2025 (10) TMI 1224 - AT - Income Tax

Non-deduction of TDS not an assessee-in-default where payments to non-resident are work contract/sale, not FTS under s.9(1)(vii)/Art12

ITAT DELHI (AT) allowed the appeal, holding the assessee not liable as 'assessee in default' for non-deduction of TDS. Payments to the non-resident vendor ... TDS u/s 195 - services rendered by the vendor is technical in nature and made available to the Assessee Company whenever requisitioned and the services rendered by the vendor company are utilized by the Assessee company for its business in India - existence of human element - Assessee was liable to deduct/withheld the tax on the payment made as nature of services are in the nature of FTS as per the provisions of Section 9 (1)(vii) of the Act and Article 12 (3) of DTAA between India and Norway HELD THAT:- During the year under consideration, Assessee company made two payments to M/s Brunvoll AS Norway a non-resident company and it was the specific case of the Assessee that M/s Brunvoll AS, has undertaken work of replacing the defective parts of its ship and activities of the said company are in the nature of carrying out work contract and not the nature of rendering Technical Services. The part supplied by the said Company were found to be defective and installed those parts in Assessee’s ships during its dry dock. Person of the vendor visited India and stayed in India for aggregate period of 29 days for replacement/installation of spare parts and the said Norway Company being a tax resident of Norway, has no PE India. For the said services of repairs, the Assessee made payment of above sums without deducting TDS. As the said Company has no PE in India and the activities undertaken by the vendor were in the nature of work contract, the said income was not taxable in India as per Article 7 of DTAA between India and Norway. Personnel of Vendor Company stayed in India for only for 29 days, which is less than ‘three months’ as provided in Article 5 Paragraph 3 of DTAA. Even if the said activities are considered as installation contract, the said income was not taxable in India. The payments made by the Assessee were also not covered under ‘Fees for technical Services’ as defined in Section 9(1)(vii) or Article 12 of the DTAA as the work carried out by the vendor company falls under Article 7 leading to commercial profits. Considering the fact that the contract was primarily for sale of spare parts and replacement of defective parts which was incidental to the sale of spare parts, the whole contract is deserves to be considered as work contract. As decided in Lufthansa [2004 (6) TMI 273 - ITAT DELHI-B] 'the word 'work' may be used in two senses; it may mean either labour which a man bestows upon thing or the thing upon which labour is bestowed - in a works contract like the present one in which components are repaired and overhauled, the technicians of the contractor bestow their labour upon 'things' like engines and aircrafts components or put them through the machines. Technik carries out these activities in the normal course of its business as its facilities in Germany without any involvement of the assessee. There is absence of human element as there is no interaction between the technicians of Technik and the assessee's personnel. This is further supported by the fact that the components are sent for repairs along with airway bills and are redelivered in the same manner and the invoices are raised by Technik with reference to specific job-works and supply of parts, etc. The payments by the assessee are clearly business receipts in the hands of Technik Authorities below have committed error in treating the Assessee company as the ‘Assessee in default’ for non-deduction of TDS u/s 201(1)/201(1A). Assessee appeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether payments made to a non-resident for replacement/repair of spare parts and installation during dry-docking constitute 'Fees for Technical Services' (FTS) under Section 9(1)(vii) of the Income Tax Act and corresponding DTAA provision, thereby attracting withholding obligation under Section 195 and treating the payer as 'assessee in default' under Sections 201(1)/201(1A). 2. Whether absence of a Permanent Establishment (PE) in India and aggregate stay of vendor personnel in India for less than the period specified in the DTAA precludes taxation of the non-resident's receipts as business profits under Article 7 of the DTAA or as FTS under Article 12/Explanation 2 to Section 9(1)(vii). 3. Whether routine repair, overhaul and replacement work (including assembly, disassembly, inspection, testing and reporting) performed by a non-resident offshore workshop amounts to rendering of technical services or is a works-contract/repair transaction outside the scope of FTS such that no TDS liability arises on the payer. 