TaxTMI 
TaxTMI 
2010 (7) TMI 1081
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....ous remittances as required by the CBDT Circular as well as RBI, Circular. On verification thereof, it was observed by the Assessing Officer that before making payment of US $ 80,000 to non-resident M/s. C.K. Prahlad Inc. of USA, the assessee-company had not deducted tax at source as required by section 195. While justifying the non-deduction of tax at source from the said payment, it was explained on behalf of the assessee -company that M/s. C.K. Prahlad Inc. of USA is a company incorporated under laws of USA and as per the agreement, the said company had sent one of its professionals to India for a period of two days to address the conference on future strategy held for the benefit of the assessee's employees. It was submitted that the assessee-company had made the payment of US $ 80,000 for the said services rendered by M/s. C.K. Prahlad Inc. of USA and no tax at source was deducted from the said payment because the amount so paid to M/s. C.K. Prahlad Inc. of USA was not taxable in India. It was submitted that the said company is a tax resident of USA and did not have any permanent establishment in India during the year under consideration as contemplated in Article 5 of the DTA....
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....AR)." 5. On the basis of the aforesaid analysis made by him, it was held by the Assessing Officer that the assessee was required to deduct tax at source from the remittances of Rs. US $ 80,000 made to M/s. C.K. Prahlad Inc. of USA as per section 195 of the Income-tax Act. Since the assessee-company had failed to do so, the Assessing Officer treated it as the assessee in default within the meaning of section 201 in respect of tax of Rs. 4,58,270 which was liable to be deducted at source. He held that the assessee-company was also liable to pay interest under section 201(1A) calculated at the rate of 12 per cent amounting to Rs. 41,244. Accordingly, the demand notice for Rs. 4,99,514 was issued by the Assessing Officer to the assessee. 6. Against the order passed by the Assessing Officer under section 201/201(1A) treating it as assessee in default for the amount of Rs. 4,99,514 as a result of its failure to deduct tax at source from the payment made to M/s. C.K. Prahlad Inc. of USA, an appeal was preferred by the assessee before the ld. CIT(A) and in support of its case, the following submissions were made and the judicial pronouncements were relied upon on behalf of the assess....
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....leum Corpn. Ltd. v. Jt. DIT [2007] 14 SOT 307 (Mum.)." 7. The ld. CIT(A) did not find merit in the submissions made on behalf of the assessee and proceeded to uphold the action of the Assessing Officer in treating the assessee-company in default under section 201 for deduction of tax at source from the remittances sent to M/s. C.K. Prahlad Inc. of USA and also in charging the interest thereon under section 201(1A) for the following reasons given in paras 3.3 to 3.5 of the ld. CIT(A)'s order :- "I have considered the facts, finding of the Assessing Officer and submissions of learned AR. It is seen that Mr. C.K. Prahlad is a management guru as he is known to be. He therefore as a professional enriched with skills, experience, managerial expertise. Mr. CKP devoted 2 days in imparting the managerial knowledge on future strategy in India to the employees of the appellant. Thus the payment is covered by provisions of Explanation 2 to section 9(1)(vii) which reads as under :- "For the purposes of this clause, 'fees for technical services' means any consideration (including any lump sum consideration) for the rendering of any managerial, technical or consultancy servic....
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....rvices' and also accrued and arise in India as envisaged in section 9(1)(vii)( b) of the Income-tax Act, 1961 and, therefore, taxable in India. Accordingly, it is held that the Assessing Officer was right in treating the appellant in default under section 201 for the remittance of Rs. 40,84,403 with grossed up and charting TDS of Rs. 4,58,270 and interest on section 201(1A) at Rs. 41,244. In the light of the facts, ground No. 3 of the appeal is dismissed." 8. Accordingly, the demand of Rs. 4.99,514 raised by the assessee in pursuance of the order under section 201/201(1A) was confirmed by the ld. CIT(A). Aggrieved by the order of the ld. CIT(A), the assessee has preferred this appeal before the Tribunal. 9. At the time of hearing before us, the ld. counsel for the assessee has filed written submissions wherein the following propositions are put forth in support of the assessee's case that the amount paid to M/s. C.K. Prahlad Inc. of USA was not taxable in India and the assessee-company, therefore, was not under an obligation to deduct tax at source from the said payment :- u As per section 90 of the Income-tax Act ('Act'), an assessee is eligible to adopt provisions ....
