TaxTMI 
TaxTMI 
2019 (10) TMI 1127
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.... before learned CIT(A) from separate assessments orders dated 24.03.2014, 31.03.2015, 26.12.2016 & 26.12.2016 respectively passed by learned Assessing Officer (hereinafter called "the AO") u/s.143(3) of the Income-tax Act, 1961 (hereinafter called "the Act") for aforesaid ay's: 2011-12 to 2014-15 respectively. 2. The two appeals in ITA Nos.467 & 468/Chny/2018 filed by Revenue for ay: 2013-14 and 2014-15 respectively are the appeals wherein the tax effect is admittedly lower than Rs. 50,00,000/- and both these appeals are covered by CBDT Circular No. 17/2019 dated 08.08.2019 and hence these two appeals filed by Revenue are not maintainable before the tribunal due to low tax effect. The ld.CIT-DR fairly admitted that these two appeals filed by Revenue are not covered/hit by various exceptions as applicable to aforesaid CBDT Circular and hence both these appeals may be dismissed owing to low tax effect as these appeals are not maintainable before the tribunal. The learned Counsel for the assessee also submitted that both these appeals filed by Revenue for ay: 2013-14 and 2014-15 are covered by aforesaid CBDT circular and can be dismissed owing to low tax effect. After hearing both ....
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....lowance made u/s 14A r.w. rule 8D ignoring the fact that the assessee had not incurred any expenditure for earning dividend income. 2.2 The ld. CIT(A) relied upon the decision of the ITAT in assessee's own case for A.Y.2008-09 in ITA.No.1774/Mds/2012 dated 19.07.2013. The above decision of the ITAT was not accepted by the department and appeal to the High Court has been filed with regard to the deletion of disallowance made u/s.14A of the Act. 3.1 The ld. CIT(A) has erred in deleting the disallowance of payment made to Fund Quest u/s.40(a)(ia) of the Act stating that the said payment was not in the nature of royalty falling within the ambit of provisions of section 9(1)(vi) of the Act. 3.2 The ld. CIT(A) relied on the decision of the ITAT in assessee's own for A.Y. 2008-09 in ITA.No.1774/Mds/2012 dated 19.07.2013. The above decision of the ITAT was not accepted by the department and appeal to the High Court has been filed against the deletion of disallowance of payment made to Fund Quest. 4.1 The ld. CIT(A) has erred in deleting the disallowance of expenses in the nature of repairs / improvements made to lease hold rented premises treatin....
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....o Section 9(1)(vii) of the 1961 Act which , inter-alia, stipulated that fees for technical services means any consideration for the rendering of any managerial, technical or consultancy services. The AO observed that these are payments made for technical services and keeping in view explanation to Sec.9(1)(vii) of the 1961 Act as introduced by the Finance Act, 2010 with retrospective effect from 01.06.1976 which stipulated that these payments shall be taxable only in India irrespective of the place where the services are rendered . The aforesaid explanation provided as under: "[Explanation.-For the removal of doubts, it is hereby declared that for the purposes of this section, income of a non-resident shall be deemed to accrue or arise in India under clause (v) or clause (vi) or clause (vii) of sub-section (1) and shall be included in the total income of the non-resident, whether or not,- (i) the non-resident has a residence or place of business or business connection in India; or (ii) the non-resident has rendered services in India.]" Thus, the AO brought the aforesaid payments made by assessee to BNP Paribas Investment Singapore Limited, Singapore wi....
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....e, on a non-exclusive basis, the classes and categories of shares or units (collectively, "Units"), as the case may be, of those sub-funds of the Fund listed in the Annexes hereto, provided always that such distribution shall be executed in accordance with all applicable laws and regulations, the terms of the Relevant Documents. It is acknowledged that pursuant to this Agreement, BNPP IP Singapore's distribution of the Fund may be performed directly or indirectly by way of commercializing foreign domiciled collective investment schemes that invest as feeders into the Fund. b. Issue of Units: Sundaram hereby agrees to procure, in accordance with the terms of the Prospectus and Trust Deed, or Articles as the case may be, the issuance of the Units to BNPP IP Singapore's clients to the extent that the distribution is effected in accordance with the terms of the Relevant Documents and hereof and subscriptions for Units are effected in accordance with the Relevant Documents. BNPP IP Singapore may use all legally available means, including electronic media (e.g. Internet, website, email) in order to distribute the Units in accordance with this Agreement.....
