International Tax Update: India
Foreign Remittance: TDS u/s 195: Case Law Analysis 2015: Series 2
Some of the important case laws published in India during the year 2015 pertaining to TDS u/s 195 and/or taxability of foreign companies/non-resident entities in respect of source of income in India. Discussion and analysis pertain to relevance of judgement in future proceedings, subsequent developments, other relevant case laws on the same aspect, probable arguments etc.
1. News story subject to royalty: (Agence France Presse vs. ADIT [2015] 167 TTJ 149 (Delhi - Trib.))
The assessee an International News Agency was having its headquarters in France. AFP had been distributing its text news and photos connected with news in India through various Indian News agencies, viz., Press Trust of India and IANS. There were two categories of payments received by assessee from India one for transmission of news and the other for transmission of news photos. It provided daily reports of international events of interest which occurred in the various fields such as politics, sports, economic. AFP exercises a great degree of control and strictly regulates its news-content supplied by it to Indian news agencies and most of its information is proprietary-in-nature and copyrighted inasmuch as access to archived data, distribution rights, commercial rights, credit to AFP alongwith copyright symbol 'AFP©' or without copyright symbol 'AFP' (as may be determined by AFP in terms of its internal policy), which can be used except as per terms of AFP.
HELD, 'News' per se cannot be copyrighted, whereas a news item or news story would be copyrighted under section 13(1)(a) of Copyright Act. 'Photographs' as 'artistic works' are copyrighted items. Where assessee was providing a gamut of service covering three categories, namely, news item, news story, photographs or news without any split, and categories were interlinked, it should be construed as composite service possessing 'modicum of creativity' and copyright subsisted in news reports and photographs distributed/circulated by assessee. Payment to assessee would qualify as 'royalties' within meaning ascribed under paragraph 3 of Article 13 of DTAA between India and France.
1.1) Comment: The judgement has dealt with in detail the treatment of news item and photos as copyright works and amount received by the assessee are payments for sale of copyright on such works. However, there are few issues which are still to be argued:
1.1.a) Copyright and copyrighted article: There have been lot of judgements wherein it has been held that copyright is different from copyrighted article. And amount received from sale of copyrighted product/article/work (eg. Off the shelf software) is not royalties. The assessee in the instant case is providing a copyrighted/copyrightable article and not a copyright. The tribunal itself has suggested that the news stories provided by AFP are a work of art having a distinct feature and innate quality. Also, the tribunal has rightly pointed out that news agencies in India cannot alter the images or photographs as uploaded in the assessee's website except minor fading effect and resizing. Thus, what AFP is providing is a copyrighted article for use of Indian news agencies and not a copyright. Payment for any work which can be copyrighted cannot be termed as royalty.
1.1.b) Subscription fees or Distribution fees: Payment received by AFP is on account of subscription to its news website. Though subscriber can access the news published by AFP but the subscriber is not required to pay for specific news on the basis of distribution of news item or publication of news item in Indian newspapers or magazines. So, the subscriber is not paying for use of any copyright but for an item of news i.e. copyrighted article. Hence the amount can be considered as business profits as subscription money and not as royalty.
1.1.c) Royalty or professional services: Judgement has pointed out that news stories has unique and innate quality and can be considered as original literary works and hence copyright subsists in such works and royalty shall be applicable. Then, whether news stories reported by journalists/correspondents shall also be subject to treatment as royalty where the name of news correspondent is also mentioned in the news story. Also, whether Articles written by renowned public figures and provided to newspaper for publication shall also be subject to royalty or as professional fees.
1.1.d) Royalty or business income: Also, the judgement has pointed out that ‘AFP invests substantial amount of its capital in its personnel's, correspondent, editors' etc. and create its own unique quality in news reporting. This understanding could be explicated on the premise of two main points i.e. (a) the news story supplied by it cannot be altered by the Indian news agencies or other distributors and any change in the news reports can only be carried out by AFP itself; (b) the volume of news-stories supplied to each individual user is strictly regulated inasmuch as news-stories above a certain figure per day would cost more and depends upon the package obtained by a user. Also, news-reporting for special events such as Commonwealth Games, Olympics are carried out for special rates instead of ordinary/ regular rates since AFP has to incur costs by way of placing special correspondent i.e. skilled human capital to cover news reporting and mobilization costs for various resources/creation of necessary infrastructure in order to capture photographs during such mega events. In view of the discussion above, the instant case satisfies the elements of labour, skill and capital.’
