AI Drafter 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2023 (8) TMI 30
X X X X Extracts X X X X
X X X X Extracts X X X X
....segment capacity services and digital satellite news gathering services as royalty income, both, under section 9(1)(vi) of the Act as well as under Article 12(3) of India- Singapore Double Taxation Avoidance Agreement (DTAA). 4. Briefly, the facts relating to this issue are, the assessee is a non-resident corporate entity and a tax resident of Republic of Singapore. As stated, principal activities of the assessee are that of satellite telecommunication network operations and wholesale of electronic and telecommunication equipments and parts. In course of assessment proceedings, the Assessing Officer noticed that the assessee had receipts from disaster recovery up-linking services, disaster recovery play-out services, down-linking and distribution services, digital satellite news gathering services etc. However, the assessee has not offered them to tax in India. Being of the view that the receipts from such services are in the nature of royalty as defined under section 9(1)(vi) of the Act and Article 12(3) of India-Singapore DTAA, the Assessing Officer issued a show cause notice to the assessee to explain as to why such receipts should not be brought to tax in India as royalty in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d equipment. 24. In our considered opinion, the term process can be understood as a sequence of interdependent and linked procedures or actions consuming resources to convert inputs into outputs. Various tangible equipment and resources may be employed in executing a process but 'process' per se, just like a formula or design, is intangible. 25. In our understanding, the term 'process' as contemplated under the definition of royalty has been rather been used in the context of' know-how' and intellectual property. We are of the considered view that Royalty in relation to 'use of a process' envisages that the payer must use the 'process' on its own and bear the risk of its exploitation. However, in the case in hand, If the 'process' is used by the service provider himself and he bears the risk of exploitation or liabilities for the use, then as the service provider makes own entrepreneurial use of the process, therefore, income cannot be characterized as royalty. 26. Considering the facts of the case in totality, we are of the considered view that the assessee provides services to its customers using its equipment outside India. Vari....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rocess" used must be secret or not. This confusion was brought about by a difference in the punctuation of the definitions in the DTAAs and the domestic definition. For greater clarity and to illustrate this difference, we reproduce the definitions of royalty across both DTAAs and sub clause (iii) to Explanation 2 to 9(1)(vi). Article 12(3), Indo Thai Double Tax Avoidance Agreement: 3. The term "royalties" as used in this article means payments of any kind received as a consideration for the alienation or the use of, or the right to use, any copyright of literary, artistic or scientific work (including cinematograph films, phonographic records and films or tapes for radio or television broadcasting), any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience." (emphasis supplied) Article 12(4), Indo Netherlands Double Tax Avoidance Agreement "4. The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the rig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0 came up for construction. By this section whoever "manufactures for sale, sells, stocks or exhibits for sale or distributes" a drug without a license is liable for punishment. In holding that mere stocking shall not amount to an offence under the section, the Supreme Court pointed out the presence of after "manufactures for sale" and "sells" and the absence of any comma after "stocks" was indicative of the fact "stocks" was to be read along with "for sale" and not in a manner so as to be divorced from it, an interpretation which would have been sound had there been a comma after the word "stocks". It was therefore held that only stocking for the purpose of sale would amount to an offence but not mere stocking. 57. However, the question, which then arises, is as follows. How is the court to decide whether a provision is carefully punctuated or not? The test- to decide whether a statute is carefully (read consciously) punctuated or not- would be to see what the consequence would be had the section been punctuated otherwise. Would there be any substantial difference in the import of the section if it were not punctuated the way it actually is? While this may not be conclusi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te operators and their customers (including broadcasting and telecommunication enterprises) frequently enter into transponder leasing agreements under which the satellite operator allows the customer to utilize the capacity of a satellite transponder to transmit over large geographical areas. Payments made by customers under typical transponder leasing agreements are made for the use of the transponder transmitting capacity and will not constitute royalties under the definition of paragraph 2; these payments are not made in consideration for the use of, or right to use, property, or for information, that is to in the definition (they cannot be viewed, for instance, as payments for information or for the use of, or right to use, a secret process since the satellite technology is not transferred to the customer). As regards treaties that include the leasing of industrial, commercial or scientific (ICS) equipment in the definition of royalties, the characterization of the payment will depend to a large extent on the relevant contractual arrangements. Whilst the relevant contracts often refer to the lease of a transponder, in most cases the customer does not acquire the physical posses....