2016 (9) TMI 650

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....e education progammes. It is claimed in the application that CEE develops and delivers open enrolment and customs programmes for business executives in United States of America and also internationally. It is pointed out that the application was originally incorporated under the name of "Newco Executive Education" on 26th November, 2012 with the sole objective to "provide executive education' by offering a broad array of programmes for corporates and institutional clients seeking professional development and to carry on other charitable and educational activities allowed by the law:" 2. It is then pointed out, subsequently vide certificate of amendment dated 19.2.2013 the name of the corporation was changed to UC Berkeley Center for Execut....

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....icant. It is further clarified in the agreement that the inter se relationship between the applicant and Northwest was that of independent contractor and not a joint venture. A consideration was to be passed by the applicant. On this backdrop, the applicant raised the following questions:- (i) Whether programme fee received by the applicant in terms of clause 2 of the Programme Delivery Agreement is chargeable to tax in India as fees for included services within the meaning of the said term under Article 12 of India-US Double Tax Avoidance Agreement (DTAA for short) and/or the provisions of Section 9(1)(vii) of the Income Tax Act and, therefore, subject to withholding tax under Section 195 of the Income Tax Act, 1961? (ii) Whether in fac....

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.... to establish that the corporation is operating as an educational institution. The Revenue is viewing the applicant to be a mere facilitating agent.   (b) The second objection raised by the Revenue is that the applicant does not have the faculty of its own for running the programmes and the entire faculty is being provided by University of California, Berkeley. The Revenue, therefore, claims that the applicant is not directly involved in the activity of teaching. Again it is reiterated by the Revenue that it is not the applicant but the Berkeley University whose faculty offers the programmes to Northwest. There are some other insignificant contentions raised by the Revenue. However we have paraphrased the main objections of the Revenu....

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....must consider the serious objections raised by the Revenue Department to the effect that the applicant is not an educational institution and that it is merely a facilitating institution. 12. We do not see any basis for these objections. The applicant has provided all certificates including the certificate of its incorporation and has filed them as Exhibit-1 before us. From the certificate, it is clear that it is an educational institution for carrying on charitable and educational activities allowed by law. These Articles of incorporation were in respect of Newco Executive Education institution which ultimately transformed into UC Berkeley Centre for Executive Education. We, therefore, do not have any doubt that the applicant is an educati....