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....out prejudice to above, it is submitted that the services rendered by CKP Inc. cannot be termed as technical services as no technical knowledge has been made available Mr. C.K. Prahlad is a management guru and the services rendered by CKP Inc. are in the nature of sharing management experiences and business strategies which are based on common sense, past experience, etc., and has nothing to do with the pharma industry in particular. Please refer to the illustrative presentation made by Prof. C.K. Prahlad at page Nos. 10-65 of PB. u As per the Treaty, provisions of Article 12(4)( b) of the Treaty applies to rendering of only such technical or consultancy services which can 'make available' technical knowledge, experience, skill or know-how, etc. In other words, in order to attract the taxability of an income under Article 12(4)(b), not only the payment should be in consideration for rendering of technical or consultancy services, but, in addition the services so rendered should also be such that 'make available' technical knowledge, experience, skill, know-how, or processes, or consists of the development and transfer of a technical plan or technical design. Recipient of s....
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....ccount, it cannot be said that the definition of FTS as explained earlier has been satisfied in the instant case. Orientation towards business and inculcation of entrepreneurial outlook does not really amount of 'making available' the technical knowledge, experience or skills of the experts of IC2 Institute." u In the case of Intertek Testing Services India (P.) Ltd. ( 307 ITR 418 ), the Authority for Advance Ruling after extracting the relevant portion of MoU between India and US, clarified the meaning of the expression 'make available' as under : "The service should be aimed at and result in transmitting the technical knowledge, etc., so that the payer of service could derive an enduring benefit and utilize the knowledge or know-how in future on his own without the aid of the service provider. By making available the technical skills or know-how, the recipient of the service will get equipped with that knowledge or expertise and be able to make use of its in future, independent of the service provider. In other words, to fit into the terminology 'make available', the technical knowledge, skills, etc., must remain with the person receiving the services even after....
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....nsideration received for supply of information by the assessee-companies, could not be treated as 'fees for included services' and was not liable to be taxed in India under Article 12(4) of the India-US Treaty. The Tribunal relying on the MoU to the Treaty held that technology would be considered 'made available' when the person acquiring the services is enabled to apply the technology. Further consultancy services of a non-technical nature are not taxable under Article 12(4) of the treaty. Geographical specific data and information inputs supplied by the appellant-companies were in the nature of commercial and industrial information and there was no material to suggest that such services enable the recipients of these services to apply the technology." u In Dy. CIT v. Boston Consulting Group (P.) Ltd. 94 ITD 31 (Mum. - Trib) (Refer Page Nos. 150-155 of PB-II), it has been held that strategy consultancy services such as marketing and sales strategy, business strategy and portfolio strategy, etc., are not 'technical' in nature. 10. In addition to the above submissions, the ld. counsel has also relied on the decision of Authority for Advance Ruling in the case of Federati....
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....ilable to the assessee. It is pertinent to note here that the provisions of Article 12(4)(b) of the Treaty cover only such technical or consultancy services which 'make available' technical knowledge, experience, skill or know-how, etc., so as to enable the recipient of services to apply the said technology independently in its business. In the present case, no such technology can be said to have been made available to the assessee-company by CKP Inc. as the services rendered by them to the assessee-company were merely in the nature of sharing management experiences and business strategies. As held by AAR in the case of Federation of Indian Chambers of Commerce & Industry (FICCI) (supra), entrepreneurial workshops does not make available any technology, knowledge or skill though they open up new vistas of thinking. In the case of Intertek Testing Services India (P.) Ltd., In re [2008] 307 ITR 418 2 (AAR - New Delhi), the Authority for Advance Ruling has explained the meaning of the expression 'make available' by observing that to fit into the terminology 'make available', the technical knowledge, skills, etc., must remain with the person receiving the services even after the partic....
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....ancy services so as to fall within the definition of "fees for included services" as given in Article 12 of the Indo-US Tax Treaty. The payment made for the said services, thus, is in the nature of business profits in the hands of CSK as covered under Article 7 of the Treaty and the said party admittedly having no PE in India in the year under consideration, the same was not chargeable to tax in its hand in India. Consequently, the assessee-company was not liable to deduct tax at source from the said payment made to CSK and no liability could be fastened on it under section 201/201(1A). We, therefore, reverse the impugned order of the ld. CIT(A) upholding the order passed by the Assessing Officer on this issue under section 201/201(1A) and allow the appeal of the assessee. 15. Now, we shall take up the appeal of the revenue being ITA No. 4624/Mum./09 wherein the following grounds are raised :- "1. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in holding that the payments made by the assessee do not amount to fees for included services under Article 12(4) of the DTAA on the ground that no technology has been made available to the ....
