TaxTMI 
TaxTMI 
2025 (6) TMI 104
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....hment ('PE') of the Appellant in India under Article 5(4) of the India -Canada Double Taxation Avoidance Agreement ('tax treaty) and accordingly, taxing the revenues of Rs. 5,90,20,920/- received by the Appellant on account of provision of distance learning courses as being in the nature of business profits' under Article 7 of the India-Canada tax treaty b. Erred in not following the order of the Hon'ble Tribunal in Appellant's own case for AY 2012-13, wherein, it has been held that the ATCs do not constitute a DAPE of the Appellant in India and the income from provision of distance learning courses is not taxable as per the provisions of the India-Canada tax treaty. c. Without prejudice to the above, even assuming (without admitting) that the Appellant has a dependent agent PE in India, erred in: i. attributing 40% of the gross receipts of the Appellant from the ATCs, on account of provision of distance learning courses, as income attributable to the alleged dependent agent PE in India, and ii. estimating the profits at 100% of the gross receipts attributed to the dependent agent PE of the Appellant on account of provision of distance learning c....
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....ithout accepting the contention of the Appellant that the ICH services are provided by the Appellant outside India and are independent and separate from the activities provided by IATA India branch. c. Erred in taxing the receipts from e-services data processing charges as 'business profits' under Article 7 of the India - Canada tax treaty, by attributing such receipts to IATA India branch of the Appellant in India, without accepting the contention of the Appellant that such activities/services are not provided by IATA India branch. d. Without prejudice to the grounds 'a' to 'c' above, even assuming (without admitting) that income and profit should be attributed to the IATA India branch, erred in not accepting the contention of the Appellant that as the IATA India branch qualifies as a mutual association, which has also been accepted by the Hon'ble DRP, the 'joining and annual fees received from airlines, agents and strategic partners', fees from the provision of ICH facility and e-services data processing charges would not be taxable in India having regard to the principles of mutuality under the Act. Without prejudice to the above grou....
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....ed several grounds of appeal, which are discussed below: 4. Ground No. 1 - Provisions of distance learning course (addition of Rs. 5,90,20,920/-). 4.1 At the outset, Ld. AR has submitted that the issue is coverd in favour of the assessee by earlier decisions of the coordinate benches. However, the same has not been followed by the Ld. AO. Brief facts in this regard are summarised in the submissions made by Ld. AR as under: "IATA Canada allows students to avail of various distance learning courses such as IATA Proprietary Training Programs, the International Aviation Training Program, the International Cargo Agent Training Program, the International Travel and Tourism Training Program, etc. These courses are available to students who aspire to have a career in the aviation industry. The details of such distance learning courses can be obtained from the website of IATA Canada. The students who are interested in undertaking any of the distance learning courses can register/ enrol directly with IATA Canada or with an authorized Training Centre ('ATC'). For the provision of the distance learning courses, IATA Canada receives enrolment fees from students/ATCs. Such fees....
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.... for AY 2012-13 wherein it has been held that the ATCs are independent entities and not dependent agents of the assessee. Relevant portion of the order of coordinate bench in ITA No. 587 & 964/Mum/2016, wherein the issue has been examined in detail, is reproduced below: 9. We have heard at length the authorised representatives for both the parties in context of the issue pertaining to treating of the ATCs as the DAPE of the assessee, and attribution of 40% of the revenue generated from sale of the distance learning courses as the business income of the assessee liable to be taxed in India as per Article 7 of the India-Canada tax treaty. Also, we have perused the orders of the lower authorities as well as the material available on record, and also the judicial pronouncements pressed into service by the respective parties. Before proceeding any further, we may herein observe, that though the A.O vide his draft assessment order passed u/s 143(3) r.w.s 144C(1), dated 27.03.2015 had attributed the entire revenue of USD 2,390,825/- i.e Rs. 12,12,38,736/- from provision of distance learning courses as the income of the ATCs, but the DRP had scaled down the attribution of such Income to ....
