2013-VIL-979-ITAT-DEL
Equivalent Citation: [2013] 22 ITR 224
Income Tax Appellate Tribunal DELHI
ITA No. 3883/Del/2009
Date: 24.01.2013
ROMER LABS SINGAPORE PTE. LTD
Vs
ASSISTANT DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION)
BENCH
Order
JUDGMENT
The order of the Bench was delivered by B. C. Meena (Accountant Member).-This appeal filed by the assessee emanates from the order of the Commissioner of Income-tax (Appeals)- XXIX, New Delhi, dated June 16, 2009.
The grounds of appeal taken by the assessee read as under:
"1. That on the facts and in the circumstances of the case and in law, the orders passed by the Assessing Officer ('AO') and the learned Commissioner of Income-tax (Appeals)-XXIX ('CIT(A)') are bad in law and void ab initio.
2. That on the facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) erred in affirming the total income of the appellant at Rs. 28,76,271 as against the nil income returned by the appellant.
3. That, on the facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has grossly erred in concluding that services provided by the appellant qualify as 'fees for technical services' under article 12 paragraph (4) sub-clause (c) of the Double Taxation Avoidance Agreement entered between India and Singapore and as such, these payments are liable to taxation in India.
4. That, on the facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has grossly erred in concluding that testing services provided by the appellant consist of development and transfer of a technical plan to its Indian customers.
5. That on the facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) has grossly erred in concluding that testing services provided by the appellant qualify as 'fees for technical services' under Indo-Singapore Double Taxation Avoidance Agreement on the basis of judgment of the jurisdictional Tribunal in the case of SNC-Lavalin International Inc. v. Deputy DIT [2008] 26 SOT 155 (Delhi) without appreciating that the aforesaid judicial precedent was delivered in the context of India-Canada Double Taxation Avoidance Agreement whose clause of 'fees for technical services' is different from that of the Indo-Singapore Double Taxation Avoidance Agreement.
6. That, on facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) erred in upholding taxability of payments received by the appellant for services rendered outside India as per the Supreme Court's judgment in the case of Ishikawajima-harima Heavy Industries Ltd. v. DIT [2007] 288 ITR 408 (SC).
7. That, on facts and circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) erred in upholding levy of interest under sections 234A, 234B and 234C of the Income- tax Act, 1961."
The only issue involved in these grounds is regarding taxability of Rs. 28,76,271 which the assessee received for services provided to the Indian company. The Revenue authorities treated this amount as "fees for technical services" under article 12(4) of the Double Taxation Avoidance Agreement (hereinafter referred to as the DTAA) entered between India and Singapore. The Revenue authorities held that testing services provided by assessee consisted of development and transfer of a technical plan to its Indian customers.
The brief facts of the case are that the return of income was filed declaring income at nil on October 29, 2005. The same was processed under section 143(1). The assessment under section 143(3) was finalised on December 27, 2007. The Assessing Officer made an assessment where it is held that the assessee has made available technical knowledge, skill or know-how to Indian customer and as such, the payments made to it were to the nature of fee for technical services as defined under article 12(4) of the Double Taxation Avoidance Agreement between India and Singapore. The assessee is a resident of Singapore and entitled for the benefit of tax treaty between India and Singapore. The assessee-company is incorporated under the laws of Singapore. It is engaged in the business of rendering services relating to testing solutions, sample analyses and analytical testing of food and feed samples. During the year under consideration, the assessee provided services to the Indian companies, namely, Effem India P. Ltd. (now known as Mars International India P. Ltd.) for testing of dog food and similar products. The basic intent of test was to check the mycotoxin level and whether the same is within permissible limit or not. Mycotoxins are fungal presence in the food which can contaminate it and make food hazardous for use. For testing purposes, Effem India P. Ltd. sent samples to the laboratory