Hence, it is the business of AFP to sell news to its subscribers. If at all there is element of copyright in the news, it is not justified to put the entire receipts of AFP as royalty income. As indicated in Section 80QQB, 15% of copyright literary work is taken as allowable royalty receipts under income tax act.
1.1.e) To Conclude, Income from Sale of any work which can be copyrighted cannot be characterised as royalty income. In the extreme case, only a portion of such receipts which pertain to brand value of seller/author may be treated as royalty income. Though the judgement is a detailed one and has deeply analysed copyright issues but still lot can be argued.
2.) Installation of machinery subject to TDS: (Shakti LPG Ltd. vs. ITO [2015] 229 Taxman 164 (Andhra Pradesh) )
Payment made to US firm for installation of machinery would be liable to deduction of tax at source there being no severality of sale and installation components and payee being not covered by section 195(1).
Amount was paid by assessee to, US firm in context of installation of a machinery of sophisticated technology in the year 1994-95. HELD, Assessee was not able to demonstrate that person or agency whom it paid amount was one that was described in the first part of sub-section (1) of Section 195 and thereby it was not under obligation to pay tax at all - Further, separate components of sale of machinery on one hand and installation of machinery on other hand being not mentioned in returns filed by assessee, Severality of two components could not be accepted. Hence, assessee was under obligation to effect deduction of tax at source.
2.1) Comments: The judgement has pointed out for deduction of TDS on payment for installation of machinery as assessee has not shown that it has made payment to non-resident. The order has shown as facts of the case: ‘The facts, in brief, are that the appellant is an assessee and is involved in the activity of filling the liquefied petroleum gas. As a part of its activity, it is said to have entered into a contract with M/s. Imodco Inc, a firm from USA to acquire some machinery and installation thereof in the premises of the factory/plant in the year 1994-95. A sum of US $ 1,00,000/- was paid as consideration.’
TDS provisions come into play only where the sum is chargeable to income tax act.
Though, under section 194C where the payment is made to a resident contractor for works carried out, TDS is deductible@ 2%. However, where works are carried out by non-resident contractor, TDS is deductible u/s 195 at appropriate rate, provided the amount is chargeable to income tax act.
In the instant case, since the payment pertains to installation of machinery, it shall be covered by Article 7-Business profits of DTAA between India and USA, the amount can be brought to tax in India only if the US company is having PE in India which is not clarified in the instant case.
Though it has been argued that section 195 is not applicable, and amount is liable to TDS but it is not mentioned under which provision of the income tax act, TDS shall be applicable. If the TDS is imposed u/s 194C, then payee should be resident which is also not clarified.
Tax cannot be imposed merely because assessee is not able to demonstrate that it is exempt from tax.
3. Timing of Taxability of Income: (New Holland Tractors (India) (P.) Ltd. vs. CIT [2015] 228 Taxman 66 (Delhi)): Where assessee, a subsidiary of UK based company, transferred its design engineering technology relating to manufacture of a particular brand of tractor to another Indian company for a period of three years, in view of fact that no service or know-how/technology was to be supplied during next three years, entire amount received under said agreement was taxable in relevant year of execution of agreement.