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l as Klaus Vogel only on the ground that it is not safe to rely upon the same. However, what is ignored is that when the technical terms used in the DTAA are the same which appear in Section 9(1)(vi), for better understanding all these very terms, OECD commentary can always be relied upon. The Apex Court has emphasized so in number of judgments clearly holding that the well-settled internationally accepted meaning and interpretation placed on identical or similar terms employed in various DTAAs should be followed by the Courts in India when it comes to construing similar terms occurring in the Indian Income Tax Act.... 78. There are judgments of other High Courts also to the same effect. (a) Commissioner of Income Tax Vs. Ahmedabad Manufacturing and Calico Printing Co., [139 ITR 806 (Guj.)] at Pages 820-822. (b) Commissioner of Income Tax Vs. Vishakhapatnam Port Trust [(1983) 144 ITR 146 (AP)] at pages 156-157. (c) N.V. Philips Vs. Commissioner of Income Tax [172 ITR 521] at pages 527 & 538-539." 59. On a final note, India's change in position to the OECD Commentary cannot be a fact that influences the interpretation of the words def....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion before Delhi High Court in case of Asia Satellite Telecommunications Co. Ltd. Vs. DIT, reported in (2011) 332 ITR 340. It was the case in which the assessee a non-resident was engaged in satellite communication, having control of satellites. The assessee would provide use of transponder facility on satellite to the television companies outside India, which in turn would be routed to the operators in India, who would pass them on to the customers. The question was whether the payments made to the non-resident were in the nature of royalty and therefore come within the scope of section 9(1) of the Income Tax Act, 1961 ('the Act' for short). The Court by a detailed judgment held that the payments were not in the nature of royalty charges. The Court made a distinction between transfer of rights in respect of property and transfer of rights in the property. 4. Later on similar issue once again came before Delhi High Court in the case of Directorate of Income-tax Vs. New 4/7 06- ITXA-1487-18.odt Skies Satellite BV, reported in (2016) 382 ITR 114. The Court followed the earlier decision in case of Asia Satellite Telecommunication (supra) and dismissed the revenue'....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Accepted position was that the first two steps were not carried out in India and the entire thrust of the reroute was limited to the third step and the argument was that the relaying of the programmes in India amounted to the operations carried out in India. That argument was not sustainable. Merely because the footprint area included India and the ultimate consumers/viewers were watching the programmes in India, even when they were uplinked and relayed outside India, would not mean that the assessee was carrying out its business operations in India. The Tribunal had rightly emphasized on the expressions 'operations' and 'carried out in India' occurring in the Explanation (a ) to hold that these expressions signify that it was necessary to establish that any part of the assessee's operations was being carried out in India. No machinery or computer, etc., was installed by the assessee in India through which the programmes were reaching India. The process of amplifying and relaying the programmes was performed within the satellite which was not situated in the Indian airspace and even the Tracking, Telemetering and Control (TTCj operations were also perf....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as been defined in //^Explanation 2 to section 9(1)(vi). In the case o/ Keshavji Ravji & Co. v. C1T [I990j 183 ITR I 49 Taxman 87. the Supra'-. Court held that an Explanation, generally speaking, is intended to explain the meaning of certain phrases an, expressions contained in the statutory provisions. There is no general theory as to the effect and intendment of an Explanation, except that the purpose and intendment are determined by its own words. An Explanation depending upon its own language, might supply or take away something from the contents of a provision It also true that an Explanation may be introduced by way of an abundant caution in order to clear any menu cobwebs surrounding the meaning of the statutory provision spun by interpretative errors and to place who the Legislature considers to be true meaning, beyond any controversy or doubt. In view of the decision of Supreme Court in Keshavji Ravji & Co.'s case /supra), the Explanation 2 has to be read as part and parcel section 9(1)(Vi). From a joint reading of the Explanation to section 9 inserted with effect from 1-6-1976 by the Finance A c 2007 which has been again substituted by the Finance Act, 20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ncome. [Para 54] Keeping in view the aforesaid principles, one should embark upon the interpretative process while defining the ambit and scope of the term 'royalty' appearing in the Explanation 2 to clause (vi) of section 9(1). Clause (i) deals with the transfer of all or any rights (including the granting of a licence) in respect of a patent, rtc. Thus, what this clause envisages is the transfer of "rights in respect of property" and not transfer of "right : the property". The two transfers are distinct and have different legal effects. In the first category, the rights are purchased which enable use of those rights, while in the second category, no purchase is involved: o>: the right to use has been granted. Ownership denotes the relationship between a person and an obp. forming the subject-matter of his ownership. It consists of a bundle of rights, all of which are rights in re~ being good against the entire world and not merely against a specific person and such rights a . indeterminate in duration and residuary in character When the rights in respect of a property are transfer. and not the rights in respect of property are transferred and not the rights in the proper....