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....lf-designed courses, courses designed by other third parties, and also the courses designed by the assessee viz. IATA Canada to its students. In fact, the Id. A.R in order to drive home his claim that the ATCs were not exclusively into providing of courses designed by the assessee and were providing a host of other self-designed/third party courses, had taken us through Page 65-67 of the APB, which revealed the multiple educational programs offered by one of the ATC viz. Srinivassa Sinai Dempo College of Commerce and Economics. On a perusal of the aforesaid sample screenshots, we find that Srinivassa Sinai Dempo College of Commerce and Economics was providing multiple courses, viz. Bachelor of Commerce, Bachelor of Business Administration, Master of Commerce, M.A (Tourism and Heritage) Management, PGDBA-Event Management, Accounting for Small Businesses, Certificate Course in Tour Management, IATA Course etc. Similar is the position in the case of another ATC, viz. Kuoni Academy, which as can be gathered from the screen shots, Page 69-70, of 'APB', was also providing multiple courses, viz. International Master in Business Administration & Tourism Management, Kuoni Certified ....
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....dge the claim of the counsel for the assessee that the ATCs were independent third party organisations providing training of their various self-designed courses, courses designed by other third parties, and also the courses designed by the assessee viz. IATA Canada, and were not exclusively into providing of courses designed by the assessee viz. IATA, Canada. In fact, no observation to the said effect is also discernible from the orders of the lower authorities. On the contrary, the DRP at Page 53 Para 5.3.2(i), had observed, that the ATCs were independent organisations doing their business of providing training to the students to enable them to work in aviation, travel and tourism industry. But then, after so observing, the DRP was of the view that as the ATCs for rendering the training courses were entirely dependant on the various manuals and study material provided by the assessee, and the distance learning courses of the assessee constituted the backbone of such training and the overall operations of the ATCs, they were thus rightly held by the A.O as DAPE of the assessee. Apart from that, the DRP in order to fortify his aforesaid conviction had drawn support from the fact tha....
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....er or not the ATCs could be held to be the DAPE of the assessee viz. IATA, Canada. At the outset, we may herein observe that in order to treat the ATCS as a DAPE of the assessee the provisions of Article 5(5) of the India-Canada tax treaty needs to be satisfied prior to evaluating the provisions of Article 5(4) of the said treaty. As per Article 5(5) of the India-Canada tax treaty, an enterprise of a contracting state shall not be deemed to have a PE in the other Contracting state merely because it carries on business in that other state through a broker, general commission agent, or any other agent of an independent status, subject to the condition that such person is acting in the ordinary course of its business. But then, as per the rider provided in Article 5(5) of the tax treaty, the agent would be divested of its independent status, if it cumulatively satisfied the dual conditions therein provided viz. (i). its activities are devoted wholly or almost wholly on behalf of that enterprise; AND (ii). the transactions inter se the agent and the enterprise are not made under arm's length conditions. For the sake of clarity, we herein reproduce Article 5(5) of the India-Canada t....
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....ent of an independent status is acting in the ordinary course of its business. As regards the rider therein provided in Article 5(5) of the India-Canada tax treaty, the same as observed by us hereinabove would require cumulative satisfaction of for the purpose of divesting the agent of its status as that of of being an independent agent viz. (i). the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise; AND (ii). the transactions between the agent and the enterprise are not made under arm's length conditions. In the case before us the DRP itself had observed that ATCs are independent organisations doing their business of providing training to the students to enable them to work in aviation, travel and tourism industry. As such, the fact that the ATCs are independent agents, acting in the ordinary course of their business had been admitted by the DRP, and the said observation has not been assailed by the revenue before us. Without prejudice to the fact that the activities of the ATCs were not devoted wholly or almost wholly on behalf of the assessee, viz. IATA, Canada, in the absence of any observation by the lower authorities that the tra....
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....nditions is fulfilled. It is so for the reason that Article 5(6) provides that even when an agent is wholly or almost wholly dependent on the principal, I.e. foreign enterprise, "he will not be considered an agent of an independent status within the meaning of this paragraph if it is shown that the transactions between the agent and the enterprise were not made under at arms length conditions" (emphasis by underlining supplied by us). In other words, as long as it is not shown that the transactions between the agent and the principal are not made under arm's length conditions, the agent is treated to be an independent agent. The implication of the agent being treated as an independent agent is that the provisions of dependent agent PE, as set out in Article 5(5), can never come into play in the cases in which the business is carried out by the foreign enterprise through an independent agent, because Article 5(5), which overrides the provisions of Article 5(1) and 5(2), specifically provides that "where a person other than an agent of an independent status to whom paragraph 6 applies ( emphasis by underlining supplied by us) is acting in one of the Contracting States on behalf o....