3.1) Comments: The decision rightly reflects the concept of accrual of income. The amount paid was not an advance relating unperformed obligation which had to be performed or undertaken. What the agreement postulated was that the ETL could use the technology already made available to them for a period of three year. This would not make the payment or deposit an advance. Neither was the payment inchoate nor made subject to final decision on appropriation. There was no stipulation to return or refund. A payment would be an advance or deposit if the said amount was repayable or the person receiving the deposit as advance had to perform and render services post deposit in future
4. Reimbursement of Expenses: (AMD Research & Development Center India (P.) Ltd. vs. DCIT [2015] 67 SOT 230 (Hyderabad - Trib.)(URO))
HELD, where assessee in course of rendering software development services to its parent company located in Canada, made payment of certain engineering services availed by parent company from another Indian company and made it available to assessee-company, payment so made was to be treated as 'fee for included services' liable to tax in India. The said payment cannot be held as reimbursement of expenses incurred by parent company as ATI Technologies, Canada(parent company) was also substantially benefitted from the services rendered by Soctronics India Private Limited(Indian contractor) by retaining the proprietary rights of any of the inventions, and contract work products resulting from the provision of service by Soctronics. Thus it was not the case of reimbursement of actual expense on cost basis simplicitor without any element of profit as claimed by the assessee.
4.1) Comment: Facts of the case being unique, it does not impact the current jurisprudence with reference to non-taxability of reimbursement of expenses. Tribunal has once again reiterated that even if services were procured from third party, reimbursement of the same shall be chargeable to tax only if there is an element of profit involved.
The judgement would have been different had, ATI technologies, Canada had not retained proprietary rights over services provided by third party vendor to Indian Subsidiary.
5 Installation and Training as FTS: (ITO vs. Bennet Coleman & Co. Ltd. [2015] 152 ITD 331 (Mumbai - Trib.)). The assessee company was engaged in the business of printing and publishing of newspapers, such as, Times of India, Economic Times, Nav Bharat Times etc. The assessee needed a sophisticated plant and machinery (commonly known as 'mail room equipment') that could collate various pages of the newspaper, which assisted in printing, picking and stacking them and packed the news papers for timely delivery within the shortest time to its readers. Assessee, purchased ‘mail room equipment’ from FA a Swiss company. The assessee, therefore, entered into two contracts with FA, of which one for the supply of the various components/units of the mail room equipment, and second for installation and commissioning of the components/units of the mail room equipment in the premises of the assessee and training of the staff of the company for operation of this equipment was to be supplied. Assessee made payment thereof without deduction of tax at source. Assessing Officer came to conclusion that payments in regard to installation and commissioning of the mail room equipment and training of the assessee's employees made by assessee were liable to withholding tax as FTS.
HELD, since consideration paid by assessee to Swiss company for installation/commissioning of complex 'mail room equipment' which involved proper alignment/positioning of various units and components to ensure optimum functioning, said activity would qualify as 'assembly' as defined under Explanation 2 to section 9(1)(vii) and hence payment thereof would not amount to FTS.
Also, held that The services rendered by FA, towards installation and commissioning of the mailroom equipment and training are 'Fees for Technical Services' as defined under the Act, the consideration paid towards these services are only taxable in Switzerland in the hands of FA, by virtue of the provisions of article 14 of the DTAA between India and the Swiss Confederation. It is seen that though, the Treaty between India and Swiss Confederation in article 12(4) defines 'Fees for Technical Services', as including the services rendered by FA, towards installation and commissioning and training, article 12(5) provides that services covered under article 14 of the Treaty will not qualify for 'Fees for Technical Services'. Article 14 of the Treaty, though, overrides article 12(4) while defining the term 'Professional Services', includes independent activities of engineers. Such independent engineering activities would not cover training given to the employees of the assessee. Though a training activity may be connected to an engineering concern, that by itself, would not constitute training, to be an engineering activity so as to fall within 'professional services' under article 14 of the Treaty. Hence, consideration paid for training assessee's employees was taxable in India as FTS.
