2013 (11) TMI 564 - AT - Income Tax

Tribunal rules on PE, transfer pricing, and taxability issues in Indian jurisdiction

Convergys Customer Management Group Inc. Versus Assistant Director of Income-tax (International Taxation), Circle-1(1), New Delhi

Convergys Customer Management Group Inc. Versus Assistant Director of Income-tax (International Taxation), Circle-1(1), New Delhi - [2013] 26 ITR (Trib) ... Issues Involved:1. Permanent Establishment (PE) in India.2. Attribution of profits to PE.3. Taxability of PeopleSoft license cost and maintenance charges as 'Royalty'.4. Taxability of link charges as 'Equipment Royalty'.5. Levy of interest under sections 234B and 234D, and withdrawal of interest under section 244A.Detailed Analysis:1. Permanent Establishment (PE) in India:Assessee's Appeal for A.Y. 2006-07:- The CIT(A) confirmed that the Appellant has a PE in India under Article 5 of the DTAA between India and the USA.- The CIT(A) upheld that the Appellant has a Fixed Place PE in India in terms of Article 5(1) and a place of management in India under Article 5(2)(a) of the DTAA.- The Appellant argued that it was only procuring services from India, thus falling within the exclusionary clause under Article 5(3) of the DTAA.Revenue's Appeal for A.Y. 2006-07:- The CIT(A) erred in holding that the assessee did not have a Dependent Agent PE in India through Convergys India Services Pvt. Ltd. (CIS).Tribunal's Decision:- The Tribunal upheld the CIT(A)'s finding that the Appellant has a Fixed Place PE in India under Article 5(1) and a place of management under Article 5(2)(a) of the DTAA.- The Tribunal rejected the Appellant's contention that it was merely procuring services from India and thus covered under the exclusionary clause of Article 5(3) of the DTAA.- The Tribunal agreed with the CIT(A) that the Appellant does not have a Dependent Agent PE in India as none of the conditions mentioned in Article 5(4) are satisfied.2. Attribution of Profits to PE:Assessee's Appeal for A.Y. 2006-07:- The CIT(A) accepted the application of transfer pricing principles in determining the profits attributable to the alleged PE.- The CIT(A) recomputed and reduced the amount of profits attributable to the PE from Rs. 2,84,45,67,544 to Rs. 43,10,86,460.Revenue's Appeal for A.Y. 2006-07:- The CIT(A) erred in reducing the additions made by the AO on account of selling costs, profits earned, and attribution of total profit to the PE in India.Tribunal's Decision:- The Tribunal found the CIT(A)'s methodology more reasonable than the AO's, which was based on headcount.- The Tribunal concluded that no further profits can be attributed to the PE once an arm's length price has been determined for the Indian associated enterprise, which subsumes the functions, assets, and risk profile of the alleged PE.- The Tribunal adopted a 15% attribution of the profit retained by CMG in the US as reasonable for the Indian PE.3. Taxability of PeopleSoft License Cost and Maintenance Charges as 'Royalty':Assessee's Appeal for A.Y. 2006-07:- The CIT(A) upheld the AO's decision that PeopleSoft license cost and maintenance charges are taxable as 'Royalty' under section 9(1)(vi) of the Act and Article 12 of the DTAA.Tribunal's Decision:- The Tribunal relied on the Delhi High Court's decision in Ericsson A.B., holding that the purchase of software falls within the category of copyrighted articles and not towards the acquisition of any copyright in the software.- The Tribunal concluded that the payment is in the nature of reimbursement of expenses and accordingly not taxable as 'Royalty.'4. Taxability of Link Charges as 'Equipment Royalty':Assessee's Appeal for A.Y. 2006-07 and A.Y. 2008-09:- The AO made an addition on account of link charges by stating they were taxable as 'Equipment Royalty' in terms of Article 12(2) read with Article 12(3)(b) of the DTAA.Tribunal's Decision:- The Tribunal held that the link charges do not qualify as 'Equipment Royalty' in terms of Article 12 of the DTAA as there was no transfer of the right to use the equipment.- The Tribunal concluded that the payment is in the nature of reimbursement of expenses and accordingly not taxable.5. Levy of Interest under Sections 234B and 234D, and Withdrawal of Interest under Section 244A:Assessee's Appeal for A.Y. 2006-07:- The CIT(A) upheld the levy of interest under sections 234B and 234D and the withdrawal of interest under section 244A.Tribunal's Decision:- The Tribunal held that the assessee is liable to interest under section 234B as the income being assessed now cannot be held to be income liable to TDS under Indian provisions.- The Tribunal dismissed the ground of appeal regarding the levy of interest under sections 234B and 234D and the withdrawal of interest under section 244A.Conclusion:- The Tribunal partly allowed the assessee's appeals for A.Y. 2006-07 and 2008-09 and dismissed the revenue's appeal for A.Y. 2006-07.