2016 (5) TMI 356 - AT - Income Tax

Tribunal Upholds Decision on Tax Treaty Exemption for Professional Services

The Asstt. Commissioner of Income Tax 11 (2), Mumbai Versus M/s. BSR & Co.

The Asstt. Commissioner of Income Tax 11 (2), Mumbai Versus M/s. BSR & Co. - TMI Issues:Revenue's appeal against CIT(Appeals) order disallowing a sum under section 40(a)(i) of the Income Tax Act, 1961 for A.Y. 2009-10.Analysis:The Revenue raised a single issue challenging the CIT(Appeals) decision to disallow a payment under section 40(a)(i) of the Act. The assessee, a firm of Chartered Accountants, had made payments to non-resident entities without deducting tax at source. The Assessing Officer disallowed the expenditure, but the CIT(A) upheld the assessee's stand, citing Double Taxation Avoidance Agreements (DTAA) with the respective countries. The Tribunal considered the nature of services provided by each recipient entity and the applicability of tax treaties.The Tribunal analyzed payments made to various non-resident entities for professional services rendered outside India. It found that the Revenue's contention that the payments constituted 'fee for technical services' was not justified. The Tribunal examined payments made to entities in the USA, Canada, UK, Singapore, Belgium, Mauritius, Egypt, UAE, and Sri Lanka. It determined that the services provided fell outside the purview of 'fee for technical services' under the relevant tax treaties, and hence, were not taxable in India, negating the need for tax deduction at source.The Tribunal affirmed the CIT(A)'s decision regarding payments made to entities in the UK, Singapore, Belgium, and other countries, stating that the services provided did not qualify as 'fee for technical services' under the tax treaties. It further noted that the absence of a fixed place of business in India for these entities exempted the payments from tax deduction at source under section 40(a)(i) of the Act.Additionally, the Tribunal addressed the retrospective amendment to section 9(1)(vii) of the Act and its impact on tax liability. It emphasized that the failure to deduct tax at source did not warrant disallowance under section 40(a)(i) in light of the prevailing legal position and the retrospective nature of the amendment. The Tribunal cited a relevant Tribunal decision to support this position, ultimately upholding the CIT(A)'s decision to delete the disallowance.In conclusion, the Tribunal dismissed the Revenue's appeal, affirming the CIT(A)'s decision to delete the disallowance under section 40(a)(i) of the Act for the A.Y. 2009-10.