2025 (6) TMI 897 - AT - Income Tax

Flight simulator services to Indian pilots in Ethiopia not taxable as fee for technical services under section 9(1)(vii)

Ethiopian Airlines Group Versus ACIT, Intl. Taxation, Circle-1 (2) (2), Delhi

ITAT Delhi held that receipts from providing standard flight simulator services to Indian pilots in Ethiopia were not taxable as fee for technical ... Income deemed to accrue or arise in India - Receipts derived from providing simulator and other allied services to the ultimate payer entity in India - HELD THAT:- Neither the assessee nor the Dubai based entity having a group company in India for providing any services in India which could held as taxable in India. So far as the Revenue’s stand that in light of the statutory amendment in section 9(1)(vii) by insertion of Explanation II therein vide Finance Act, 2010 with retrospective effect from 01.06.1976 is concerned, it is vehemently argued at the department’s behest that such a residential status or the corresponding services rendered in India is no more a decisive factor. Our attention is further sought to be drawn to Article 12(3)(b) of India and Ethiopian Double Taxation Avoidance Agreement “DTAA” that there is no exception to the above statutory provisions therein nor does it contain any “make available” clause. All these Revenue’s argument failed to evoke our concurrence. We wish to reiterate here at the cost of repetition all that what the assessee has done is to provide its flight simulators having standard operating mechanism to the indian pilots in Ethiopia than having rendered any customized services to suit their specific requirements. That being the case, we are indeed guided by the hon’ble jurisdictional high court’s recent decision in SFDC Ireland Ltd. [2024 (3) TMI 620 - DELHI HIGH COURT] negating the Revenue’s very stand treating such standard facilities as “FTS'. Thus, lower authorities have erred in law and on facts in treating the assessee’s impugned receipts derived from providing flight simulator services treated as fee for technical services “FTS” in very terms. Ordered accordingly. The assessee succeeds in its instant “lead” appeal. The core legal questions considered in these appeals revolve around the taxability in India of income earned by a foreign airline group from providing pilot training services via flight simulators to an Indian entity. Specifically, the issues are:1. Whether the receipts earned by the foreign airline group from providing flight simulator and pilot training services to an Indian group entity constitute income taxable in India under the Income-tax Act, 1961, particularly under section 9(1)(vii) relating to fees for technical services (FTS).2. Whether the nature of the income is business income or fees for technical services, and the implications of such characterization on taxability.3. Whether the place of rendition of services or the location of utilization of services determines the source of income for tax purposes.4. The applicability of the source rule under sections 5(2) and 9 of the Income-tax Act, and the impact of the Explanation inserted in section 9(2) with retrospective effect from 1976.5. The relevance of the Double Taxation Avoidance Agreement (DTAA) between India and Ethiopia, particularly Article 7 on business profits and Article 12 on royalties and fees for technical services.6. Whether the services provided by the foreign airline group amount to 'technical services' as defined under Explanation 2 to section 9(1)(vii) of the Act.7. The effect of judicial precedents, including the Supreme Court decisions in GVK Industries Ltd., Kotak Securities Ltd., and A.P. Moller Maersk AS, on the characterization and taxability of such income.Issue-wise Detailed Analysis1. Taxability of Income under the Income-tax Act and Characterization of IncomeThe legal framework involves sections 5(2) and 9 of the Income-tax Act, which govern the source of income and chargeability of non-residents. Section 5(2) stipulates that income received or deemed to be received in India or accruing or arising in India is taxable. Section 9 specifies certain types of income deemed to accrue or arise in India, including fees for technical services under section 9(1)(vii).The Court noted that the foreign airline group received payments routed through a Dubai-based group entity from an Indian company, Flight Simulation Technique Centre Pvt. Ltd. (FSTL). Although the contract for services was between the foreign airline and the Dubai entity, the actual payment originated from the Indian entity. The Court emphasized that the source of payment being India is critical under the source rule.Reliance was placed on the Supreme Court's ruling in GVK Industries Ltd., which clarified that income is chargeable in the country where the source of payment is located, i.e., where the payer is situated. The Court held that the income accrues or arises in India because the payment was made by an Indian company to the foreign airline group, thus satisfying the source rule under section 5(2)(i).Regarding the nature of income, the Court examined whether it constituted business income or fees for technical services. It was observed that the foreign airline's involvement was limited to providing simulator facilities on a fixed usage basis without any substantial or continuous business presence in India. This indicated a passive income stream rather than active business income in India, consistent with precedents such as R D Agrawal and GVK Industries, which require a real and intimate connection or continuity of business activity in India to constitute business income.2. Definition and Applicability of Fees for Technical Services (FTS)Explanation 2 to section 9(1)(vii) defines FTS as consideration for managerial, technical, or consultancy services but excludes construction or similar projects and salaries. The Supreme Court in GVK Ethiopian Airlines Group Industries Ltd. held that the terms managerial, technical, and consultancy should be interpreted in their ordinary meaning, involving specialized knowledge or