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....e principal and agent are not under arm's length conditions. Once this onus is not discharged by the revenue authorities at any of these stages, and in accordance with the law laid down by Special Bench decision in the case of Motorola Inc, we have to hold that the assessee did not have any PE in India. We are not inclined to grant a fresh inning to the Assessing Officer for making roving and fishing enquiries on the aspect of transactions not having been done in arm's length conditions particularly as there is nothing on record to even remotely suggest a prima facie case in this regard. A negative finding in this regard is a sine qua non for making out a case for existence of DAPE in the context of Indo French DTAA, and this finding being absent, we have to hold that the stand of the Assessing Officer, with regard to existence of PE, is not sustainable in law. As regards reference to Hon'ble Visakhapatnam Port Trust's case, the observations made therein do not apply in this context as it was not dealing with Dependent Agency Permanent Establishment (DAPE) which is now the case before us. As we have seen earlier, the provisions of DAPE override the provisions regard....
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....nue is a sine qua non for existence of DAPE. Το this extent, our decision is confined to the facts of this case for the particular assessment year before us". 10. In the absence of any distinguishing feature brought on record by the Revenue, we respectfully following the order of the Tribunal in assessee's own case (supra) hold that the assessee has no PE in India and, hence, not liable to tax and accordingly the grounds taken by the assessee are allowed." On further appeal by the revenue, the Hon'ble High Court of Bombay in its order passed in the case of DIT(International Taxation) Vs. Delmas France (2015) 232 Taxman 401 (Bom) had affirmed the order of the Tribunal and dismissed the appeal of the revenue, observing as under: "9) There is substance in the contention of Mr. Irani that the departmental representative appeared before the Tribunal and fairly stated that the matter should be examined in the light of applicability of Article 5(5) read with Article 5(6). The combined effect of this fair suggestion and concession is that firstly notwithstanding anything contained in Article 5(1) and (2) whether a person other than the agent of Indian State to ....
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....ur mind, the Tribunal was under no obligation to remand the matter back to the Assessing Officer The Tribunal has rightly observed that even during the course of the proceedings before it, no material was placed on record, which would prima facie demonstrate or even indicate that the transactions between the principal namely the Assessee and the agent are not under at arm's length conditions. Once this onus is not discharged by the Revenue and the Tribunal has confined its observations and conclusions to the facts and circumstances peculiar to the Assessee's case and for the particular assessment year, then, we agree with Mr. Irani that this Appeal does not raise any substantial question of law. However, we do not find any basis for the submission made by Mr. Singh that the Tribunal should have examined the matter in the light of applicability of Article 5(1)(2) of the DTAA. The departmental representative has given up that because there was no finding rendered by the Assessing Officer. The Tribunal as rightly held was not obliged to go into the same. Even on this ground, the Tribunal's order cannot be faulted." At this stage, we may herein observe that as in the pre....
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....rm's length, we thus on a similar footing conclude that as per a conjoint reading of Article 5(4) and Article 5(5) of the India-Canada tax treaty, the ATCs being an independent agent within the meaning of Article 5(5) of the India-Canada tax treaty could not have been held to be the DAPE of the assessee in India. 12. As we have concluded hereinabove that the ATCs are the agent's of an independent status of the assessee viz. IATA, Canada, within the meaning of Article 5(5) of the India-Canada tax treaty, therefore, there remains no occasion for us to deal with the contentions advanced by the Id. A.R that the ATCs do not satisfy the conditions laid down for dependant agent PE under Article 5(4) of the tax treaty, which aspect is thus left open. 13. In the backdrop of our aforesaid observations, we herein conclude that the ATCs are the agents of independent status of the assessee viz. IATA, Canada, within the meaning of Article 5(5) of the India-Canada tax treaty. Accordingly, without adverting to the other contentions advanced by the Id. A.R in order to impress upon us that the ATCs cannot be held to be the DAPE of the assessee viz. IATA, Canada, we vacate the view take....