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....hat make available to the person acquiring the service technical knowledge, experience, skill, know-how or processes or consist of the development and transfer of a technical plan or technical design to such person. Generally, speaking, technology will be considered 'made available' when the Operson acquiring the service is enabled to apply the technology. 3. The assessee-company has further elaborated the activities involved in the bio-equivalence clinical trials and analytical charges and stated that the assessee-company identifies the generic product for bio-equivalence study and the formulations of the bio-equivalent drug is developed by it in its laboratory. Further, the pre-clinical trials on animals and in law and clinical trials on healthy human on pilot study basis are already conducted by the assessee-company. However, in order to register, the drug and submit abbreviated. New Drug Application (ANDA) to the Authority at USA/Canada, the assessee-company approaches CRO for conducting bio-equivalence test for assessee's drug vis-a-vis that of inventor's drug. Thus, as part of its regulatory requirement, each country requires terms of protocol to approved by the stat....
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....sts, the assessee gets technical knowledge, experience and skill whereby it can market is products/drug in that State. On going through copies of invoices furnished in this regard, it is seen that payments made to M/s. AAI Pharma are towards bio-equivalence study of felodipine/10 Mg. ER Tab in Fed conditions and Fasting conditions. The total payments made to AAI Pharma during the period under consideration are Rs. 1,35,42,091. Similarly, payments made to Allied Research International of Canada are towards BE Study of Amioclipine 10 Mg tablets of the assessee Co. v. Norvase 10 Mg. Tablets of M/s. Phizer in healthy male and female Volunteers under Tasting Conditions and Fed conditions. The total payment made is to the tune of Rs. 1,22,71,143. In the case of payments made to M/s. Ana Pharma Inc. totalling to Rs. 1,19,03,304 is for BE Study of Carvedilol 12.5 Mg. 2 way in fasting and fed conditions. In the case of payments to DMP Clinical Research totalling to Rs. 1,89,08,962 is for Bio-equivalence Study of Terbifine Hydrochloride 250 Mg. tablets of Wokhardt against Lamisil 250 Mg. tablets of Novastis in healthy male Volunteers under fasting conditions, etc. Similarly, payment....
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....of A.P. v. CIT 239 ITR 587 has explained the provisions of section 195 of the Income-tax Act, 1961 for tax deduction at source for payments made to the non-residents. After detailed discussion, the Hon'ble Supreme Court decided as under : "Hence, in our view, there is no substance in the contention of learned counsel for applicant that the expression 'any other sum chargeable include cases where any sum payable to the non-resident is a trading receipt which may or may not include pure income'. The language of section 195(1) for deduction of income-tax by the payer is clear and unambiguous and casts an obligation to deduct appropriate tax at the rates in force." The Apex Court of India, thus, laid down the principal that if no application under section 195(2), 195(3) or 197 of the Act is filed, income-tax on gross sum paid to the non-resident has to be deducted and it is the statutory obligation of the person responsible for making payment of such 'sum' to deduct tax thereon before making the payment. Thus, the person making payment to non-resident cannot take unilateral decision that the payment made by him are not sums chargeable to income-tax and, therefore, he could ....
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....ts case by pointing out the distinguishing facts involved in the said cases. The assessee also relied upon various judicial pronouncements in support of its case. 20. After taking into consideration, the submissions made on behalf of the assessee-company as well as the material available on record, the ld. CIT(A) decided this issue in paras 4.22 to 4.29 of his impugned order as under :- "I have considered the facts, findings of the Assessing Officer and submission of AR. The appellant is a leading pharmaceutical company and has in-house research facility approved by DSIR under section 35(2AB) of the Act. The appellant develops different new generic drugs which found to be equivalent to some other reference during patent protection life. If the appellant wants to claim newly developed generic drug as equivalent to original reference drug. The appellant has to establish its claim before FDA Authorities by leading evidence like certificate from CRO. Therefore, the appellant approaches to CROs who carried tests of drugs sample on healthy volunteers who may be prepared to remain present before the doctors during the trial. The same drug may be got analysed by the appellant a....