4. Whether the assessing authorities and appellate authority erred in characterising the payer as 'assessee in default', raising demand under Sections 201(1)/201(1A) (including interest), when factual material showed absence of taxable FTS or PE and the contract primarily related to sale/repair of parts. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Characterisation of payments as Fees for Technical Services (FTS) under Section 9(1)(vii) / DTAA Legal framework: Section 9(1)(vii) and its Explanation 2 define FTS broadly to include fees for rendering technical services and services of technical personnel; DTAA provision (Article 12) correspondingly taxes fees for technical services. Section 195 imposes withholding on payments to non-residents chargeable to tax in India; Sections 201(1)/201(1A) treat deductor as 'assessee in default' for non-deduction and provide interest liability. Precedent treatment: The Tribunal's prior decisions distinguishing routine repair/overhaul payments from FTS (e.g., decisions characterising routine maintenance as non-FTS where work is performed in non-resident's workshops without transfer of technical knowledge or effective rendering of technical services to the Indian payer) were followed. Decisions holding deputation/supervision of technical personnel to India or transfer of technical know-how as constituting FTS were distinguished on facts. Interpretation and reasoning: The Court examined the contractual scope and the detailed list of activities (receipt, disassembly, chemical/ultrasonic cleaning, non-destructive evaluation, flow tests, reassembly, quality assurance, repair reports and shipping). It found the activities to be routine maintenance/repair and overhaul carried out in the non-resident's facilities, with parts sent abroad and returned, without substantive interaction reflecting transfer of technical knowledge or managerial/consultancy services to the Indian payer. The absence of deputation of technical personnel to India and the fact that the supplier provided warranty and returned overhauled components were relevant. The Court applied the taxonomy distinguishing 'technical repairs' that are mere repair works versus services that make available technical expertise to the payer; only the latter attract FTS treatment under the statutory Explanation and DTAA. Ratio vs. Obiter: Ratio - Routine repair/overhaul work carried out by non-resident workshops for replacement/repair of components, undertaken without deputation or transfer of technical skill to the payer, does not amount to FTS under Section 9(1)(vii)/DTAA and thus is not a withholding taxable event pursuant to Section 195. Obiter - Observations distinguishing cases involving deputation/supervision (where FTS may arise) and commentary on the stages of 'rendering' versus mere execution of repair work. Conclusion: Payments in question do not constitute FTS. Therefore, no withholding obligation arose under Section 195 on account of FTS. Issue 2 - Relevance of Permanent Establishment (PE) and duration of stay of vendor personnel under DTAA Legal framework: Article 5 (PE) and Article 7 (business profits) of the DTAA govern taxation of business profits and presence of PE. Article 5(3) or comparable provision specifies time thresholds for presence of personnel to constitute PE. Precedent treatment: The Court relied on Tribunal authorities that treat absence of PE and stays below DTAA thresholds as negating taxation of business profits in India under Article 7; such precedent supports that, where services/repairs do not create PE and income arises as business profits abroad, Article 7 excludes Indian taxation. Interpretation and reasoning: The material established that vendor personnel were present in India for an aggregate of 29 days, under the DTAA threshold of three months. The non-resident was a tax resident of the foreign State and had no PE in India. Even if the activities were characterised as installation/repair, the DTAA analysis pointed to taxation as business profits attributable to a PE only if a PE existed; absent PE, Article 7 shields the receipts from Indian tax. The Court therefore concluded that payments were not taxable in India under Article 7. Ratio vs. Obiter: Ratio - Absence of PE and aggregate stay below the DTAA-specified threshold precludes taxation of the non-resident's receipts as business profits in India; ergo Article 7 applies to exclude Indian tax. Obiter - Comments on interplay between Article 7 and Article 12 when services overlap with business