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.... paragraph 1 or Article 8 from activities described in paragraph 3(c) or 4 of Article 8." As observed by us hereinabove, the assessee pursuant to the request from the student's/ATCs despatches the course material i.e the learning kit in the form of books or CD's directly to the students or ATCs. Although, the course material providing knowledge, information and training about the aviation and travel and tourism industry in general is sold to the students/ATCs, but no 'use' or 'right to use' any copyright in relation to such study material is granted to them. In fact, the student's/ATCs do not have any right to reproduce/sell the contents of the study material in any form or media. As the course material providing knowledge, information and training about the aviation and tourism industry in general is merely a sale of book/CD, which does not involve transfer of intellectual property, and also does not contain any undivulged technical information which is not available in the public domain and/or know-how, therefore, it falls outside the scope of the term 'information concerning technical, industrial, commercial or scientific experience' under Article ....
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....ue attributed by the A.O pursuant to the directions of the DRP is dismissed as having been rendered as infructuous." 4.4. Thus, the above decision of the coordinate bench has thoroughly examined all aspects of the issue before allowing the appeal on this issue. For AYs 2011-12, 2014-15 and 2016-17 also, the coordinate benches had held that the income of the assessee from the provision of distance learning courses is not taxable in India, after placing reliance on the decision of the Hon'ble Apex Court in the case of Engineering Analysis Centre of Excellence Pvt. Ltd. (2021) 125 taxmann.com 42 (SC). 4.5 Respectfully following the above decisions of the coordinate benches, after noting that there is no change in the facts and circumstances in this year, we hold that the addition made by the Ld. AO, on the direction of Ld. DRP, on account of the provision of distance learning courses is not justified and is, therefore, deleted. 4.6 The assessee's appeal on this ground is, accordingly, allowed. 5. Ground No. 3: Sale of physical publications (Rs. 5,90,20,920/-) 5.1 Brief facts relating to the issue as explained by Ld. AR are as under: "IATA Canada has developed annual physical p....
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....e India-Canada tax treaty. On a perusal of the orders of the lower authorities, we find, that the assessee had came up with annual physical publications known as "Dangerous Goods Regulations Manual" ('DGR' manuals), which provided information inter-alia pertaining to handling of shipment of dangerous goods. These publications could be purchased online by the airlines or any other customer who was involved in the business of transportation of cargo. The DGR manuals published by the assessee was based on the "Technical Instructions for the Safe Transport of Dangerous Goods by Air", as were developed by the International Civil Aviation Organization (hereinafter referred to as "ICAO"), a United Nations agency for international air transport. The aforesaid fact is substantiated on a perusal of the Page 1-10 of the 'additional evidence' filed by the assessee before us. As observed by us hereinabove, the assessee had filed by way of additional evidence viz. (i). the relevant extracts of DGR manual sold by the assessee to its customers; and (ii). the relevant extracts of the technical instructions published by International Civil Aviation Organisation, which instructions....
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....g of Article 12(3) of the India-Canada tax treaty. 16. Aggrieved, the assessee has assailed the treating of the sale consideration of DGR manuals/publications as 'royalty' by the A.O/DRP. We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them. As observed by us hereinabove, the DGR manuals published by the assessee were a compilation of the Instructions on Dangerous Goods developed by ICAO, which in a comprehensive manner provided a user friendly compilation of instructions for safe transport of goods as laid down by ICAO. In the backdrop of the aforesaid facts, we find substance in the claim of the Id. A.R that the sale of DGR manuals was a simplicitor sale of a manual/book and did not involve any transfer of intellectual property. As the DGR manuals were a comprehensive and a user friendly compilation of instructions for safe transport of dangerous goods as laid down by ICAO, which did not contain any such undivulged technical information that was not available in the public domain, and/or know-how, therefore, the same....