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....o bind or represent Sundaram or the Fund as an agent thereof. f. Compliance: BNPP IP Singapore shall ensure that Units of the Fund are only marketed and sold in jurisdictions and to such of its clients in compliance with all applicable laws and regulations, including (but not limited to) regulations in any relevant jurisdiction relating to the marketing and selling of the Units by way of public offers and private placements, the terms of this Agreement and the Relevant Document, BNPP IP Singapore acknowledges the restrictions on sales in countries where the Fund is not authorized for public sale, such as the United States, and agrees to comply with such restrictions. BNPP IP Singapore shall not sell or offer to sell any Units in the United States, its territories or possessions, or remit any Fund related documentation to a "US Person", as such term is defined in Regulation S of the United States Securities Act of 1933, as amended, except in connection with transactions exempt from registration under the Securities Act of 1993. Any failure to comply with these restrictions may constitute a violation of the US Securities Laws. Moreover, in the event of subscriptions....
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....icle means payments of any kind to any person in consideration for services of a managerial, technical or consultancy nature (including the provision of such services through technical or other personnel) if such services : (a) are ancillary and subsidiary to the application or enjoyment of the right, property or information for which a payment described in paragraph 3 is received ; or (b) make available technical knowledge, experience, skill, know-how or processes, which enables the person acquiring the services to apply the technology contained therein ; or (c) consist of the development and transfer of a technical plan or technical design, but excludes any service that does not enable the person acquiring the service to apply the technology contained therein. For the purposes of (b) and (c) above, the person acquiring the service shall be deemed to include an agent, nominee, or transferee of such person. 6.9 From a perusal of Article 12(4)(a) of the India-Singapore Double Taxation Avoidance Agreement (DTAA), it is seen that 'fees for technical services' as used in that Article means any services of managerial, technical or con....
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....having regard to facts and circumstances of each case. 6.12 The suitability Clause of the Distribution Agreement make it abundantly clear what exactly are the services rendered by BNP IP Singapore to appellant. The Clause reads as under: i. Suitability : BNPP IP Singapore confirms that it has put in place and implements client suitability policies and procedures in accordance with applicable law, regulation and market practice to ensure, among other things, that: (i) BNPP IP Singapore's individual investment advisers are properly trained to know its clients and understand the investment product they recommend to such clients; (ii) Any advice given by BNPP IP Singapore regarding investments in any sub-fund of the Fund is reasonably suitable for its clients, by matching the risk return profile of the subfund with relevant information on the client (such as education level, source of income or employment history, net-worth, financial market knowledge, investment experience, investment objectives and risk tolerance level); (iii) All relevant material information is provided to BNPP IP Singapore's clients to help them make informed in....
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....rvices" means any consideration (including any lump sum consideration) for the rendering of any managerial, technical or consultancy services (including the provision of services of technical or other personnel) but does not include consideration for any construction, assembly, mining or like project undertaken by the recipient or consideration which would be income of the recipient chargeable under the head "Salaries". 6.15 In the case on hand, the recipients of the fees for technical services rendered services outside India. Nevertheless, the relevant Explanation below; Section 9(2) reads as follows: Explanation.- for the removal of doubts, it is hereby declared that for the purposes of this section, income of a non-resident shall be deemed to accrue or arise in India under clause (v) or clause (vi) or clause (vii) of sub-section (1) and shall be included in the total income of the non-resident, whether or not,--- (i) the non-resident has a residence or place of business or business connection in India; or (ii) the non-resident has rendered services in India. 6.16 Therefore, as far as section 9(1)(vii)(b) is concerned, Fees for Technical Servic....