of the appellant located in Singapore. After testing, the test reports are sent to Effem India P. Ltd. located in India and the assessee received service fee for the same. The assessee claims that these receipts were its business income. The assessee is not having any person/permanent establishment in India. This income is not taxable in India. While pleading on behalf of the assessee, the learned authorised representative submitted that the payments received by the assessee are not taxable as fees for technical services within the meaning of article 12(4) of the Indo-Singapore tax treaty. The learned authorised representative also submitted that the prerequisite of applying article 12(4)(b)(c) of tax treaty is that the services should be provided in a manner to make available technical knowledge to the recipient of services which enable the person acquiring the services to apply the technology contained therein. The learned authorised representative also submitted that in the facts of the assessee's case, the Effem India receives test reports but it does not acquire any technical knowledge from the appellant which can enable it to apply the technology so that it can produce test report independent of the services of the appellant. The learned authorised representative also submitted that legal position has been upheld in number of cases and he relied on the following decisions :
(i) Raymond Ltd. v. Deputy CIT [2003] 86 ITD 791 (Mum) ;
(ii) Anapharm Inc. In re [2008] 305 ITR 394 (AAR) ;
(iii) ITO (International Taxation) v. De Beers India Minerals P. Ltd. [2008] 297 ITR (AT) 176 (Bang) ;
(iv) Diamond Services International P. Ltd. v. Union of India [2008] 304 ITR 201 (Bom) ;
(v) NQA Quality Systems Registrar Ltd. v. Deputy CIT [2005] 92 TTJ (Delhi) 946 ;
(vi) Mahindra and Mahindra Ltd. v. Deputy CIT [2009] 313 ITR (AT) 263 (Mum);
(vii) Asst. CIT v. Paradigm Geophysical Pty. Ltd. [2010] 1 ITR (Trib) 178 (Delhi); and
(ix) DIT v. Guy Carpenter and Co. Ltd. [2012] 346 ITR 504 (Delhi).
The learned authorised representative also submitted that the definition of the royalty under the Indo-Singapore tax treaty is at variance from the definition of fees for technical services as per the Indian Income-tax Act, 1961 and definition of fee for technical services under the Indo-France tax treaty and also definition of royalty under the Indo-Canada and the Indo U. S. A. tax treaty. For this purpose, the learned authorised representative submitted a chart which is reproduced as under:
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Definition of fees for technical services as per Income-tax Act, 1961 |
Definition of royalty under Indo-France
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Definition of royalty under India-Canada, Indo-U.S.A. and |
Definition of royalty under Indo-Singapore tax treaty |
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For the purposes of this clause, “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 or consideration which would be income of the recipient chargeable under the head “Salaries”. |
(4). The term “fees for technical services” as used in this article means payments of any kind to any person, other than payments to an employee of the per son making the payments and to any individual for independent personal services mentioned in article 15, in consideration for services of a managerial, technical or consultancy nature.
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(4). For purposes of this article, “fees for included services” means payments of any kind to any person in consideration for the rendering of any technical or con sultancy services (including through the provision of ser-vices of technical or other personnel) if such services : (a) . . . (b) make available technical knowledge, experience, skill, know-how, or pro-cesses, or consist of the development and transfer of a technical plan or technical design
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The term “fees for technical services” as used in this article 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. |
On the other hand, the learned Departmental representative relied on the orders of the authorities below :
We have heard both sides on the issue. We have also considered the case laws relied upon by both the sides. The term fees for technical services is defined under article 12(4) of the Double Taxation Avoidance Agreement between the India and Singapore as under (page 14 of 209 ITR (St.)):
"(4) The term 'fees for technical services' as used in this article 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."