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....ng its own methodology; * Further, the information concerning any industrial, commercial or scientific experience (i.e., know-how) generally implies undivulged technical information in the areas of industry, commerce or science, which however, was not so insofar the information published in the DGR manuals was concerned. Accordingly, on the basis of our aforesaid observations, we are of a strong conviction that the consideration received by the assessee on sale of DGR manuals cannot be brought within the realm of the definition of 'royalty' as provided in Article 12(3) of the India-Canada tax treaty. Our aforesaid view is fortified by the judgment of the Hon'ble High Court of Madhya Pradesh in the case of CIT Vs. HEG Ltd. (2003) 263 ITR 230 (MP). In the said case, it was observed by the Hon'ble High Court that it is not any information concerning the industrial or commercial venture that could earn the status as that of royalty, as some expertise or skill in providing of such information would be required. In this regard, it was observed by the High Court, as under: That apart we have already indicated that every information would not have in the status of ....
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....by IATA Canada from outside India and the consideration for rendering such services was also received directly in a bank account outside India. The Hon'ble Mumbai Tribunal in IATA Canada's own case for AY 2012-13 held that revenue received from provision of advertising space is not taxable as 'royalty' as per Article 12(3) of the India Canada 6.2 Ld. DR while placing strong reliance on the order of Ld. AO, has not controverted the claim of the Ld. AR that the issue is a recurring one and is covered by the orders of the coordinate benches in earlier years. 6.3 We have heard the rival submissions and perused the material placed before us. We find that this issue also stands covered in favour of the assessee vide the order of the coordinate bench for AY 2012-13. Relevant portion of the order is reproduced below: "18. We shall now advert to the claim of the assessee that the A.O/DRP had erred in taxing the receipts from provision of advertising space by the assessee on its website and publications as 'royalty' income within the meaning of Article 12(3) of the India-Canada tax treaty, for the reason, that by so advertising the customers use the logo, bran....
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.... by obtaining an advertising space in the website or publications/manuals of the assessee in no way get vested with any right to commercially exploit the brand or logo of the assessee, therefore, the consideration therein received by the assessee for providing such advertising space would fall beyond the meaning of the term 'royalty' as defined in Article 12(3) of the India-Canada tax treaty. Our aforesaid view that consideration received by an assessee for providing advertising space cannot be held as 'royalty' in its hands is fortified by the order of the ITAT, Mumbai in the case of Yahoo India (P) Ltd. Vs. DCIT (2011) 140 TTJ 195 (Mum). In the said case, it was observed by the Tribunal that the payment made by the assessee to a foreign company for the services rendered by it for uploading and display of the banner advertisement on its portal was in the nature of business profit and not royalty. It was held by the Tribunal as under: 8. As already noted by us, the payment made by assessee in the present case to Yahoo Holdings (Hong Kong) Ltd. was for services rendered for uploading and display of the banner advertisement of the Department of Tourism of India on ....
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.... In the said case, it was observed by the tribunal that the amount paid by the assessee to M/s. Google Ireland Ltd. for the services rendered for uploading and display of banner advertisement on its portal was in the nature of business profit on which no tax was deductible at source since the same was not chargeable to tax in India in the absence of any PE. Accordingly, on the basis of our aforesaid observations we are unable to persuade ourselves to subscribe to the characterisation of the consideration received by the assessee for providing advertising space to its customers, as royalty, by the A.O/DRP. As such, the view taken by the lower authorities wherein they had taxed the ve receipts from provision of advertising space as 'royalty' income in the hands of the assessee is vacated. The Ground of appeal No. 5 is allowed in terms of our aforesaid observations." 6.4 In view of the above decisions and after noting that there is no change in facts and circumstances during the year, we hold that the addition made by the Ld. AO on account of the provision of advertising space is not justified and, is therefore deleted. 6.5 This ground is also allowed. 7. Ground No. 5: Dat....