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ite as such. The transponder is, in fact, an inseverable part of the satellite and cannot function without the continuous support of various systems and components of the satellite, including in particular the following : (a) Electrical Power Generation by solar arrays and storage battery of the satellite, which is common to and supports multiple transponders on board the satellite. (b) Common input antenna for receiving signals from the customers' ground stations, which are shared by multiple transponders. (c) Common output antenna for re-transmitting signals to the footprint area on earth, which are shared by multiple transponders. (A) Satellite positioning system, including position adjusting thrusters and the fuel storage and supply system therefore in the satellite. It is this positioning system which ensures that the location and the angh of the satellite is such that it receives input signals properly and re-transmits the same to the exact desired footprint area. (c) Temperature control system in the satellite, i.e., heaters to ensure that the electronic component- do cease to operate in conditions of extreme cold, when the sa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h had accrued in India and they had offered and paid tax. Thus, the income generated in India had been ■July subjected to tax in India. It M>as the payment made by the telecast operators situated abroad to the ' set also a non-resident, that was sought to be brought within the tax net. [Para 72] For the aforesaid reasons, it was difficult to accept such a farfetched reasoning with no causal connection. [Para 73] Even when one looked into the matter from the standpoint of Double Taxation Avoidance Agreement (DTAA), the case of the assessee got a boost. The Organization of Economic Cooperation and Development (OECD) has framed a model of Double Taxation Avoidance Agreement (DTAA) entered into by India Article 12 of the said model DTAA contains a definition of 'royalty' which is in all material respects virtually the same as the definition of' royalty' contained in clause (iii) of (Explanation 2 to section 9(l)(x\). The assessee had relied upon the commentary issued by the OECD on the aforesaid model DTAA. [Para 74] The Tribunal had discarded the aforesaid commentary of the OECD only on the ground that it was not safe to rely upon t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....our of the assessee by the decision of the Tribunal in assessee's case in assessment year 2017-18. 11. Learned Departmental Representative, though agreed that the issue has been decided in favour of the assessee by the Tribunal in assessment year 2017-18, however, he relied upon the observations of the Assessing Officer and learned DRP. 12. We have considered rival submissions and perused materials on record. Undisputedly, both, the Assessing Officer and learned DRP have treated the disputed receipts as FTS by following the directions of learned DRP on such issue in assessee's case for assessment year 2017-18. It is observed, while deciding assessee's appeal for assessment year 2017-18, the Tribunal in the order referred to above has held as under : 34. Coming to the receipts from Disaster Recovery Playout Services being treated as FTS, we find that Article 12(4) of the DTAA defines FTS as "payments of any kind to any person in consideration for services of a managerial, technical or consultancy nature including provision of such services through technical or other personnel, if such services: (i) are ancillary and subsidiary to the application or enjoyment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 40. The disaster recovery playout service merely involves provision of uninterrupted availability of the playout service at a predetermined level. Therefore, receipts from disaster recovery playout services are not in the nature of FTS as envisaged under Article 12(4)(a) of the DTAA as they are not ancillary or subsidiary to disaster recovery uplinking and allied services. 41. We are of the considered view that service must be related to application or enjoyment of the right, property, or information for which a payment in the nature of royalty is received and predominant purpose of the arrangement under which payment of service fee is received must be application or enjoyment of the right, property, or information in respect of which the royalty is received. Thus, both conditions must be cumulatively satisfied for services to be considered as ancillary or subsidiary to the payment of royalty. 42. Therefore, in our considered view, receipts from disaster recovery playout services are not in the nature of FTS as they do not make available any technical knowledge, experience, skill, know-how, or process or consist of the development and transfer of any technic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in. Therefore, the most crucial factor which requires examination is, while rendering services, whether the assessee has made available any technical knowledge, experience, skill, knowhow or process in terms of section 12(4)(b). In our view, the material on record would not persuade one to conclude so. The true meaning of the aforesaid provision is, not only the payment is received for providing technical or managerial services, but, while doing so the service provider also makes available any technical knowledge, experience, skill, knowhow or process, etc. to the recipient of services, which enables the person acquiring such services to apply the technology contained therein independent of the service provider. In other words, the service recipient must be in a position to apply the technical knowledge, experience, skill, knowhow, etc. without requiring the permission or presence of the service provider. 28. In the facts of the present case, there is nothing on record to suggest that Atos India can use any technical knowledge, experience, skill, know-how or process, etc. independently on its own without requiring the involvement of the assessee. Therefore, in our consider....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ved that as per Article 5(3) of India-Singapore DTAA, a building site or construction, installation or assembly project, if continues for a period of more than 183 days in any fiscal year constitutes a PE. Similarly, as per Article 5(4) of India-Singapore DTAA, if a person carries out supervisory activities in connection with a building site or construction, installation or assembly projects being undertaken in another State for a period of more than 183 days in any fiscal year, it will constitute a PE. According to the Assessing Officer, the time limit provided in the DTAA is applicable from the start to the end of the project activities and not on the basis of presence of company's or sub-contractors' personnel during the entire duration. He observed, the assessee had carried out installation activities at two different sites of Accenture Solutions Pvt. Ltd. For the first activity, installation began on 14th June, 2017 and ended on 11th November, 2017. Whereas, for the second activity, installation began on 9th November, 2018 and ended on 2nd February, 2018. Thus, cumulatively, the activities of supervisory/installation work began on 14.06.2017 and ended on 02.02.2018, which work....