The assessee provided testing services and issued test reports. These reports cannot be said to make available any technical knowledge, experience, skill, know-how or processes which enabled the Indian company to acquire the services to apply the technology contained therein. Therefore, these receipts cannot partake the fees for technical services as defined in the Double Taxation Avoidance Agreement with Singapore. The samples were sent by Indian company, M/s. Effem India for testing in Singapore. These samples were comprising of broken rice, maize, pet food, wheat gluten sodium caseinate, poultry meal, soya protein isolate, copra press cake, etc. These samples were tested to detect the presence of mycotoxin. The presence of these toxins is hazardous to human and animal health. The Indian company Effem India which manufactures the dog foods regularly sent such samples to appellant for detection of such toxins prior to the utilisation of these items in the manufacturing process. The expression "make available" has been examined by various courts. Some the decisions are as below:
The Authority for Advance Rulings in the case of Anapharm Inc. In re [2008] 305 ITR 394 (AAR) has held as under (headnote) :
"The applicant, a company incorporated in Canada, was a contract research organisation providing clinical and bio-analytical services to assist pharmaceutical companies around the world in the development of new drugs or generic copies of drugs already being marketed. It evaluated on behalf of its clients the bio-equivalence and/or comparative bio-availability of the new generic drug vis-a-vis the reference drug which was already available in the market by devising various methods/protocols in conformity with international regulations. The reports produced by the applicant were acceptable to the regulatory authorities. Neither the methods/protocols developed, which were product specific, nor the specimens, were given to the clients. Only the final reports/conclusions of the evaluation were given to the clients. The client seeking approval of regulatory authorities for marketing of new generic drug would enclose the test report provided by the applicant along with its application. The applicant entered into agreements with Indian pharmaceutical companies, viz., Sandoz and Ranbaxy, for rendering such services. The clients paid a fee to the applicant for these services. On these facts, the applicant sought ruling of the Authority on the question whether the fee was taxable in India. The Authority ruled : (i) There is some difference between section 9 of the Income-tax Act, 1961 and article 12 of the Agreement for the Avoidance of the Double Taxation between India and Canada in the definition of 'fee for technical/included services', inasmuch as the requirement of paragraph 4(b) of article 12 of the Double Taxation Avoidance Agreement was absent in section 9. Article 12 required that technical knowledge, experience, etc., should be "made available" to the recipient, but it did not define that expression. Notwithstanding this, mere provision of technical services was not enough to attract article 12(4)(b). It additionally requires that the service provider should also make his technical knowledge, experience, skill, know how, etc., known to the recipient of the service so as to equip him to independently perform the technical function himself in future, without the help of the service provider. In other words, payment of consideration would be regarded as 'fee for technical/included services' only if the twin test of rendering services and making technical knowledge available at the same time was satisfied.
Raymond Ltd. v. Deputy CIT [2003] 86 ITD 791 (Mum) and Mckinsey and Co. Inc. (Philippines) v. Asst. DIT (International Taxation) [2006] 284 ITR (AT) 227 (Mum) relied on.
(ii) That though the applicant rendered bio-technical services which were sophisticated in nature, it did not reveal to Sandoz/Ranbaxy as to how it conducted those tests or the inputs that had gone into it, so as to enable the latter to carry out those tests themselves in future. A broad description or indication of the type of test carried out did not enable the applicant's clients to derive the requisite knowledge to conduct the tests or to develop the technique by themselves. The fact that the tests in question were highly technical in nature will not make a difference. There was no provision in the agreements with Sandoz/Ranbaxy which would entitle them to know the details of the analytical methods and the procedures employed by the applicant. Handing over the tested samples and test compound could not be equated with making technology, know-how, etc., available to the clients. Therefore, clause (b) of article 12(4) did not come into play and the services could not be considered to be 'fees for included services'.
(iii) That the fees could not be considered 'royalty income' under article 12. Information concerning scientific or commercial experience of the applicant or relating to the method, procedure or protocol used in conducting bio-equivalence tests was not imparted to the pharmaceutical companies and the consideration was not paid for that purpose and the fees received by the applicant had to be treated as 'business income' and not 'royalty income'. Since the applicant was in the business of providing bio-analytical services to pharmaceutical companies the consideration received from them would be business income. In view of article 7 read with article 5 of the Double Taxation Avoidance Agreement such income could be taxed in India only if the applicant had a permanent establishment in India. Since the applicant denied that it had a permanent establishment in India, and there was nothing on record to indicate the contrary, the applicant was not taxable under the Act in India."
In the case of Raymond Ltd. v. Deputy CIT [2003] 86 ITD 791 (Mum), the Income-tax Appellate Tribunal, Mumbai, has analysed the word "make available" and has decided the issue in its order at paragraphs 91 to 95, which are reproduced as under :
"91. Now we have to see if the meaning ascribed to the words 'make available' by Mr. Dastur is acceptable or reasonable. Whereas section 9(1)(vii) stops with the 'rendering' of technical services, the Double Taxation Avoidance Agreement goes further and qualifies such rendering of services with words to the effect that the services should also make available technical knowledge, experience, skills, etc. to the person utilising the services. These words are 'which make available'. The meaning ascribed by Mr. Kapila for the Department is that these words merely mean 'to allow somebody to make use of, whether actually made use of or not', but in our opinion and with respect, this meaning does not take due note of the addition of such words to the 'rendering of any technical or consultancy services'. The meaning suggested by Mr. Kapila is embedded in the 'rendering' of the services itself. When somebody 'renders' services, it presupposes that somebody else is 'making use' of the same. But the 'making use of' should be contrasted with the 'making available'. The 'making available', in our opinion, refers to the stage subsequent to the 'making use of' stage. The qualifying word is 'which'-the use of this relative pronoun as a conjunction is to denote some additional function the 'rendering of services' must fulfil. And that is that it should also 'make available' technical knowledge, experience, skill etc. In gram- mar, the word 'which' is called a relative pronoun 'because it refers or relates (i.e. carries us back) to some noun going before, which is called its antecedent' (see High School English Grammar and Compositions by Wren and Martin [1994] revised edition, page 45). The noun going before the relative pronoun 'which' in the article is 'services'. At pages 46 and 47 of the same book by Wren and Martin, it is stated as under :
'Note.-The relative pronouns 'who' and 'which' can be used-
(i) to restrict, limit, or define more clearly the antecedent ; . . .
