Composite non-resident receipts: only the part linked to an intangible right to use a brand name was taxable in India.

A composite compensation receipt under membership and service agreements was held not wholly taxable in India because the agreements were executed outside India, the non-resident had no office, personnel, or operations in India, and no business connection was established under section 9(1)(i). However, the word "Intercontinental" was treated as an intangible asset, and the agreements conferred a right to use that name, so an attributable portion of the consideration was taxable in India. The Tribunal also noted that rule 115B became relevant once part of the receipt was taxable, and the additional ground on interest loss was to be examined on verification and allowed on the same basis as comparable years.

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Issues: (i) Whether the compensation received under the membership and service agreements was wholly outside the scope of taxation in India under sections 5(2)(b) and 9(1)(i) of the Income-tax Act, 1961, or whether any part of it was attributable to the right to use the word "Intercontinental" as an asset; (ii) Whether rule 115B of the Income-tax Rules, 1962, and the assessee's additional ground relating to interest loss as business loss were required to be considered in the cross-objections.

Issue (i): Whether the compensation received under the membership and service agreements was wholly outside the scope of taxation in India under sections 5(2)(b) and 9(1)(i) of the Income-tax Act, 1961, or whether any part of it was attributable to the right to use the word "Intercontinental" as an asset.

Analysis: The agreements were completed outside India, and the assessee had no office, personnel, or operations in India, so the receipt could not be brought to tax as income accruing or arising in India merely on the basis of the contract or the services described in it. There was also no business connection in India within the meaning of section 9(1)(i), and the word "Intercontinental" could not be treated as property for that purpose. However, the word was an intangible asset of the assessee, and the agreement conferred on the Indian hotels a right to use that asset. The compensation was not wholly referable to that right, because most of it was for facilities and services, but a part of the composite consideration had to be attributed to the grant of the right to use the name.

Conclusion: The receipt was not fully taxable in India, but 5 per cent of the compensation was taxable as income arising through or from the assessee's asset, namely the right to use the word "Intercontinental", and the assessment was to be recomputed accordingly.

Issue (ii): Whether rule 115B of the Income-tax Rules, 1962, and the assessee's additional ground relating to interest loss as business loss were required to be considered in the cross-objections.

Analysis: Since a part of the compensation was held taxable, rule 115B became relevant and had to be applied by the assessing authority. The additional ground relating to interest loss had been rejected on a technical basis, but the Tribunal found no reason to refuse it and directed verification of the figures for allowance on the same basis as in the comparable years.

Conclusion: Rule 115B was required to be applied, and the additional ground regarding interest loss was directed to be examined and allowed upon verification.

Final Conclusion: The assessee succeeded in resisting full taxation of the receipts, but the Revenue obtained a limited relief through taxation of a quantified portion of the consideration and consequential recomputation of the assessment.

Ratio Decidendi: Where a composite non-resident receipt partly represents consideration for the grant of a right to use an intangible asset in India, only that attributable portion is taxable in India, and the balance remains outside the charging provisions.

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