2017 (11) TMI 1912 - AT - Income Tax

Payments under service agreement not 'royalty' under tax treaty. Assessing officer's orders set aside. Stay applications dismissed.

The Tribunal held that payments received by the assessee under a service agreement were not considered 'royalty' under the India-Netherlands Double ... Taxability of “Management Service Fees” - Assessing Management service fee received by the assessee as Royalty - eligibility for benefits of Indo-Netherland DTAA - assessee claimed the same as managerial services, as it did not make available any technical knowledge, experience, skill, know-how or process - HELD THAT:- We notice that the assessing officer had made identical disallowance in assessment year 2009-10 [2016 (11) TMI 1249 - ITAT MUMBAI] and the Tribunal, vide its order has held that none of the services provided by the assessee in the terms of “service agreement” falls under the scope and ambit of “royalty” as defined in Article 12(4) of the DTAA. In the years under consideration also, the assessee received payments pursuant to very same agreement. The Ld A.R submitted that there is no change in facts between both the years. Before us, the revenue could not bring any material in order to compel us not to follow the order passed by the co-ordinate bench in AY 2009- 10. Since a particular view has already been taken by the Tribunal on identical payments received by the assessee, following the same, we hold that the payments received by the assessee in terms of “service agreement dated 01-04- 2004” do not fall under the definition of “royalty” as defined in Article 12(4) of India-Netherlands DTAA. Accordingly we set aside the order passed by the assessing officer in both the years on this issue. - Decided in favour of assessee. Issues Involved:1. Whether the 'management service fee' received by the assessee should be assessed as 'Royalty' under Article 12(4) of the India-Netherlands Double Taxation Avoidance Agreement (DTAA).Detailed Analysis:Issue 1: Assessment of 'Management Service Fee' as Royalty- Background: The assessee, a company incorporated in the Netherlands, engaged in dredging activities, entered into a 'Service Agreement' with Van Oord India Private Limited (VOIPL) on 01-04-2004. Under this agreement, the assessee provided various support services. The payment received was treated as royalty by the assessing officer, whereas the assessee claimed it as managerial services, arguing that it did not involve the transfer of technical knowledge, experience, skill, know-how, or process.- Tribunal's Previous Ruling: In the assessment year 2009-10, the ITAT had ruled that such payments under the same agreement could not be treated as royalty. This decision was based on the interpretation of Article 12(4) of the India-Netherlands DTAA, which defines 'royalty' as payments for the use of or the right to use any intellectual property or for information concerning industrial, commercial, or scientific experience.- Revenue's Argument: The revenue contended that the services provided by the assessee were crucial for VOIPL's operations, implying that the payments should be considered as royalty under the DTAA.- Tribunal’s Analysis: The Tribunal examined whether the services provided involved the transfer of 'know-how' or merely constituted advisory or consultancy services. It referred to the OECD commentary, which distinguishes between the supply of know-how and the provision of services. The Tribunal emphasized that for a payment to qualify as royalty, there must be an element of imparting know-how that the recipient can use independently.- Nature of Services Provided: The Tribunal scrutinized various services such as information technology, operational support, marketing, quality, health, safety, environment, estimating, engineering, and administrative services. It concluded that these services did not involve the transfer of any knowledge, skill, or experience that could be classified as 'know-how.' Instead, they were more in the nature of routine support services.- Conclusion: The Tribunal reiterated its previous stance that the payments received by the assessee under the service agreement did not fall within the definition of 'royalty' as per Article 12(4) of the DTAA. Consequently, it set aside the orders passed by the assessing officer for the assessment years 2013-14 and 2014-15.- Outcome: Both appeals filed by the assessee were allowed, and the stay applications were dismissed as infructuous.Final Judgment:The Tribunal ruled that the payments received by the assessee under the service agreement dated 01-04-2004 do not qualify as 'royalty' under Article 12(4) of the India-Netherlands DTAA. The assessing officer's orders for the assessment years 2013-14 and 2014-15 were set aside. The appeals were allowed, and the stay applications were dismissed.