2019 (4) TMI 275 - AT - Income Tax

Appeal success: Fabric testing payment not 'Fee for Technical Services' under India-Spain tax agreement

The appellate tribunal allowed the appeal of the assessee, ruling that the payment for fabric testing to a Spanish company did not constitute 'Fee for ... Disallowance u/s 40(a)(ia) - failure to deduct TDS u/s 195 - Fee for Technical Services - payment made by the assessee to the Spanish company - Indo-Spain DTAA - whether in view of the Protocol to India-Spain DTAA, a restrictive meaning of the “Fee for Technical Services’ has to be read in the context of Indo- Spain DTAA? - HELD THAT:- Referring the decision of in Steria (India) Ltd., vs. CIT [2014 (5) TMI 629 - AUTHORITY FOR ADVANCE RULINGS] and para 7 of the Protocol between India and Spain, the restrictive meaning of ‘Fee for Technical Services’ appearing in Article 13(4) (c ) Indo-UK DTAA must be read as forming part of Indo-Spain DTAA as well and, therefore, the payment made by the assessee to the Spanish company for fabric testing would not constitute fee for technical services and consequently, section 195 of the Act has no application to such a receipt. With this view of the matter, we find it difficult to sustain the addition and accordingly, direct the learned AO to delete the same. - Decided in favour of assessee Issues:1. Interpretation of the term 'Fee for Technical Services' under Section 195 of the Income-tax Act, 1961.2. Applicability of the Protocol to India-Spain Double Taxation Avoidance Agreement (DTAA) in determining tax liability.3. Whether the payment made by the assessee to a Spanish company for fabric testing constitutes 'Fee for Technical Services' attracting Section 195 of the Act.Analysis:1. The case involved a dispute regarding the characterization of a payment made by the assessee to a Spanish company as 'fees for technical services' under Section 195 of the Income-tax Act, 1961. The Assessing Officer (AO) disallowed the expenditure, invoking Section 40(a)(ia) of the Act due to the absence of Tax Deducted at Source (TDS) on the payment. The Commissioner of Income-tax (Appeals) upheld the AO's decision, relying on the Indo-Spain DTAA and the make available clause.2. The crux of the matter revolved around the interpretation of the Protocol to the India-Spain DTAA. The Protocol contained provisions related to business profits and the attribution of profits to a permanent establishment. The appellate tribunal analyzed the Protocol's clause 7, which mandated a review of Article 13 (Royalties and fees for technical services) after five years and provided for the application of more restricted rates or scopes from other agreements if beneficial to the taxpayer.3. The tribunal, in light of the decision in Steria (India) Ltd. vs. CIT (2016) 386 ITR 390, emphasized that the restrictive meaning of 'Fee for Technical Services' from the Indo-UK DTAA should be read into the Indo-Spain DTAA. Citing the Delhi High Court's ruling in Steria (India) Ltd., the tribunal concluded that the payment for fabric testing did not constitute 'Fee for Technical Services' under the Indo-Spain DTAA. Consequently, Section 195 of the Act was deemed inapplicable, leading to the direction to delete the addition made by the AO.In conclusion, the appellate tribunal allowed the appeal of the assessee, highlighting the significance of treaty provisions and judicial precedents in determining tax liabilities concerning international transactions.