Transfer pricing comparables and adjustments: Tribunal revisits loss-maker status, segmental comparability, working capital relief, and risk allocatio...
The receipts towards repairs and maintenance services rendered by the assessee cannot be construed as "Fee for Technical Services" (FTS) u/s 9(1)(vii) of the Income Tax Act or the Double Taxation Avoidance Agreement (DTAA) between India and Singapore. The assessee provides repair and maintenance services for aircraft equipment to Indian customers, and the primary business involves charging repair and maintenance fees. The 'make available' clause is not satisfied as there is no transfer of technology, skills, knowledge, processes, experience, or benefits. The repairs and maintenance services are not 'made available' to clients for future self-repair and maintenance. The Dispute Resolution Panel's interpretation of 'enduring benefit' gained by clients through repairs and maintenance as akin to 'make available' cannot be accepted. Consequently, the services cannot be treated as FTS under the Act or the treaty. Regarding the chargeability of interest u/ss 234A and 234B, if the return of income is filed beyond the prescribed due date u/s 139(1), interest u/s 234A shall be leviable, and the Assessing Officer is directed to examine and decide accordingly. The chargeability of interest u/s 234B would be consequential.
The receipts towards repairs and maintenance services rendered by the assessee cannot be construed as "Fee for Technical Services" (FTS) u/s 9(1)(vii) of the Income Tax Act or the Double Taxation Avoidance Agreement (DTAA) between India and Singapore. The assessee provides repair and maintenance services for aircraft equipment to Indian customers, and the primary business involves charging repair and maintenance fees. The 'make available' clause is not satisfied as there is no transfer of technology, skills, knowledge, processes, experience, or benefits. The repairs and maintenance services are not 'made available' to clients for future self-repair and maintenance. The Dispute Resolution Panel's interpretation of 'enduring benefit' gained by clients through repairs and maintenance as akin to 'make available' cannot be accepted. Consequently, the services cannot be treated as FTS under the Act or the treaty. Regarding the chargeability of interest u/ss 234A and 234B, if the return of income is filed beyond the prescribed due date u/s 139(1), interest u/s 234A shall be leviable, and the Assessing Officer is directed to examine and decide accordingly. The chargeability of interest u/s 234B would be consequential.
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