5.1) Comment: The elaborate judgement has brought out the following issues of interest:
5.1.a) Consideration for services linked with sale of property: The tribunal held that,‘ in the contract for supply, it has been laid down that the warranty can be claimed by the assessee only if the mailroom equipment were installed and put into operation by Vendor Certified Personnel. In other words, the equipment could be installed by anybody, with the only requirement, that the person who installs the equipment, should be certified by the vendor, as qualified to install the same. This is not the same as saying that qualified personnel of the vendor should install the equipment as is only indicated in the bid document and not in the contract signed by the assessee. In the circumstances, the first contention of the assessee that the services rendered by FA, by way of installation, commissioning of the mailroom equipment and the training of the assessee's employees as inextricably and essentially linked to the sale of the mailroom equipment and hence not taxable separately as 'Fees for Technical Services', cannot be accepted’- The argument raised by the assessee was rightly rejected by tribunal. However, the argument even if accepted would not have helped the case as the India-Swiss DTAA does not exclude services that are essentially linked with sale of property unlike other DTAAs with countries like Australia which provides that Fees for technical services does not include payment “for services that are ancillary and subsidiary, and inextricably and essentially linked, to a sale of property”. Hence, in countries like Switzerland, Sweden, France etc. the argument that services are linked to sale of property and not FTS shall not be helpful.
5.1.b) Independent personal services does not require services by an individual: The argument of the department, that Article 14 applies only to individuals, is misconceived in the light of the wording in the Treaty between India and Swiss Confederation that refers to "residents of a contracting state" and hence it is not restricted to individuals as was held in Maharashtra State Electricity Board v. Dy. CIT [2009] 90 ITD 793 (Mum.). Other DTAAs where the judgement can be used to argue that Article 14-Independent personal services is applicable to non-individuals as well include: Austria, Bangladesh, Belarus, Brazil, China, Cyprus, Czech Republic, Hungary, Indonesia, Ireland, Israel, Italy, Jordon, Kazakhstan, Kenya, Libya, Malaysia, Mauritius, etc etc.
5.1.c) Installation can be Assembly: Another useful observation from the judgement is that it held installation of equipment as Assembly and eligible for exemption under Explanation 2 to section 9(1)(vii) which provides that “"fees for technical services" 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”. It is an excellent argument raised by the counsel for the assessee and should be used as ready reference in future as well.
6. Payment for hiring is not royalty: (CIT vs. Van Oord ACZ Equipment BV [2015] 273 CTR 548 (Madras)): Amount received by assessee-foreign company for hiring out dredgers to its Indian company would not be taxable in India as royalty, as Article 12 of India - Netherland DTAA does not include said payment within its ambit.
6.1) Comment: The decision has rightly highlighted the tax loophole in India-Netherland DTAA wherein the definition of royalty does not include “payment for use or right to use of commercial, industrial or scientific equipment’ Other countries with which renting shall not be taxable as royalty include: Belgium, Greece, Israel, and Sweden.
7. Capital Gains: A. Mohiuddin vs. ADIT [2015] 67 SOT 251 (Bangalore - Trib.) Where on date of purchase of house property from non-resident vendor, assessee was aware of fact that capital gain was not taxable in vendor's hands due to availability of deduction under section 54, he was not required to deduct tax at source while making payment of sales consideration.
7.1) Comment: The case is covered by the decision of the Hon'ble Supreme Court in the case of GE India Technology Cen. (P) Ltd. v. CIT [2010] 327 ITR 456/193 Taxman 234/7 taxmann.com 18 r.w. instruction No.2/2014 dated 26.02.2014 issued by the Board wherein it was held that the TDS in the payments required to be made u/s 195(1) ought to be deducted, if the element of income in such payment is involved.
8. Payment for Testing/certification: ITO vs. Denial Measurement Solutions (P.) Ltd. [2015] 67 SOT 76 (Ahmedabad - Trib.)(URO) Payment made by assessee, engaged in business of manufacturing ultrasonic meters, to a US company towards calibration and testing of equipment, could not be treated as, fee for technical services' due to non-Compliance with make available cause as the payee has only given the certificate/report of the calibration to the Assessee and certificate/report does not contain the process of how the testing or calibration was carried out by the payee.