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....erefore, to remove doubts regarding the source rule, an Explanation was inserted below sub-section (2) of section 9 with retrospective effect from 1st June, 1976 vide Finance Act, 2007. The Explanation sought to clarify that where income is deemed to accrue or arise in India under clauses (v), (vi) and (vii) of sub-section (2) of section 9, such income shall be included in the total income of the non-resident, regardless of whether the non-resident has a residence or place of business or business connection in India. However, the Karnataka High Court, in a recent judgement, in the case of Jindal Thermal Power Company Ltd, vs DCTT [TDS] has held that the Explanation, in its present form, does not do away with the requirement of rendering of services in India for any income to be deemed to accrue or arise to a non-resident under section 9. It has been held that on a plain reading of the Explanation, the criteria of rendering services in India and the utilization of the service in India laid down by the Supreme Court in its judgement in the case of Ishikawajima-Harima Heavy Industries Ltd. (supra) remains untouched and unaffected by the Explanation. In order to remov....
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...." gives primacy to the country of the residency of the assessee. This principle postulates taxation of worldwide income and worldwide capital, in the country of residence of the natural or juridical person. The "Source State Taxation" rule confers primacy to right to tax to a particular income or transaction to the State/nation where the source of the said income is located. The second rule, as is understood, is transaction specific. To elaborate, the source State seeks to tax the transaction or capital within its territory even when the income benefits belongs to a non-residence person, that is, a person resident in another country. The aforesaid principle sometimes is given a different name, that is, the territorial principle. It is apt to state here that the residence based taxation is perceived as benefiting the developed or capital exporting countries whereas the source based taxation protects and is regarded as more beneficial to capital importing countries, that is, developing nations. Here comes the principle of nexus, for the nexus of the right to tax is in the source rule. It is founded on the right of a country to tax the income earned from a source located in t....
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....g to the instant case, it is evident that fees for technical services have been paid to non-resident, and, it is also seen that the payment made would be covered under the expression "Fees for Technical Services" as contained in section 9(1)(vii)(b) read in conjunction with the Explanation there under. Since the fees for technical services paid by the appellant was in respect of services utilized in a business carried on in India, the fees payable is subject to tax as per the provisions of Sec.9(1)(vii)(b). Accordingly, I find that there is territorial nexus with India, as far as the services rendered by the non-residents to the business of the appellant is concerned. 6.21 The Hon'ble Supreme Court of India, in the case of Transmission Corporation of Andhra Pradesh Ltd. Vs CIT (SC)(239 ITR 587) declared that any person making payments to a non-resident would be liable to deduct tax when the payment so made is chargeable to tax under the Income Tax Act, 1961. 6.22 In view of the above, the disallowance made for non-deduction of tax on technical services u/s.40(a)(ia) by the Assessing Officer is sustained in respect of the assessment years under consideration. T....
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....-resident, the assessee ought to have deducted income-tax at source before remitting payment to BNP Paribas. The learned CIT-DR submitted that while distributing investment products of the assessee, BNP Paribas is rendering services as it has technical expertise in mobilizing funds and hence these are technical services. 8.3. The learned counsel for the assessee submitted in rejoinder that additions had been made under the head 'Fee for Technical Services' and the payments were not in the nature of Royalty. It was submitted that these services did not make available any technical knowledge or knowhow to the assessee and as per Singapore DTAA , it is required that the technical know-how should be made available which could be applied to come within the ambit of deduction of income-tax at source. It was submitted that arrangement between assessee and BNP Paribas is on principal to principal basis. Attention was drawn to India-Singapore DTAA. It was submitted even if there is an principal to agency relations between assessee and BNP Paribas, it would not made any difference as even then, the assessee was not liable to deduct income-tax at source before remitting payment to BNP P....