expertise.The Court found that pilot training using flight simulators involves specialized knowledge and skill, thus falling within the scope of technical services. However, the critical question was whether the services provided were 'technical services' as contemplated under the Act or merely a facility offered to all users.The Court analyzed the nature of the services, emphasizing that the foreign airline provided standard simulator facilities accessible to multiple Indian airlines without customization or exclusivity. This was distinguished from services tailored to individual client needs, which would constitute technical services.3. Place of Rendition vs. Place of Utilization of ServicesThe Revenue contended that the retrospective Explanation inserted in section 9(2) of the Act renders the place of rendition irrelevant, and income is deemed to accrue in India if the services are utilized in India. The Explanation states that income from interest, royalty, or fees for technical services shall be included in total income of the non-resident if utilized in India, regardless of where services are rendered.The Court acknowledged this statutory provision but referred to judicial precedents that clarify the distinction between services rendered and facilities provided. The Supreme Court in Kotak Securities Ltd. and A.P. Moller Maersk AS held that use of a facility common to all users does not amount to rendering technical services. Instead, technical services imply specialized services catering to the special needs of the recipient.The Court relied on a recent jurisdictional High Court decision which followed the Kotak Securities principle, holding that standard facilities provided to multiple users without customization do not constitute technical services. The Court found that the flight simulator services were akin to a facility offered rather than technical services rendered.4. Treatment of Competing Arguments and Application of Law to FactsThe Revenue's argument rested on the statutory source rule and the Explanation to section 9(2), asserting that the income is taxable because the services are utilized in India and payment is made from India. The Department also relied on the DTAA provisions and the absence of a 'make available' clause in the India-Ethiopia DTAA to support taxability.The assessee argued that the services were rendered outside India, that the contract was between two non-residents, and that the income was business income arising outside India. It also contended that the services were standard facilities and not technical services, thus not taxable in India.The Court rejected the Revenue's reliance on the source rule and Explanation 2 to section 9(1)(vii) as determinative of taxability without considering the nature of services. It emphasized the binding precedents that distinguish between technical services and facilities. The Court held that the foreign airline did not provide specialized or exclusive technical services to Indian entities but merely made available simulator facilities used by various Indian airlines.The Court also noted the absence of any permanent establishment or business presence of the foreign airline in India, which negates the characterization of income as business income taxable in India.5. Impact of Double Taxation Avoidance Agreement (DTAA)The Revenue pointed to Article 12(3)(b) of the India-Ethiopia DTAA, which does not contain a 'make available' clause, implying that fees for technical services are taxable in India. However, the Court did not find this argument sufficient to override the domestic law interpretation and judicial precedents that focus on the nature of services provided.6. ConclusionsThe Court concluded that the impugned receipts from providing flight simulator services do not constitute fees for technical services as defined under the Income-tax Act. The services were standard facilities available to all users and not specialized or exclusive technical services. Consequently, the income is not taxable in India under section 9(1)(vii) of the Act.The Court allowed the appeals, setting aside the assessments framed under section 147 r.w.s. 143(3) of the Act. The reasoning was grounded on the distinction between services and facilities, the absence of a permanent establishment or substantial business activity in India, and the binding precedents clarifying the scope of technical services for tax purposes.Significant Holdings'Technical services' like 'managerial and consultancy service' would denote seeking of services to cater to the special needs of the consumer/user as may be felt necessary and the making of the same available by the service provider. It is the above feature that would distinguish/identify a service provided from a facility offered.''There is nothing special, exclusive or customised service that is rendered... The service provided... fails to satisfy the aforesaid test of specialised, exclusive and individual requirement of the user or consumer who may approach the service provider for such assistance/service.''Use of facility does not amount to technical services, as technical services denote services catering to the special needs of the person using them and not a facility provided to all.''Income of the recipient to be charged or chargeable in the country where the source of payment is located, to clarify, where the payer is located... The location of payment of services is in India.''The services of training of pilots in simulator are utilized in India by the pilots and other crews of domestic airline operators... Therefore, clearly the consumption of services is in India.'The Court established the core principle that mere provision of standard facilities accessible to multiple users without customization does not constitute fees for technical services taxable in India, despite payments being routed through Indian entities and services being utilized in India. The nature and character of the service, along with the presence or absence of a permanent establishment or substantial business activity, are decisive for taxability.