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....ny research work done for the appellant nor CRO is promoting the drugs of the appellant in the market. The CROs only analysed the generic drugs sent to them for clinical analysis. Moreover findings of AAR are case specific. Similarly, the ruling given in Wallace Pharmaceuticals Ltd. ( 278 ITR 97 ) (AAR) is also distinguishable on facts as brought by the learned AR in above submissions. Thus, these cases have nothing in common with the present case. Therefore, these cases are distinguishable on facts. In the case of ITO v. De Beers India Minerals (P.) Ltd. [2008] 113 TTJ (Bang.) 101 : [2008] (297 ITR (AT) 176), the assessee was engaged in the business of prospecting and mining diamonds for which it was granted licenses by the State Governments of Karnataka, Andhra Pradesh and Chhattisgarh. It engaged Fugro of Netherlands for performing air-borne geographical services on the helicopter hired by the assessee, process data and provide reports. The question was whether the payment made under the agreement constituted fees for technical services. The Tribunal pointed out that Fugro compiled data, processed it and delivered the results to the assessee who would further process th....
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.... I agree that the appellant was not in default if he did not deduct tax at source while making the payment to the service provider within the meaning of section 195. Since the sum was not chargeable in the assessment of the recipient of income, there was no obligation to deduct tax at source under section 195 of the Act. This finding of mine is relevant to remittances made to persons who are residents of USA, Canada, UK, Netherlands, France and Australia. However, so far as payment of Rs. 1.79 lakhs is concerned, the payments have been made to countries where the definition of expression "Fees for technical services" akin to section 9(1)(vii) is applicable. There is no merit in the submission that, even for these residents, the service cannot be considered to be technical service but should be regarded as commercial service. The appellant was definitely required to withhold tax while making remittances of Rs. 1.79 lakhs to different parties who are from countries other than USA, UK, Canada, Netherlands, France and Australia. Therefore, I hold that the Assessing Officer was justified in subjecting the amount to tax in India under section 195 of the Income-tax Act f....
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.... are technical in nature; and n The technical services are such that they make available technical knowledge experience, skill, know-how or processes or consist of the development and transfer of technical plan or technical design to the recipient of the service. u It is by now settled that said clarification is as equally applicable to other treaties having identical provisions. In this case, reliance is to be placed on the following decisions : n Raymond Ltd. v. Dy. CIT ( 86 ITD 791) (Mum. - Trib.) (Refer Page Nos. 116-125 of PB-II). n Dy. CIT v. Boston Consulting Group (P.) Ltd. ( 94 ITD 31 ) (Mum. - Trib.) (Refer Page Nos. 150-155 of PB-II). u The fact that the above definition creates charge only in respect of technical services, i.e., in respect of services which pertain to technology and does not extend to commercial services which do not relate to transfer of technology is supported by the protocol clarification. u Based on the above principles and further having regard to following facts, services provided by CRO fall outside the scope of Article-12 Royalties and fees for included services. n The methodology of....
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....uated in USA. The Hon'ble Court held that this is a case of application of knowledge, experience, technology by an expert for preparation and issuance of an expert report and, accordingly, what the client receives is the report where the GIA uses its commercial or technical knowledge to give the report which is used by client for its commercial purpose. The Court compared the situation to be illustratively comparable to a lawyer giving advice to his client, a doctor giving his medical opinion, a laboratory issuing blood analysis report and the like (Para 11). Accordingly to the Court, GIA is not making available any knowledge, experience or skill to enable the person acquiring the services to apply the technology of GIA (Para 8) contained in the report. This, according to the Court, did not involve transfer of any technical knowledge or experience from GIA to the client nor the rendering of any service by GIA covered by Article 12 of DTAA, so as to warrant deduction to tax under section 195 of the Act (Para 11). u Reliance is placed in the case of National Organic Chemical Industries Ltd. v. Dy. CIT ( 5 SOT 317) (Mum. - Trib.) where it has been held that the payments made ....
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.... of respective countries to furnish the report and data to the assessee of the trial conducted of the pharma drug. The said report can be used to produce before the statutory authorities as and when required as evidence of the experiments having been conducted. u Thus, the services of the CROs are rendered outside India for the purpose of making or earning income on sale of bio-drug from outside India, i.e., US, UK, Canada, etc., and, hence, the remittances for the said services cannot be taxed in India. u Reliance in this case is placed on the following judicial precedents : n CIT v. Aktiengesellschaft Kuhnle Kopp and Kausch ( 262 ITR 513) (Mad.) n Titan Industries Ltd. v. ITO, International Taxation, Ward 19(1), ( 11 SOT 206 ) (Bang.) n Lufthansa Cargo India (P.) Ltd. v. Dy. CIT ( 91 ITD 133 ) (Delhi). 24. We have considered the rival submissions and also perused the relevant material on record. The assessee, in the present case, is a pharmaceutical company having in-house research facility. In order to claim that any newly developed generic drug is equivalent to original reference drug, it has to adduce evidence in the form of cert....