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....rein. Moreover, the services were rendered abroad by payee and payments were also made by assessee by remitting payment abroad in foreign currency. Keeping in view aforesaid provisions/clauses as are contained in India-Singapore DTAA, these payments cannot be held to be taxable in India and consequently assessee was not required to deduct income-tax at source u/s 195 of the 1961 Act while remitting payment abroad to said BNP Paribas, Singapore. It is well established principle in tax-matters that taxing statute provisions under domestic law or treaty provisions whichever are beneficial to the assessee shall be applicable. The treaty provision in the instant case contains make available clause, while BNP Paribas did not made available any technical know how or knowledge to the assessee which could enable assessee to apply technical knowledge contained therein. The decision of Hon'ble Karnataka High Court in the case of CIT v. De Beers India Minerals Private Limited reported in (2012) 21 taxmann.com 214(Kar.) is relevant. Thus, under these circumstances, we order deletion of the additions made by the AO which stood later confirmed by learned CIT(A) to the tune of payment of Rs. 37....
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....The AO observed that assessee is actively engaged in the field of investment in shares and Mutual Funds . The AO observed that total assets of the assessee as on 31.03.2011 was Rs. 65.02 Crs. The assessee has also contended before AO that out of total investments of Rs. 21.30 crores held by assessee as on 31.03.2011, no dividend was received on investments to the tune of Rs. 17.50 crores and hence such investments should not be considered for computing disallowance u/s 14A read with Rule 8D of the 1962 Rules. The AO rejected the contentions of the assessee that no expenses were incurred by the assessee for earning of an exempt income. The AO observed that part of administrative overhead and expenses on salary , travel etc. for top management executives who are involved in investment portfolio are to be disallowed. The AO also observed that all investments , income from which does not or shall not form part of the total income shall be considered for disallowance u/s. 14A of the 1961 Act read with Rule 8D of the 1962 Rules. The AO also referred to CBDT circular no. 5 / 2014 dated 11.02.2014. The AO applied Rule 8D of the Income-tax Rules, 1962 and made disallowance u/s.14A r.w.r.....
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....e assessee was confronted by the Bench with decision of Hon'ble Supreme Court in the case of M/s. Maxopp Investment Ltd v. CIT (2018) 402 ITR 640(SC). 13. We have considered rival contentions and have perused the material on record including cited case laws We have observed that assessee is an asset management company for mutual fund. The assessee has investments in mutual fund and other investments, the assessee has received dividend income from mutual fund to the tune of Rs. 92,63,481/- which was clamed as an exempt income u/s.10 of the 1961 Act. The assessee has claimed that he has not incurred any expenditure in relation to earning of an exempt income. However, AO has invoked provisions of Sec.14A r.w.r. 8D(2)(iii) of the 1962 Rules to make total disallowance of Rs. 11,72,157/- @ 0.5% of the average investments. The investment made by assessee as on 31.03.2010 was Rs. 25.58 Crs. whereas it was Rs. 21.30 Crs. as on 31.03.2011. The assessee has claimed that short term investments cannot be considered for the purpose of making disallowance u/s.14A of the 1961 Act owing to fact that short term capital gains earned on these investments had suffered taxation. We are not in agreeme....
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....the technical services' and hence no income-tax was deducted at source while making remittance in foreign currency to above party. 14.2 The AO observed that said M/s.Fund Quest has rendered following services vide Article III of the agreement entered into by assessee with said Fund Quest: "The Investment Advisor shall give advice, extend assistance, render services and furnish information, data and reports in respect of the Account to the Manager or to such other entity as the Manager may direct, in the manner, form and when required by them in connection with the investment activities of the Manager in respect of the Account. The activities of the Investment Advisor as referred to in the foregoing Section may, without limitation, include: a. providing research reports, macro and micro economic analysis and other financial advisory services; b. recognise sources for value creation; c. advising on investigation, structuring, monitoring of Portfolio Securities as the case may be; d. assist in formulation and evaluation of strategies for investment and disinvestment including providing analysis and investigations of potential di....
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....deration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, or films or tapes used for radio or television broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience". 14.3 The AO relied upon the decision of Mumbai-tribunal in the case of M/s Essar Oil Limited v. JCIT (2005) 4 SOT 161.The AO observed that data base developed by M/s.Fund Quest has been furnished to the assessee located in India and the same has been utilized by assessee to get maximum profits on investments made abroad. Thus, the AO was of the view that the data base developed by M/s Fund Quest was made available by it to assessee . The AO referred to Article III of the agreement which stipulated as under: " 3.4 The Investment Advisor will make available to the Manager the use of its name and its logo in any documentation previously approved by the Investment Advisor which the Manager produces in respect of the advice contemplated herein." 14.4 Thus , the AO held that the assessee made payments for receipt of technical knowle....
