2010 (12) TMI 948 - HC - Income Tax

Offshore income not taxable in India; interest levy under s. 234B not applicable. Tribunal decision affirmed.

The High Court held that the income from offshore supplies was not taxable in India as the contract was separate from onshore services, aligning with ... DTAA between India and Korea - whether the contract in question is not a composite one and, therefore, the assessee is not liable to pay tax in India in respect of offshore service? - Held that:- Mere existence of a PE could not constitute sufficient business connection to take the PE as a taxable entity more so, as the cl. (a) of Expln. 1 to s. 9(1)(i) of the Act emphasizes that only such part of the income as is attributable to the operations carried out in India could be taxed in India - In the instant case there was no operation qua the agreement for supply of equipment, which was carried but in India, and therefore, no income could be deemed to have accrued or arisen in India whether directly or indirectly or through any business connection in India - The title to the equipment supplied from outside India was transferred in favour of PGCIL outside India . In the instant case as in the case of Ishikawajma (2007 (1) TMI 91 - SUPREME COURT) would be said to have been successfully performed only after the satisfactory commissioning and erection of the plant and equipments. Since the PE was not at all involved in the transaction of the offshore supply of equipment, the existence of the PE [which as held in Ishikawajma (supra) is for the purpose of assessment of income of a nonresident under the DTAA], would be irrelevant in the instant case. Clause (a) of Expln. 1 to s. 9(1)(i) would not be attracted at all which provides that in the case of a business where all operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India. In the instant case there was no operation qua the agreement for supply of equipment, which was carried but in India, and therefore, no income could be deemed to have accrued or arisen in India whether directly or indirectly or through any business connection in India - Decided in favor of the assessee Issues Involved:1. Whether the Tribunal is justified in not holding that the contract in question is not a composite one and, therefore, the assessee is not liable to pay tax in India in respect of offshore service.2. Whether the levy of interest under s. 234B for short deduction of TDS is mandatory and is leviable automatically.Issue-wise Detailed Analysis:1. Composite Contract and Tax Liability in India:The High Court examined whether the contract between the respondent (LG Cable Ltd.) and Power Grid Corporation of India Ltd. (PGCIL) was composite, thereby making the income from offshore services taxable in India.- Contract Nature and Responsibility: The CIT(A) held that the two contracts (onshore and offshore) were interrelated and interdependent, suggesting a composite contract. The CIT(A) emphasized that the contractor (LGCL) had overall responsibility for both contracts, and any breach in one contract would affect the other.- Offshore Supply Contract: The offshore supply contract involved the supply of equipment from Korea to India. The title and risk passed to PGCIL outside India upon shipment. This was supported by the issuance of a bill of lading in Korea and the insurance policy naming PGCIL as co-insurer.- Income Attribution: The Tribunal determined that the income from the offshore contract was not taxable in India as the sale was completed outside India, and no part of the income was attributable to operations carried out in India. The Tribunal referenced the Supreme Court's decision in Ishikawajma-Harima Heavy Industries Ltd. vs. Director of IT, which held that offshore supplies are not taxable in India if the title passes outside the country and payments are made in foreign exchange.- High Court's Conclusion: The High Court agreed with the Tribunal, emphasizing that the offshore supply contract was separate from the onshore services contract. The property in the goods passed to PGCIL in Korea, and the income from the offshore supply accrued outside India. The Court concluded that the offshore supplies were not chargeable to tax in India, aligning with the precedent set by the Supreme Court in Ishikawajma.2. Levy of Interest under s. 234B:The second issue was whether the levy of interest under s. 234B for short deduction of TDS is mandatory and leviable automatically.- Tribunal's Decision: The Tribunal ruled that the assessee was not liable to pay any interest under s. 234B of the Act.- High Court's Analysis: Given the Court's decision on the first issue that the income from offshore supplies was not taxable in India, the question of levying interest under s. 234B did not arise. The Court noted that this issue had been previously addressed in another case (Director of IT vs. Mitsubishi Corporation), where it was determined that interest under s. 234B is not applicable in such scenarios.Final Judgment:The High Court affirmed the Tribunal's decision, holding that the offshore supply income was not taxable in India, and thus, the levy of interest under s. 234B was not applicable. The appeal by the Revenue was dismissed, and the questions of law were answered in favor of the respondent-assessee.