. It is found that the offshore supply contract required the Applicant to design & provide engineering, manufacture and supply the equipments. The scope of work under this contract as per clause 2.1 of NOA is once again reproduced below: The complete scope of work under this NOA shall include Design, Engineering, Manufacturing, Shop Fabrication, Assembly, Inspection and Testing at Supplier's work, Type Testing, Packaging, Forwarding to site of all CIF (Indian Port of Entry) equipments/materials/Special tools and tackles and Mandatory Spares etc. covered under Steam Turbine Generator Package for Meja Thermal Power Project( 2*660 MW), as per Bidding Document and its Amendments/Clarifications/Errata read in conjunction with agreed Minutes of Meeting. As per this NOA, the complete scope of the work included design and engineering services and the Applicant has submitted that the design and engineering work as referred in this contract was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for following services under the contract: 1 Local Transportation including port clearance and port charges and inland insurance charges for plant and equipment covered under the First Contract and Second Contract INR 271,093,075 2 Local Transportation including port clearance and port charges and inland insurance charges for Mandatory Spares covered under the First Contract and Second Contract INR 23,189,201 3 Installation Services JPY 766,725,421 +INR 1,321,163,136 4 Total JPY 766,725,421 + INR 1,615,445,412 Therefore, the contention of the Applicant that design, drawings and engineering services were part of onshore service contract is not found to be correct as evident from the scope of work and the terms of payment as enunciated in this contract. Only the work of installation, supervision, testing and commissioning of all equipment and materials, and all other services leading to successful "completion of facilities" was entrusted in the third contract for onshore services. The work of design, drawings and engineering services is connected with planning of the project which is quite distinct and different from the work of installation and commissionin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssential data required for Employer's Station C&I package referred at clause No. : 1.00.00 of section-VI Part-A, Sub Section-VII (Page 1 to 3 of 3) of technical specification documents related to NTPC for reference. For the items against which M/s Toshiba has indicated that the details shall be furnished later, M/s Toshiba confirmed to furnish the required information before NOA. M/s Toshiba further clarified that these are indicative and shall be further discussed and finalized during detailed engineering as per the provisions of the contract. These documents shall be submitted by M/s Toshiba to NTPC for review and approval as per the EIFS for this contract. The document is attached at Annexure-I M/s Toshiba confirmed to supply control system fully meeting all the requirements including provenness requirement indicated in the specification and the amendments. The details that were furnished alongwith user certificate during the meeting, which are attached at Annexure-II…. Similarly, it was decided that Detail Engineering information schedule shall be discussed and finalized at the earliest. The Critical Engineering Drawing List was submitted vide Annexure-III to this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 (Outline, loading of TG foundation and Embedded detail of Pedestal) Based on inputs furnished at item 10, NTPC shall work out the TG column and beam sizes which shall be furnished to bidder for Information/Interface. Observation/comments if any shall be communicated to NTPC within 3 weeks of submission 11 Write up and design criteria for TG foundation P-4, F12 Typical drawing for TG column arrangement shall be furnished by Bidder in six weeks. 12 Insert plates/embedment details on TG foundation sub-structure F16 No emebedments needed for platforms 13 Insert plates/embedment details of TG deck F28 Refer drawing in item no 10 14 Data sheet for steel helical spring and viscous dampers Indicating the various units available and the properties for load carrying capacity stiffness and damping F10 Standard catalogue of subvendor for springs shall be provided in 10 weeks TDBFP AND MDBFP FOUNDATIONS 15 Foundation Loading and GA of deck for TDBFP including opening and insert details. Data sheet for steel helical springs and viscos dampers to be used in MDBFP foundation. P4,F22 Standard catalogue of subvendor for springs shall be provided in 10 weeks, Loading locatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee from abroad. In fact, such Design and drawings deal with every aspect of the planning and layout of the plant right from foundation till the completion of the entire project. All such drawings are customized. Further, the agreed Engineering coordination procedure was attached as Annexure-VII to this Minutes of Meeting. The same stipulated that Toshiba will take care of all the interface requirements within their scope of supply and that information category drawings/documents shall contain all the relevant information for the execution of the project. Part-2.4 of the Engineering coordination procedure stipulated as under:- TOSHIBA shall furnish a "Master Drawing List" based on agreed engineering information schedule within two week from date of NOA which shall contain comprehensive list of all drawings/documents/calculations envisaged to be submitted during the detailed engineering to NTPC. Such list shall clearly indicate the purpose for submission of these drawings i.e. "FOR APPROVAL" or "FOR INFORMATION". It was also agreed that the Master Drawing List shall be updated every six months or as felt necessary and that Toshiba while s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . These drawings, designs and engineering aspects as mentioned in the Minutes of Meeting, which are part of Notification of Award, are not in respect of offshore supply of materials but in respect of actual lay out and installation of the plant in India. 