2019 (12) TMI 1571 - AT - Income Tax

India-Germany DTAA: Tribunal rules on taxability of freight charges, service tax exclusion, and agency PE

Hapag-Llyod AG Versus Deputy Commissioner of Income Tax (IT), Range 2 (2) (2), Mumbai.

The Tribunal allowed the appellant's appeal concerning the taxability of freight charges from transportation of cargo through feeder vessels under the ... Taxability of freight charges from transportation of cargo through feeder vessels - freight income from transportation of cargo through feeder vessels is not eligible for benefit under Article 8 of India- Germany DTAA - income from feeder vessels would fall within the ambit of section 44B of the Act whereas the same shall not eligible for benefit under Article 8 of India-Germany DTAA - HELD THAT:- We finding no reason to take a different view as per AY 2007-08 [2012 (5) TMI 9 - ITAT MUMBAI] thus, are of the considered view that the benefits of Article 8 of the DTAA between India and Germany would also be available to the assessee in respect of the revenue earned from the feeder vessels obtained by the assessee by slot hire arrangements. The Grounds of appeal raised by the assessee before us are allowed. Additional claim of IDS credit - claim was made by the assessee by moving a letter before the Assessing officer but the Assessing officer did not deal with the same - DRP also declined to interfere in the matter on the ground that the assessee had not made the claim before the Assessing Officer - HELD THAT:- We are of constant view that the matter should be examined by the Assessing Officer on merits. There cannot be any dispute that any legal issue can be raised before this Tribunal and the Tribunal can pass such orders “as it thinks fit” on the same. We direct the Assessing Officer to examine the claim of the assessee on merits. Issues Involved:1. Taxability of freight charges from transportation of cargo through feeder vessels under India-Germany DTAA2. Taxability of service tax collected on freight income3. Determination of agency permanent establishment (PE) in IndiaAnalysis:Issue 1: Taxability of freight charges from transportation of cargo through feeder vessels under India-Germany DTAAThe appellant challenged the correctness of the DRP's order regarding the assessment under section 143(3) r.w.s. 144C of the Income Tax Act 1961 for the assessment year 2015-16. The grievances raised by the appellant included the taxability of freight charges from the transportation of cargo through feeder vessels. The appellant argued that the income from feeder vessels should be eligible for benefits under Article 8 of the India-Germany DTAA. The appellant also contended that previous decisions by the jurisdictional Bombay HC/ ITAT had held that freight income from feeder vessels is indeed eligible for benefits under the India-Germany DTAA. The Tribunal, in previous orders, had upheld similar pleas of the appellant, citing that the benefits of the DTAA between India and Germany would be available to the appellant in respect of revenue earned from feeder vessels obtained through slot hire arrangements. The Tribunal, in agreement with its previous decisions, allowed the appellant's appeal on this issue.Issue 2: Taxability of service tax collected on freight incomeThe appellant also contested the inclusion of service tax collected on freight income in the gross receipts for computing income under section 44B of the Act. The appellant argued that service tax in India is a levy by the Government and does not constitute income chargeable to tax in the hands of the assessee. Furthermore, the appellant contended that even if service tax on freight income is taxable in India, it should be covered by Article 8 of the India-Germany DTAA and thus not taxable in India. The Tribunal did not find any reason to disagree with the view taken by a coordinate bench in previous cases. Therefore, the Tribunal upheld the appellant's plea on this issue and directed the Assessing Officer to grant the resultant relief.Issue 3: Determination of agency permanent establishment (PE) in IndiaThe appellant challenged the finding that HLIPL constitutes an agency PE of the appellant in India. The appellant argued that HLIPL is not a dependent agent of the appellant as per Article 5 of the India-Germany DTAA. Additionally, the appellant contended that even if HLIPL is considered an agency PE, no further profits could be attributed to such PE since the appellant has remunerated HLIPL on an arm's length basis. The Tribunal directed the Assessing Officer to examine the appellant's claim regarding IDS credit on merits, emphasizing that any legal issue can be raised before the Tribunal for examination. The appeal was partly allowed in favor of the appellant, subject to the directions given by the Tribunal.In conclusion, the Tribunal's judgment addressed the various issues raised by the appellant regarding the taxability of freight charges, service tax on freight income, and the determination of agency permanent establishment in India. The Tribunal largely sided with the appellant, citing previous decisions and relevant provisions of the India-Germany DTAA to support its conclusions.