1992 (5) TMI 80 - AT - Income Tax

Tribunal ruling: Technical Aid Agreement payments deemed 'royalty'. Tax rate hinges on info transfer location.

The Tribunal held that the consideration received by the non-resident company under the Technical Aid Agreement constituted 'royalty' and a lump sum ... Any Person, Appellate Authority, Concessional Rate, Fees For Technical Services, Higher Rate, Indian Company, Non-resident Company, Orders Prejudicial To Interests, Words And Phrases Issues Involved:1. Nature of the consideration received under the Technical Aid Agreement.2. Rate of taxation applicable to the consideration received.3. Jurisdictional issue regarding the applicability of section 263 of the Income-tax Act, 1961.4. Doctrine of merger in the context of appeals and revision.Detailed Analysis:1. Nature of the Consideration Received Under the Technical Aid Agreement:The primary issue was whether the consideration received by the non-resident company under the Technical Aid Agreement was 'royalty' or 'fees for technical services.' The Tribunal held that the consideration was 'royalty' within the meaning of Explanation 2 to section 9(1)(vi) of the Income-tax Act, 1961. The Tribunal noted that the agreement entailed providing comprehensive research and development support, including engineering services, production services, quality control, and equipment selection. It also involved making available future developments in the manufacture and use of friction materials. The Tribunal concluded that these activities fell under the category of 'royalty' as per items (ii) and (iv) of Explanation 2 to section 9(1)(vi).2. Rate of Taxation Applicable to the Consideration Received:The Tribunal had to determine whether the consideration should be taxed at 20% or 40% under section 115A of the Income-tax Act, 1961. The Tribunal found that the consideration was a lump sum payment as per its earlier order dated 17-10-1986. However, it was necessary to ascertain whether the transfer or imparting of information took place outside India to apply the lower rate of 20%. The Tribunal remitted this aspect back to the Commissioner of Income-tax (CIT) for fresh consideration and decision, as no conclusive data was available to determine the situs of the transfer.3. Jurisdictional Issue Regarding the Applicability of Section 263:The CIT invoked section 263 of the Income-tax Act, 1961, to revise the assessment orders for the assessment years 1983-84 to 1986-87, considering them erroneous and prejudicial to the interests of the revenue. The Tribunal examined whether the CIT was justified in doing so. The Tribunal held that the CIT was justified in invoking section 263 for the assessment years 1983-84 to 1985-86 because the assessing officer had not properly examined the issue as directed by the CIT(A). For the assessment year 1986-87, the Tribunal found that the issue of the rate of taxation was not the subject matter of the appeal before the CIT(A), and hence the doctrine of merger did not apply.4. Doctrine of Merger in the Context of Appeals and Revision:The Tribunal examined whether the doctrine of merger applied to the assessment orders for the assessment years 1983-84 to 1985-86. The Tribunal noted that the CIT(A) had remitted the matter to the assessing officer for fresh consideration and decision, which did not constitute a final decision on the merits. Therefore, the doctrine of merger could not be invoked. The Tribunal also referred to the case of Brihan Maharashtra Sugar Syndicate Ltd. v. P.R. Joglekar, Dy. Commissioner of Agricultural Income-tax, to support its position that the doctrine of merger does not apply when the appellate authority has not decided the issue on merits.Conclusion:The Tribunal concluded that the consideration received by the non-resident company under the Technical Aid Agreement was 'royalty' and a lump sum consideration. However, the rate of taxation (20% or 40%) depended on whether the transfer or imparting of information took place outside India. This aspect was remitted back to the CIT for fresh consideration and decision. The Tribunal rejected the arguments based on the doctrine of merger and upheld the CIT's invocation of section 263 for the assessment years 1983-84 to 1985-86. The appeals were treated as allowed for statistical purposes.