2022 (2) TMI 576 - AT - Income Tax

Tribunal Upholds Disallowance of Payment as 'Royalty' under Income-tax Act

Vanderlande Industries Private Limited Versus ACIT, Circle-13, Pune

Vanderlande Industries Private Limited Versus ACIT, Circle-13, Pune - [2022] 99 ITR (Trib) 585 (ITAT [Pune]) Issues Involved:1. Confirmation of disallowance made by the Assessing Officer (AO) under section 40(a)(i) of the Income-tax Act, 1961.2. Characterization of payment made by the assessee to its Netherlands-based holding company.3. Determination of whether the payment constitutes 'Royalty' or 'fees for technical services' under the Double Taxation Avoidance Agreement (DTAA) between India and Netherlands.4. Applicability of section 9(1)(vi) of the Income-tax Act.5. Applicability of Article 12 of the DTAA between India and Netherlands.Detailed Analysis:1. Confirmation of Disallowance under Section 40(a)(i):The primary issue is the confirmation of disallowance made by the AO under section 40(a)(i) of the Income-tax Act, 1961. The assessee, an Indian Private Limited Company, paid Rs. 53,53,204 to its Netherlands-based holding company, VIBV, for IT Support Services without deducting tax at source. The AO disallowed the expense, and the CIT(A) upheld this disallowance. The Tribunal had to decide whether the payment was chargeable to tax and if the failure to deduct tax warranted disallowance under section 40(a)(i).2. Characterization of Payment:The Tribunal needed to determine the nature of the payment made by the assessee to VIBV. The assessee claimed it was a reimbursement for IT Support Services and not subject to tax deduction. The payment covered Desktop services, Communication services, and Application services. The AO characterized the payment as 'Royalty' under section 9(1)(vi) and Article 12 of the DTAA, while the assessee argued it was 'fees for technical services' and not taxable as no services were 'made available' to them.3. Reimbursement vs. Royalty:The Tribunal analyzed the Service Agreement between the assessee and VIBV, focusing on the ICT Services. It was found that the Netherlands entity purchased various software and set up an overall ICT Infrastructure, which was used by group entities, including the assessee. The costs were allocated with an arm's length mark-up. The Tribunal concluded that the payment was not a reimbursement since it included a mark-up, making it a case of cost allocation rather than mere reimbursement.4. Fees for Technical Services:The Tribunal rejected the assessee's claim that the payment was for 'fees for technical services.' It was determined that the payment was for the use of the overall ICT Infrastructure, not for specific services provided by VIBV. The Tribunal emphasized that the payment was for deriving services through the use of the ICT Infrastructure, not for services 'made available' to the assessee.5. Applicability of Section 9(1)(vi) and Article 12 of the DTAA:The Tribunal held that the payment was chargeable to tax as 'Royalty' under section 9(1)(vi) of the Act. The Tribunal referred to Explanation 2, Explanations 4 & 5 to section 9(1)(vi), and concluded that the payment for the use of ICT Infrastructure fell within the definition of 'Royalty.' The Tribunal also examined the DTAA between India and Netherlands. The amended Article 12 of the DTAA, effective from 01-04-1997, included payments for the use of industrial, commercial, or scientific equipment within the definition of 'Royalties.' Therefore, the payment made by the assessee was considered 'Royalty' under the DTAA and chargeable to tax.Conclusion:The Tribunal dismissed the appeal, confirming the disallowance under section 40(a)(i) due to the assessee's failure to deduct tax at source. The payment was characterized as 'Royalty' and chargeable to tax under both the Income-tax Act and the DTAA between India and Netherlands. The Tribunal's decision emphasized the importance of proper tax deduction on payments classified as 'Royalty' under international tax agreements.