8.1) Comment: Make Available Clause- the condition precedent for invoking the "make available" clause is that the services should enable the person acquiring the services to apply technology contained therein. Unless there is a transfer of technology involved in technical services the "make available" clause is not satisfied. ITO v. Veeda Clinical Research (P.) Ltd. [2013] 144 ITD 297 (Ahd. - Trib.). Other relevant judgements include:
8.1.a) Diamond Services International Ltd. Vs UOI [2008] 304 ITR 201 (Mum.): What the client receives is the report where the GIA uses its commercial or technical knowledge to give a report to the client. Illustrative example would be a lawyer giving advise to his client; a doctor giving his medical opinion; a laboratory submitting blood analysis report and the like. These cannot be said to be imparting of information by the person who possesses such information.
8.1.b) Joint Accreditation System of Australia In re: [2010] A.A.R. No. 838/2009: there is no transfer of any skills or technical knowledge or experience, or process or know-how to the CABs on account of grant of accreditation to those entities. The skills, expertise or know-how possessed by the applicant for the grant of accreditation certificate cannot be said to have been made available to the CAB who gets the accreditation.
8.1.c) Nqa Quality System Ltd. vs DCIT: [2005] 92 TTJ 946 (Delhi Bench): technology will be considered "made available" when the person acquiring the service is enabled to apply the technology. The fact that the provision of the service may require technical input by the person providing the service does not per se means that technical knowledge, skills, etc. are made available to the person purchasing the service. The nature of work carried out by the non- residents involves making assessment surveillance for the purpose of ISO Certification. This service cannot fall within the ambit of fees for technical services as defined in Article 13(4) of the Indo-UK Treaty.
9. Interest from Indian Branch: Credit Agricole Corporate & Investment Bank vs. ACIT [2015] 67 SOT 208 (Mumbai - Trib.)(URO) Interest paid by Indian branch to its head office/ overseas branches not taxable in India on principles of mutuality
9.1) Comment: However, the above judgement shall not hold good in respect of interest payments w.e.f. 1.4.2015 by Indian branch to foreign head office due to amendment in Finance Bill 2015 whereby interest paid by Indian branch to foreign head office has specifically been made chargeable to income tax in India. Concept of ‘Non-taxability of Income on grounds of mutuality/payment to self’ no longer holds validity after 1.4.2015 in respect of interest payment by Indian branch to foreign head office
10. Retainership Charges: Le Passage to India Tours & Travel (P.) Ltd. vs. DCIT [2015] 54 taxmann.com 138 (Delhi - Trib.): The assessee was engaged in the business of organizing tours and travel arrangements for foreign tourists coming to India. In order to promote its business in foreign countries the assessee had appointed agents in various countries to market its services and in lieu thereof, representation charges/retainership fee and commission was paid to them. HELD, Retainership charges paid by assessee to overseas non-resident agents to promote its business in foreign countries would not fall within meaning of 'Fee for technical services' under section 9(1)(vii)
10.1) Comment: In the instant case, AO has argued that remuneration for nonresident agents was fixed and was not depending upon business procured by them. Therefore, these services provided by overseas non-resident agents was in the form of managerial services who were managing the offices of assessee and therefore the provisions of such services were covered in the fee for technical services as defined in Section 9(i)(vii) of the Act. However, the court rightly concluded that the agreements demonstrate that assessee was to pay commission and retention charges for advancement of business of the assessee and hence not liable as FTS.
In the case of DIT (International Taxation v. Panalfa Autoelektrik Ltd. [2014] 49 taxmann.com 412 (Delhi) decided by Hon'ble Delhi High Court, the Hon'ble court had explained the meaning of the words managerial, technical and consultancy as mentioned in Section 9(i)(vii) of the Act and had held that sales and marketing services rendered by an overseas commission agent do not fall within the meaning of technical services as envisaged by Section 9(i)(vii).
There have been plethora of judgements wherein hon’ble tribunals and courts have held that sales and marketing expenses and commission paid to Foreign agents is not liable for TDS u/s 195.
I Hope the article will help you in your professional endeavours.
(Author can be reached at ca.guptarohit@gmail.com for any queries)
Thanks and best regards,
CA. Rohit Gupta
B.Com, FCA, LLB,
CIA, DISA, CertIFRS
Certificate in International Taxation
New Delhi-110063, India
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