39. The Applicant has submitted that it had entered into a Technology Transfer Agreement with Toshiba JSW, in terms of which requisite technical support was being provided by the Applicant to Toshiba JSW. Further that the technical services rendered by the Applicant were for the purpose of business of Toshiba JSW to develop the manufacturing capability in India as well as technology absorption as intended by Government of India. However, it is found from the Minutes of Meeting that the technical services were provided by the Applicant not to Toshiba JSW but to NTPC directly on their e-desk Portal. The requirement of Technology Transfer Agreement was for absorption of the technology and was as per the condition in bid document. Clause 3.2.0 of Bid Data Sheet of the Bid Document stipulated for transfer of technology from the Bidder to the Employer. The said clause is reproduced below:- 3.2.0 A valid technology transfer agreement in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these services in the NOA for onshore services issued to the Toshiba JSW. The Applicant has admitted that the design and drawing services were provided by it to the customer directly through e-desk Portal of NTPC. By providing the design, drawing and engineering aspects as discussed in the Minutes of Meeting, the Applicant had rendered technical service. 42. As per Explanation 2 of Section 9(1)(vii) of the Act, FTS means any consideration for rendering any managerial, technical or consultancy services including provision of services of technical or other personnel. Further, the Explanation to section 9(2) of the Act stipulates as under: Explanation.-For the removal of doubts, it is hereby declared that for the purposes of this section, income of a non-resident shall be deemed to accrue or arise in India under clause (v) or clause (vi) or clause (vii) of sub-section (1) and shall be included in the total income of the non-resident, whether or not,- (i) the non-resident has a residence or place of business or business connection in India; or (ii) the non-resident has rendered services in India. In view of this Explanation, it is not necessary that the non-resident should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials and equipments, it is imperative that the cost for design dossier/design software, drawing and documentation engineering work etc; is embedded in these contracts only. Once the drawings, design and engineering services have been provided but have not been exclusively charged, the natural corollary which follows is that the charges for providing these services were 'included' in the sale price of equipments. In such a case, the sale price so charged is required to be split towards the price of goods simplicitor and compensation for fee for technical services that the Applicant has rendered. Our view is fortified from the judgment of the Hon'ble Delhi High Court in the case of DIT v. Rio Tinto Technical Services [2012] (340 ITR 507) (Delhi) which reversed the finding given by the Tribunal that the consideration received was for a composite contract and hence could not be bifurcated. It was held by the Hon'ble Court that in the absence of any bifurcation, an estimated allocation has to be made for tax purposes, as under: The Tribunal has also erred in holding that the extracted portion of the agreement establishes and shows that the consideration received w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed/receivable by Toshiba from MUNPL for Offshore supply of equipments and materials etc. under offshore contract No. MUNPL/C&M/Contracts/12-13/FC/COA-13 dated 29 May 2012 ('Offshore supply contract') read with letter of Award No. MUNPL/C&M/Contracts/12-13/FC/NOA-13 dated 1 May 2012 ('NOA for Offshore supply contract') is, prima facie, not liable to tax in India as the sale was completed outside India and there was no accrual or deemed accrual in India. However, if the Department comes to the conclusion that there is a PE based on stay of employees of the Applicant for a period exceeding six months after the issue of Letter of Intent dated 27-1-2011, the income in respect of off-shore supply contract, to the extent it is attributable to the operation of the PE, can be subjected to tax in the hands of the Applicant as per Article 7.1 of DTAA. Further, an element of "Fee for Technical Services" is found embedded in this contract as the Applicant had provided the drawings, designs and engineering aspects as envisaged in the contract in conjunction with the Minutes of Meeting, which is liable to tax in India u/s 9(1)(vii) of the Income-tax Act read with Article ..... X X X X Extracts X X X X X X X X Extracts X X X X
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