X X X X Extracts X X X X
X X X X Extracts X X X X
....olutions Pvt. Ltd.) requested the assessee for proposal to supply equipment in India. The client identifies the original equipment manufacturer (OEM) having the capability to provide the equipment. The assessee obtains quotes from the said OEM and shares the same with the client. Based on the approval of the client, the contract for supply of equipment is entered into between the assessee and the client and a consequent contract is entered into between the assessee and the OEM for supply of equipment. the entire process, no employee of the assessee or the OEM visits the project sites. 18. He submitted, once, the equipment reaches the assessee, they were transferred to the client and transported to India. Client is responsible for all custom clearance procedures once the goods reach India. He submitted, in case any of the equipments require installation, employees of the OEM visit the respective project sites to provide the services. However, during the entire exercise, no employee of the assessee assists or supervises the installation of the equipment. Thus, he submitted, the contract with Accenture Solutions Pvt. Ltd. is one of supply of equipments only and installation service....
X X X X Extracts X X X X
X X X X Extracts X X X X
....DDIT (2016) 68 taxmann.com 34 (Mumbai-Trib.) 20. Without prejudice, he submitted, the threshold period of 183 days for determination of PE has to be computed separately for each project and not cumulatively. For such proposition, he relied upon the following decisions: (i). Valentine Maritime (Gulf) LLC vs. ADIT (2011) 10 taxmann.com 210 (Mumbai-Trib.) (ii). Kreuz Subsea Pte Ltd. vs. DDIT (2015) 58 taxmann.com 371(Mumbai-Trib) (iii). Gujrat Pipavav Port Ltd. vs. ITO (2016) 67 taxmann.com 370 (Mumbai-Trib.) 21. Reverting back to the facts of the case, he submitted, the project at Bangaluru and Gurugram were in relation to distinct purchase orders and different assignments. The nature of equipment supplied under the two purchase orders are different. The nature and purpose of two projects were completely different from each other, despite commonality in customer and few sub-contractors. Therefore, the two projects must be treated separately, in which event, the threshold limit of 183 days would not be fulfilled. 22. Without prejudice, he submitted, the profits from whole operation, both supply of equipment and installation and commissioning service....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ices is one integral activity, the profits from both the activities has to be attributed to the PE, as the PE had a significant role to play both in supply of equipment and installation and commissioning services. Thus, he submitted, the addition made by the Assessing Officer and sustained by learned DRP must be upheld. 24. We have considered rival submissions and perused materials on record. Undisputedly, in the year under consideration, the assessee received two purchase orders from Accenture Solutions Pvt. Ltd. for its projects in Bangaluru and Gurugram in India. From the materials on record, it is observed that after receiving the purchase orders, the assessee entered in two separate contracts with the original equipment manufacturer (OEM) for supplying the equipment. As per the procedure followed, the assessee obtains quotation of the specific equipment from the OEM and shares the same with Accenture Solutions Pvt. Ltd. After the equipment is approved, the assessee undertakes the supply of equipment manufactured outside India. Undisputedly, in so far as the money received for supply of equipment is concerned, the assessee has claimed that manufacture and sale of the equipme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mental authorities have reckoned the period of 183 days from the date of raising of the first invoice for supply of equipment till the date of last invoice raised by the assessee both for Bangaluru project as well as Gurugram Project. The issue, which arises for consideration is whether the first invoice date for supply of equipment would tantamount to commencement of installation activity for construing the period of 183 days in terms of Article 5(3) and 5(4) of India- Singapore DTAA. It is a fact on record that the assessee had entered into two separate purchase orders with Accenture Solutions Pvt. Ltd. The purchase order relating to Gurugram project of Accenture Solutions Pvt. Ltd. was issued on 22.02.2017. This purchase order related to supply of equipment DDC5 Broadcast Infrabuild Unit. The second purchase order for Bangaluru project was issued on relating to supply of equipment for project system integration. It is axiomatic that once the purchase order is placed, the manufacturing process of the equipment as per specific requirement of Accenture Solutions Pvt. Ltd. would kick in. As is evident, the assessee itself is not the manufacturer of the equipment but has