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....774/Mds/2012 dated 19.07.2013 for ay: 2008-09, wherein it was held by the Ld.CIT(A) as under: ".......5.1 The AO found that the appellant made payments towards sub-advisory fees to Fund Quest, France, for services rendered abroad. The appellant submitted that Fund Quest compiles the research data which is publicly available and transmits the information in the form of investment reports to the appellant. However, the AO held that the payments are in the nature of 'royalty' which is deemed to accrue or arise in India as defined in Explanation (2) of Sec.9(1)(vi) and as such liable to tax in India. Hence, the AO disallowed the payments made to Fund Quest u/s.40(a)(ia) of the Act on the ground of non-deduction of tax at source u/s.195 of the Act. 5.2 The appellant submitted that this issue was decided in favour of the appellant in its own case by the Hon'ble ITAT vide order in ITA No. l774/Mds/2012 dated 19.07.2013 for the A.Y. 2008-09 which is as follows: Extracted from ITAT's order dated 19.07.2013 "iii. The third ground in the appeal relates to dis-allowance u/s. 40(a)(ia). The assessee is into investment business. The assessee has en....
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....sting, but not including consideration for the sale, distribution or exhibition of cinematographic films ; or (vi) the rendering of any services in connection with the activities referred to in sub-clauses (i) to [(iv), (iva) and](v). Thus, a perusal of the term of 'Royalty' as defined in the Act shows that it does not include any information provided in the course of advisory services. We do not agree with the findings of the CIT(Appeals) on the issue. Since, payments made to M/s. Fund Quest are not in the nature of 'Royalty' and the services were rendered abroad, no part of income had accrued or arisen in India. The assessee is not liable to deduct tax at source on the payments so made. The findings of the CIT(Appeals) on this issue are set aside and this ground of appeal of the assessee is allowed. 5.3 I have considered the findings of the AO and the written submissions made by the AR. Respectfully following the above decision of the Hon'ble ITAT, the AO is directed to delete the disallowance made u/s.40(a)(ia) of the payment made to Fund Quest. The appellant succeeds on this ground for the assessment years under consideration." 16. Aggrieved by....
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....decisions. The information provided to the assessee by Fund Quest in the form of database is published information which is available in public domain. M/s. Fund Quest has merely compiled the information and transmitted the same to assessee. The authorities below termed the payments made by the assessee to M/s. Fund Quest for the services and data provided as 'Royalty'. We are of the considered opinion that such payments cannot be termed as 'Royalty' as defined under the provisions of the Act. The term 'Royalty' has been defined in Explanation (2) to Section-9, Sub-section-1, Clause-(vi) which is re-produced here in below: Explanation 2.-For the purposes of this clause, "royalty" means consideration (including any lump sum consideration but excluding any consideration which would be the income of the recipient chargeable under the head "Capital gains") for- (i) the transfer of all or any rights (including the granting of a licence) in respect of a patent, invention, model, design, secret formula or process or trade mark or similar property ; (ii) the imparting of any information concerning the working of, or the use of, a patent, invention, model....
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....peal concerns itself with decision of learned CIT(A) IN deleting the disallowance of expenses made by the AO w.r.t. to expenses incurred by assessee in the nature of repairs and improvement made to leasehold building not owned by assessee which was used for office premises , to the tune of Rs. 43,63,256/- which were claimed by assessee as revenue expenditure in the return of income filed with Revenue. The AO had observed that these expenses were on account of improvement of rented building used as office premises. The assessee claimed that these expenses were incurred in the lease hold premises which are neither in the nature of current repairs nor in the nature of capital expenditure . The assessee claimed that these expenses are allowable as revenue expenses u/s 37 of the 1961 Act and cannot be capitalized . 19. The AO observed that assessee had incurred these expenses exclusively towards interior decoration, extension and renovation of the office premises leading to improvements in rented buildings and treated the same as capital in nature. The AO referred to amended provisions of Section 32 and 30 of the 1961 Act, wherein expenditure incurred on lease hold premises not owned....