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....n shared by the assessee are copyrighted information and therefore the amount received towards data base access facility should be treated as Royalty to be taxed in India. 16. The Id AR submitted that the assessee through data base access is facilitating the access to otherwise publicly available information in one place to the Airlines, customers etc. The Id AR further submitted that by providing the data access the assessee is not imparting any information concerning the technical, industrial, commercial or scientific experience or "use" or the "right to use" the copy right of literary, artistic or scientific work and therefore does not fall within the definition of Royalty as provided in Article 12(3). The Id AR also submitted that the data base as is similar to the sale DGR manual/publications and therefore the decision of the coordinate bench with regard to sale of publications is equally applicable to the data base access also. 17. The ld DR on the other hand relied on the orders of the lower authorities. 18. We heard the parties and perused the material on record. From the perusal of facts, we notice that the data base of the assessee comprises of details like rate ....
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....India and the fees in respect of the said services are also received by IATA Canada directly outside India." 8.2 For the issue of membership fees Ld. AR submitted the submissions as under: "IATA Canada is a corporation incorporated under the Special Act of the Parliament of Canada. It is a non-profit organisation whose purpose, objects and aims are to promote safe, regular and economical air transport for the benefits of the people of the world. Further, to provide means for collaboration among the air transport enterprises engaged directly or indirectly in international air transport services. IATA Canada has been established to serve the needs of its members, as also, to lead and represent the industry in which such members operate. In the event of dissolution of IATA Canada, the Articles of Association (Article XXIV) provide that its net remaining assets would be disbursed to a similar organization as IATA i.e., the United Nations. For the purposes of becoming a member of IATA Canada, airlines pay the necessary joining fees and subsequent annual membership fees. Further, IATA Canada also receives joining and annual membership fees from various Strategic Partners who fo....
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....ation, and have perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements that have been pressed into service by them. As is discernible from the orders of the lower authorities, the assessee was given permission by the RBI to open a branch office in India, vide its order dated 25.11.1995, under Sec. 29 of the Foreign Exchange Regulation Act, 1973, for conducting non-commercial activities on no profit basis. We find that though it was the claim of the assessee that as per the approval of the RBI the IATA-India branch was not permitted to undertake any activity apart from the BSP services, but the DRP taking cognizance of the financial statements of the IATA-India branch, and also observing that RBI had never conducted any enquiry into the affairs of the assessee, declined to accept the said claim of the assessee. As regards the claim of the assessee that though IATA-India branch constituted a PE of the assessee in India as per Article 5(2)(b) of the India-Canada tax treaty, but then, as the ICH services were provided directly outside India, and the fees in respect of the said services was also received by the assessee i....
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....iate -o the role played by the PE in the transaction from which revenue as been generated. We are unable to subscribe to the manner in which the A.O/DRP had summarily rejected the claim of the assessee that as the ICH services were provided by the assessee, viz. IATA, Canada directly outside India, and the fees in respect of the said services was also received by the assessee in its bank account maintained outside India, therefore, the revenue pertaining to the said ICH services could not have been attributed to the IATA-India branch. In our considered view, the matter in all fairness requires to be restored to the file of the A.O. The A.O shall in the course of the 'set aside' proceedings verify the veracity of the claim of the assessee that the ICH services were provided by assessee, viz. IATA, Canada directly outside India. In case, the claim of the assessee is found to be in order, then the addition of fees received from providing ICH services made in its hands would stand vacated. Needless to say, the assessee shall be afforded a reasonable opportunity of being heard during the course of the 'set aside' proceedings and shall remain at a liberty to substantiate ....
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....dinate benches in earlier years. He has however strongly relied on the order of Ld. DRP and submitted that the addition made by the Ld. AR deserves to be upheld as the department has not accepted the order of the coordinate bench. 10.3 We have heard the rival submissions and perused the material placed before us. We find that this issue also stands covered in favour of the assessee vide the common order (supra) for AY 2011-12, 2014-16 and 2016-17 of the coordinate bench, Relevant portion of the order is reproduced below: "28. We heard the parties and perused the material on record. We notice that addition is made on the similar grounds that the principle of mutuality is not applicable for the charges for provision of Data Processing. We further notice that the AO/DRP have relied on their own order of AY 2012-13 in this regard. On perusal of nature of charges, we are of the view that Data Processing charges are received towards services to airlines and agents using iiNet and weblink and therefore are similar to ICH facility fees. We have already held that the ICH facility fees is not taxable in India for the reason that the principle of mutuality is applicable as has been held by....