subcontracte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he installation and commissioning services were provided by the same sub-contractor or some of the personnel engaged in both the projects are common, it cannot be concluded that both the projects are one and single project. The departmental authorities have not brought any material on record to demonstrate such fact. On the contrary, the evidences brought on record by the assessee do indicate that they are different projects. In this context, we may observe, the Assessing Officer while interpreting Article 5(3) and 5(4) of the tax treaty, has observed that all project sites in India have to be treated as one for determination of installation and supervisory PE. To buttress his conclusion, the Assessing Officer has referred to India-Italy, India-Australia and India- USA DTAAs, where, treaty provisions explicitly provide that for determination of existence of PE, all projects in one contracting State have to be construed as single project unlike India-Netherlands DTAA where each site has to be seen as a separate project. The reasoning of the Assessing Officer is that in absence of such express provision like India-Netherlands DTAA in India-Singapore DTAA, all project sites have to be....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... nature, does not require specific adjudication. 32. In ground No. 15, the assessee has challenged imposition of penalty proceedings under section 270A of the Act. The issue raised, being premature at this stage, there is no need to adjudicate this ground. 33. In the result, appeal is partly allowed. ITA No. 1832/Del/2022 (A.Y. 2019-20): 34. Ground Nos. 1 & 2, being general grounds, do not require specific adjudication. 35. In ground Nos. 3 & 4, the assessee has challenged the taxability of receipts from provision of disaster recovery up-linking services, disaster recovery play-out services, down-linking and distribution services, space segment capacity services and digital satellite news gathering services as royalty income. 36. The issue raised in these grounds are identical to the issue raised in ground Nos. 3 & 4 of ITA No. 1831/Del/2022 decided in the earlier part of the order. Following our decision therein, we delete the addition made by the Assessing Officer. 37. In ground Nos. 5 to 7, the assessee has challenged the taxability of receipts from provision of disaster recovery up-linking services and disaster recovery play-out services as FTS income under....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 43. We have considered rival submissions and perused materials on record. Undisputedly, referring to the amended provisions of section 9(1)(vi) of the Act, the Assessing Officer has treated the receipts from internet bandwidth charges as equipment/process royalty. However, it is observed, no corresponding amendment in line with the amendment brought to section 9(1)(vi) of the Act has been made to Article 12(3) of India-Singapore DTAA. Therefore, in absence of any such amendment widening the scope of expression 'royalty' under the treaty provisions, the amendment made to section 9(1)(vi) of the Act cannot be automatically brought or imported to Article 12(3) of India-Singapore DTAA, as the treaty provisions have to be construed strictly in accordance with the language used in the provision. While coming to such view, we have found support from the ratio laid down in the decisions cited by learned Sr. Counsel for the assessee. Thus, for the aforesaid reasons, we hold that the receipts from internet bandwidth charges cannot be treated as royalty income under Article 12(3) of India-Singapore DTAA. Accordingly, we direct the Assessing Officer to delete the addition. 44. In ground ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....us in the earlier part of the order. Following our decision therein, we delete the addition made by the Assessing Officer. 53. In ground Nos. 6 to 9, the assessee has challenged the taxability of receipts from provision of disaster recovery up-linking services and disaster recovery play-out services as FTS income. 54. The issue raised in these grounds is identical to the issue raised in ground Nos. 5 to 7 of ITA No. 1831/Del/2022 decided by us in earlier part of the order. Following our decision therein, we delete the addition made by the Assessing Officer. 55. In ground No. 10, the assessee has challenged taxability of receipts from internet bandwidth charges as royalty income. 56. This issue is identical to the issue raised in ground No. 8 of ITA No. 1832/Del/2022 decided by us in earlier part of the order. Following our decision therein, we delete the addition. 57. In ground No. 11, the assessee has challenged the taxability of receipts from reimbursement of licence fee as royalty income. 58. Briefly, the facts are, in course of assessment proceedings, the Assessing Officer noticed that in the year under consideration, the assessee has received an amount of Rs.....