profits. Conclusion: The non-resident had no PE in India and vendor personnel stayed less than the DTAA threshold; accordingly, the receipts were not taxable in India as business profits and did not give rise to withholding liabilities under DTAA/Section 195. Issue 3 - Distinction between works-contract/repair transactions and FTS; evidentiary and functional tests applied Legal framework: The statutory and explanatory language differentiates between payments for mere execution of repair/maintenance (which constitute business receipts) and payments that amount to fees for making available technical expertise, personnel or consultancy. The Court applied tests drawn from precedent assessing (i) locus of work (performed at foreign workshop), (ii) nature of activities (routine maintenance and overhaul), (iii) involvement of payer's personnel, (iv) transfer of technical knowledge or supervisory/deputed personnel, and (v) contractual character (sale/loan-exchange of parts incidental to repair). Precedent treatment: Tribunal precedents holding routine repairs/refurbishments as non-FTS were followed; precedents finding FTS where foreign technicians were deputed, supervised, or transferred technical know-how were expressly distinguished on the facts (notably the presence of foreign technicians in India or active supervision by non-resident personnel). Interpretation and reasoning: Applying the functional test to the detailed scope of work, the Court emphasised that the listed tasks were operational repair steps lacking managerial/consultancy content and not directed at making technical knowledge available to the payer. The predominance of materials/parts and routine technical procedures, the absence of an Indian supervisory role by non-resident personnel and the business-like nature of receipts led to classification as repair/sale-related payments rather than FTS. Ratio vs. Obiter: Ratio - Where the transaction is primarily for repair/overhaul and supply/ replacement of parts (with incidental labour/materials) performed in the non-resident's facilities, the consideration is not FTS. Obiter - Observations that each case depends on factual matrix and that deputation/supervision or provision of expertise could alter the conclusion. Conclusion: The contract and services fall within works-repair character; therefore, payments are not FTS and are outside the withholding ambit of Section 195/Section 9(1)(vii). Issue 4 - Legality of treating payer as 'assessee in default' under Sections 201(1)/201(1A) and levy of interest/demand Legal framework: Section 201(1) treats a person as 'assessee in default' when tax deductible at source has not been deducted; Section 201(1A) imposes interest for failure to deduct/ pay. Liability arises only if the payment is chargeable to tax in India such that withholding was obligatory. Precedent treatment: Authorities emphasise that treating a payer as a defaulting deductor requires first establishing that the payment was chargeable to tax and required deduction. Precedents finding absence of FTS or PE negate the foundational taxability necessary for Section 195/201 liabilities. Interpretation and reasoning: Given the Court's findings that payments were not FTS and that DTAA/Article 7 excluded Indian tax in absence of PE, there was no statutory obligation to deduct tax at source. Accordingly, the assessing officer's classification of the payer as 'assessee in default', imposition of demand and interest under Sections 201(1)/201(1A) lacked legal basis. The Court concluded that the authorities below erred in treating the payer as defaulting for non-deduction of TDS. Ratio vs. Obiter: Ratio - Where payments are not chargeable to tax in India (by reason of non-FTS characterization and absence of PE/DTAA protection), treating payer as 'assessee in default' and levying demand/interest under Sections 201(1)/201(1A) is erroneous. Obiter - Note that outcome is fact-sensitive and different factual matrices (e.g., deputation of technicians) could sustain a default finding. Conclusion: The demand and interest confirmed by the lower authorities are deleted; the payer cannot be treated as 'assessee in default' in these circumstances. Overall Disposition The Court allowed the appeal, deleted additions and demands imposed under Sections 201(1)/201(1A), holding that (i) the payments were for routine repair/works-contract/ sale-incidental replacement of parts and not FTS under Section 9(1)(vii) or the DTAA; (ii) no PE existed and vendor personnel stayed for less than the DTAA threshold, so Article 7 excluded Indian taxation; and (iii) accordingly there was no obligation to deduct tax at source and no basis to treat the payer as 'assessee in default'.