2019 (7) TMI 1076 - AT - Income Tax

Tribunal Upholds Tax Rate for Non-Resident Companies Under India-France DTAA

The Tribunal dismissed both the assessee's and Revenue's appeals, upholding the Commissioner's decisions based on past rulings and legal principles. The ... Applicable Rate of tax (including surcharge) - domestic companies and Co–operative Societies OR foreign company - India–France Double Taxation Avoidance Agreement (DTAA) - assessee is Indian Branch of foreign Bank - HELD THAT:- Tribunal has consistently decided the issue against the assessee in the preceding assessment years. In the latest order passed for the assessment year 2011–12 [2018 (8) TMI 1856 - ITAT MUMBAI] the Tribunal following its earlier decision decided the issue against the assessee. Of course, it is a fact that in some of the preceding assessment years, the Hon'ble Jurisdictional High Court has admitted the substantial question of law raised by the assessee on the disputed issue. However, there being no material difference in the facts of the present case, respectfully following the consistent view of the Tribunal on the disputed issue in assessee’s own case for the preceding assessment years, we uphold the decision of learned Commissioner (Appeals) on this issue. Ground raised is dismissed. Amount received by the assessee from its Indian Branch towards data processing fee is not chargeable to tax in India due to principles of mutuality - HELD THAT:- As in Sumitomo Mitsui Banking Corporation v/s DDIT, [2012 (4) TMI 80 - ITAT MUMBAI] the payment of data processing fee being a payment to self, is governed by the principles of mutuality, hence, not taxable. Accordingly, the Tribunal deleted the addition. The same view has been expressed in the subsequent assessment years as well and the latest order of the Tribunal on the issue is for the assessment year 2010–11 [2017 (10) TMI 1467 - ITAT MUMBAI] . It is also relevant to observe, while deciding Revenue’s appeal on the disputed issue in assessment year 2006–07 and 2007–08, the Hon'ble Jurisdictional High Court upheld the decision of the Tribunal. Moreover, while deciding the issue in the assessment year 2008–09 in assessee’s own case in [2016 (3) TMI 1356 - ITAT MUMBAI ] , the Tribunal has also decided the issue in favour of the assessee though on different reasoning. Thus, it is evident, the Tribunal in assessee’s own case for the preceding assessment years has consistently held that data processing fee is not chargeable to tax at the hands of the assessee in India Addition of interest income made at the hands of the Head Office - HELD THAT:- As per the relevant statutory provisions applicable to the impugned assessment year and as per the ratio laid down by the Tribunal, Special Bench in case of Sumitomo Mitsui Banking Corporation [2012 (4) TMI 80 - ITAT MUMBAI] which is applicable to the impugned assessment year, the interest income received by the assessee from its Indian Branch being a payment made to self, is not taxable at the hands of the assessee. Therefore, respectfully following the Special Bench decision of the Tribunal, Mumbai Bench, in Sumitomo Mitsui Banking Corporation (supra) and the decisions of the Co–ordinate Bench in assessee’s own case in the preceding assessment years, which we are bound to follow adhering to the norms of judicial discipline in the absence of any material difference in facts, we have no hesitation in upholding the decision of the learned Commissioner (Appeals) on the issue. Grounds are dismissed. Issues:1. Applicability of tax rate under India-France tax treaty to the assessee.2. Taxability of data processing fee as royalty/technical services.3. Taxability of interest income received by the assessee from Indian branches.Issue 1:The appeal concerned the applicability of the tax rate under the India-France Double Taxation Avoidance Agreement to the assessee. The assessee contended that the tax rate applicable to domestic companies and cooperative banks should apply to them under Article 26 of the treaty. However, the Department held that the rate applicable to non-resident companies should apply. The Tribunal noted a consistent dispute on this issue, with previous decisions against the assessee. The Tribunal upheld the Commissioner's decision based on past rulings and dismissed the appeal.Issue 2:The dispute centered on the taxability of data processing fees received by the assessee from its Indian branch. The Assessing Officer treated the fees as royalty/technical services income, adding it to the assessee's taxable income. The Commissioner, following past Tribunal decisions, ruled in favor of the assessee, citing the principle of mutuality. The Tribunal, considering past decisions and the Special Bench ruling, upheld the Commissioner's decision, stating that the fees were not taxable as per the principle of mutuality.Issue 3:The issue revolved around the taxability of interest income received by the assessee from its Indian branches. The Assessing Officer taxed the interest income, but the Commissioner, following the Special Bench ruling, held that the interest paid by the Indian branch to the Head Office was not taxable due to the principle of mutuality. The Tribunal, considering past decisions and statutory provisions, upheld the Commissioner's decision, stating that the interest income was not taxable at the hands of the assessee. The Tribunal referred to the Finance Act and CBDT Circular to support its decision.In conclusion, both the assessee's and Revenue's appeals were dismissed, with the Tribunal upholding the decisions of the Commissioner based on past rulings and legal principles.