2019 (4) TMI 2018 - AT - Income Tax

Assessee's Managerial Services Not Technical Fees under Tax Treaty

Dy. Commissioner of Income Tax (I.T) Circle–2 (2) (2), Mumbai Versus Hyva Holding B.V.

The Tribunal ruled that the amount received by the assessee for services in India was not considered fees for technical services under the ... Income accrued in India - amount received by the assessee from rendering services in India - whether is not in the nature of fees for technical services? - scope of expression 'make available' - India–Netherland DTAA - whether the services rendered by the assessee to HIPL under the management service agreement is purely managerial in nature so as to take it out of the purview of fees for technical services as defined under Article–12(5) of the India–Netherland Tax Treaty? - As services rendered by the assessee is not purely managerial but has the trappings of technical and consultancy services as well, whether in the absence of satisfaction of the make available clause the fees received can be treated as fees for technical services? - HELD THAT:- As seen from definition of fees for technical services under the tax treaty, managerial service is not included under the definition of fees for technical services. Therefore, though some services rendered by the assessee may have the trappings of technical or consultancy service, however, the core activity of the assessee under the agreement is, providing managerial services. That being the case, the amount received by the assessee from HIPL cannot be treated as fees for technical services under Article–12(5) of the India–Netherland Tax Treaty. More so, when the Assessing Officer has not demonstrated what amount can be attributed towards technical or consultancy service. The expression ‘make available’ not only would mean that recipient of the service is in a position to derive an enduring benefit out of utilization of the knowledge or knowhow on his own in future without aid of the service provider, but such technical knowledge, experience, knowhow, skill, etc., must remain with the recipient even after expiry of the contract. It has further been held that the technology will be considered to have been made available when the person acquiring the service is able to apply the technology independently. Therefore, to come within the purview of fees for technical services under Article–15(5) of the India–Netherland Tax Treaty, rendering of services and making available of technical knowledge, experience, knowhow, skill, etc., have to take place simultaneously. AO has failed to demonstrate through any material brought on record that while rendering services to HIPL, the assessee has made available any technical knowledge, experience, knowhow, skill, etc., enabling HIPL to apply such technology independently. Rather the facts on record if considered vis–a–vis the service agreement would clearly reveal that while rendering services, the assessee has not made available any technical knowledge, experience, knowhow, skill, etc., to HIPL for its independent use. - no infirmity in the order of the learned Commissioner (Appeals) in holding that the amount received by the assessee from HIPL is not in the nature of fees for technical services, hence, deleting the addition made by the Assessing Officer. - Decided in favour of assessee. Issues:- Whether the amount received by the assessee from rendering services in India is in the nature of fees for technical services under the India-Netherland Tax Treaty.- Whether the services rendered by the assessee to HIPL under the management service agreement are purely managerial in nature or have trappings of technical and consultancy services.- Whether the assessee made available any technical knowledge, experience, skill, etc., to HIPL for enabling it to utilize such technology independently in the future.Analysis:1. The Revenue challenged the order passed by the Commissioner (Appeals) regarding the taxability of the amount received by the assessee from rendering services in India. The Revenue contended that the services provided by the assessee to HIPL encompassed managerial, technical, and consultancy services, falling under the definition of fees for technical services under the India-Netherland Tax Treaty.2. The Commissioner (Appeals) held that the services rendered by the assessee were primarily managerial in nature and not fees for technical services under the Tax Treaty. It was concluded that the core expertise provided did not make available any technical knowledge or skills to HIPL for independent use, thus not taxable in India.3. The Departmental Representative argued that the nature of services provided by the assessee included technical and consultancy aspects, warranting a reassessment by the Assessing Officer. The Authorized Representative countered, emphasizing the managerial nature of the services and the absence of technical knowledge transfer, citing relevant legal precedents.4. The Tribunal analyzed the service agreement and determined that while some services had technical elements, the predominant nature was managerial. It highlighted the requirement for technical knowledge to be made available for enduring benefit, which was not demonstrated by the Assessing Officer. Thus, the Tribunal upheld the Commissioner's decision, dismissing the appeal.5. Ultimately, the Tribunal ruled that the amount received by the assessee was not fees for technical services under the India-Netherland Tax Treaty, as the services provided were managerial in essence and did not involve the transfer of technical knowledge for independent use. The appeal was dismissed, affirming the deletion of the addition made by the Assessing Officer.