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..../- as revenue expenditure. The authorities below have held the same to be capital expenditure. The assessee has taken office building on lease for the period of three years with an option to extend with the consent of both parties. An Explanation 1 to Section 32(1) clearly spells out that where the business or proFESSION of the assessee is carried on in a building not owned by him, in respect of which the assessee holds a lease or other rights of occupancy, any capital expenditure is incurred by the assessee for the purpose of the business or profession on the construction of any structure or doing of any work in or in relation to and by way of renovation or extension or improvement to the building, then the provisions of this clause shall apply as if the said structure or work is building owned by the assessee. However, the aforesaid provisions are applicable where new asset has come into existence. The assessee in support of his contentions has relied on the order of the co-ordinate bench of the Tribunal in the case of M/s. Sundaram BNP Paribas Asset Management Company Ltd., Vs. ACIT (supra), the Tribunal in the aforesaid order has held as under: 5. We have considered th....
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....sue is decided by the tribunal in assessee's own case for ay:2008-09 in assessee's favour and the Revenue is in appeal before Hon'ble Madras High Court. This position was not controverted by learned counsel for the assessee. The ld. counsel for the assessee submitted that the amount spent towards painting ,interior decoration, etc., is towards current repairs and is revenue in nature. The learned counsel for the assessee prayed that relief be granted to the assessee. 22. We have considered rival contentions and perused the material on record including cited case laws. We have observed that assessee has incurred expenditure on repairs and renovation of office premises which was taken on lease by the assessee and was not owned by assessee. The AO has come to conclusion that these are expenses incurred for interior decoration, extension and renovation of the office premises leading to enduring benefit to the assessee , while the assessee is claiming it to be revenue in nature . These are factual issues depending upon nature of expenses incurred and whether these expense had brought benefit of enduring nature to the assessee. Each year is a separate unit and the facts may vary from ....
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....llowed the same as being in the nature of fees for "professional or technical services' u/s.194J of the Act and made disallowance u/s.40(a)(ia) of the Act, 8.2 The appellant submitted that this issue was decided in favour of the appellant in its own case by the Hon'ble ITAT vide order in ITA No.1774/Mds/2012 dated 19.07.2013 for the A.Y. 2008-09 which is as follows: Extracted from iTATs order dated 19.07.2013: vii. The seventh ground of appeal relates to payments made to mutual fund distributors amounting to Rs. 16,41,14,706/- disallowed u/s.40(a)(ia). The assessee had not deducted tax at source on the payment of the brokerage/commission paid to the mutual fund distributors on the ground that commission and brokerage does not include any payment made directly or indirectly on securities. The Revenue has termed the payments made to the brokers as Fees for Professional & Technical Services and held that the assessee was liable to deduct tax under the provisions of Section 194J. The provisions regarding deduction of tax at source on commission and brokerage are contained in Section 194H of the Act. The relevant extract of the sectio....
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....xx" From the perusal of aforesaid provisions of Section 194H and the definition of 'Securities' as defined under Securities Contract Regulation Act, it is clearly evident that securities include Mutual Funds and the provisions of Section 194H excludes commission or brokerage paid on securities. The authorities below have held that the assessee should have deducted tax on commission/brokerage u/s. 194J of the Act as the services rendered by the brokers are professional and/or technical services. 'Professional Services' are defined in Explanation(a) to Section 194J as under: Explanation.- (a) "professional services" means services rendered by a person in the course of carrying on legal, medical, engineering or architectural profession or the profession of accountancy or technical consultancy or interior decoration or advertising or such other profession as is notified by the Board for the purposes of section 44AA or of this section; A perusal of the above definition makes it abundantly clear that services rendered by Mutual Fund brokers do not fall within the term 'Professional Services'. The services of Mutual Fund brokers cannot be terme....