2008 (3) TMI 351 - AT - Income Tax

Tribunal rules CSC income not taxable in India under DTAA Article 8

The Tribunal ruled in favor of the appellant, holding that the appellant's income from CSC was not taxable in India under Article 8 of the DTAA. The ... Double Taxation Avoidance Issues Involved:1. Taxability of the appellant's income under Article 8 of the DTAA between India and Netherlands.2. Nature of receipts from CSC India P. Ltd. and their tax treatment.3. Applicability of Section 57(iii) for deduction of expenses.4. Consistency in tax treatment across different assessment years.Detailed Analysis:1. Taxability under Article 8 of the DTAA:The appellant contended that it is not subject to tax in India per Article 8 of the DTAA between India and Netherlands, which stipulates that 'profits from the operation of aircraft in international traffic shall be taxable only in the State in which the place of effective management of the enterprise is situated.' The appellant's effective management is in the Netherlands, and thus, its profits from international air traffic operations should not be taxable in India. The Tribunal agreed with this interpretation, noting that the appellant's activities, including handling cargo, are integral to its business of operating aircraft in international traffic and are not separate business activities.2. Nature of Receipts from CSC India P. Ltd.:The appellant received payments from CSC India P. Ltd. for the use of premises leased from the Airport Authority of India (AAI). The Assessing Officer and the Commissioner of Income-tax (Appeals) treated these receipts as income from other sources, arguing that the appellant had violated the terms of the licence agreement with AAI by allowing CSC to use the premises. However, the Tribunal found that the receipts were reimbursements for rent paid to AAI and not income. The Tribunal noted that the appellant had outsourced cargo handling to CSC, and the rent recovery from CSC was directly linked to the cargo handling business, thus falling under the scope of Article 8 of the DTAA.3. Applicability of Section 57(iii):The appellant argued that even if the receipts from CSC were considered income, they should be allowed as deductions under Section 57(iii) of the Income-tax Act, which permits deductions for expenses incurred wholly and exclusively for earning such income. The Tribunal agreed, noting that the rent paid to AAI and recovered from CSC were directly related and should cancel each other out, resulting in no taxable income.4. Consistency in Tax Treatment:The appellant pointed out that for other assessment years, similar additions were not made, invoking the principle of consistency. However, the Tribunal did not find this argument persuasive, noting that the principle of consistency or estoppel could not be applied merely because the additions were not made in earlier years.Conclusion:The Tribunal concluded that the appellant's receipts from CSC were not taxable in India under Article 8 of the DTAA, as they were integral to the appellant's business of operating aircraft in international traffic. Additionally, even if considered income, the receipts would be offset by corresponding expenses under Section 57(iii), resulting in no taxable income. The appeals were allowed, and the additions made by the Assessing Officer were deleted.