2020 (2) TMI 1276 - AT - Income Tax

Assessee wins appeal on retainer fees taxing issue under India-Philippines DTAA

M/s Paramina Earth Technologies Inc., Phillippines Versus Dy. Commissioner of Income Tax (International Taxation) Visakhapatnam

M/s Paramina Earth Technologies Inc., Phillippines Versus Dy. Commissioner of Income Tax (International Taxation) Visakhapatnam - TMI Issues Involved:1. Taxability of Fees for Technical Services (FTS) under section 9(1)(vii) of the Income Tax Act, 1961.2. Applicability of Double Taxation Avoidance Agreement (DTAA) between India and Philippines.3. Determination of Permanent Establishment (PE) in India.4. Tax rate and interest under section 234B.Detailed Analysis:1. Taxability of Fees for Technical Services (FTS) under section 9(1)(vii) of the Income Tax Act, 1961:The primary issue was whether the retainer fees received by the foreign company, M/s Paramina Earth Technologies Inc. (PET), from M/s Teknomin Construction Ltd. (TCL) should be taxed as Fees for Technical Services (FTS) under section 9(1)(vii) of the Income Tax Act, 1961. The Assessing Officer (AO) concluded that the retainer fees were taxable as FTS and made additions to the income for the assessment years 2013-14 and 2014-15. The AO also relied on the decision of DCIT(IT) Vs. TVS Electronics Ltd. and CBDT Circular No.333 dated 02.04.1982 to support this view.2. Applicability of Double Taxation Avoidance Agreement (DTAA) between India and Philippines:The assessee argued that as per the DTAA between India and Philippines, there was no specific article for taxing FTS. Therefore, the retainer fees should be taxed under the head ‘business profit’ and not as FTS. The assessee relied on the decisions of ITAT Bangalore in the cases of IBM India Private Limited Vs. DDIT and ABB FZ-LLC Vs. ITO, where it was held that in the absence of a specific provision in the DTAA for FTS, the income should be taxed as business profits under Article 7 of the DTAA.3. Determination of Permanent Establishment (PE) in India:The assessee contended that PET did not have a Permanent Establishment (PE) in India, and hence, the business profits could not be taxed in India. The AO did not establish the existence of a PE for PET in India. The CIT(A) also dismissed the assessee’s appeal, stating that PET had a PE in India due to its mining activities in the Philippines. However, the Tribunal found that the AO had not made a case for the existence of a PE in India.4. Tax rate and interest under section 234B:Given that the Tribunal allowed the appeal on the primary issue of taxing FTS, the grounds related to the tax rate of 40% and interest under section 234B became infructuous and were dismissed as such.Tribunal's Findings:The Tribunal concluded that the payment made to PET was in the nature of FTS, and there was no specific article in the DTAA for taxing FTS. Therefore, the payment should be taxed under Article 7 of the DTAA as business profits. Since PET did not have a PE in India, the business profits were not chargeable to tax in India. The Tribunal relied on the decisions of ITAT Bangalore in the cases of IBM India Private Limited and ABB FZ-LLC, which were similar to the present case. Consequently, the Tribunal set aside the orders of the lower authorities and allowed the appeals of the assessee.Conclusion:The Tribunal allowed the appeals of the assessee, holding that the retainer fees received by PET should be taxed as business profits under Article 7 of the DTAA between India and Philippines, and not as FTS under section 9(1)(vii) of the Income Tax Act, 1961. Since PET did not have a PE in India, the income was not chargeable to tax in India. The grounds related to the tax rate and interest under section 234B were dismissed as infructuous.