(ii) to give some additional information about the antecedent ;'
92. We hold that the word 'which' occurring in the article after the word 'services' and before the words 'make available' not only describes or defines more clearly the antecedent noun ('services') but also gives additional information about the same in the sense that it requires that the services should result in making available to the user technical knowledge, experience, skill, etc. Thus, the normal, plain and grammatical meaning of the language employed, in our understanding, is that a mere rendering of services is not roped in unless the person utilising the services is able to make use of the technical knowledge etc. by himself in his business or for his own benefit and without recourse to the performer of the services in future. The technical knowledge, experience, skill etc. must remain with the person utilising the services even after the rendering of the services has come to an end. A transmission of the technical knowledge, experience, skills, etc. from the person rendering the services to the person utilising the same is contemplated by the article. Some sort of durability or permanency of the result of the 'rendering of services' is envisaged which will remain at the disposal of the person utilising the services. The fruits of the services should remain available to the person utilising the services in some concrete shape such as technical knowledge, experience, skills, etc.
93. In the present case, as Mr. Dastur pertinently pointed out, after the services of the managers (Merrill Lynch and other co-managers) came to an end, the assessee-company is left with no technical knowledge, experience, skill, etc., and still continues to manufacture cement, suitings etc. as in the past.
94. The memorandum of understanding appended to the Double Taxation Avoidance Agreement with the USA and Singapore Double Taxation Avoidance Agreement can be looked into as aids to the construction of the UK Double Taxation Avoidance Agreement. They deal with the same subject (fees for technical services, referred to in the US agreement as 'fees for included services'). As noted earlier, it cannot be said that different meanings should be assigned to the US and the UK agreements merely because of the memorandum of understanding despite the fact that the subject matter dealt with is the same and both have been entered into by the same country on one side (India). The memorandum of understanding supports the contention of the assessee regarding the interpretation of the words 'make available'. The portions of the memorandum of understanding explaining paragraph 4(b) of the relevant article, which we have extracted earlier in our order while adverting to the contentions of the assessee, fully support its interpretation. Example (4) given in the memorandum of understanding also supports it. This is of a US company manufacturing wallboard for the assessee using the assessee's raw material but using its own plant. No technical knowledge, experience, skills, plan or design is held to have been made available in such a case. However, in contrast, example (5) is of a US company rendering certain services in connection with modifying the software used by the Indian company to suit a particular purpose. A modified computer software programme is supplied by the US company to the Indian company. It is therefore held that there is a transfer of a technical plan (i.e., computer software) which the US company has developed and made available to the Indian company. The fees are chargeable. These examples affirm the position taken by the assessee-company before us as to the interpretation of the words "make available"
95. Article 12.4(b) of the Double Taxation Avoidance Agreement with Singapore was relied on by both sides-by Mr. Dastur to show that the words used therein, viz. 'if such services make available technical knowledge, experience, skill, know-how or processes, which enables the person acquiring the services to apply the technology contained therein . . .' merely make it explicit what is meant by 'make available' while Mr. Kapila contended that these words being absent in the Double Taxation Avoidance Agreement with the UK, it indicates that the assessee-company need not be in a position to apply the technology for its own use in future without recourse to the person rendering the services. On a careful consideration of the matter, we are of opinion that the addition of these words in the Singapore Double Taxation Avoidance Agreement merely make it explicit what is embedded in the words 'make available' appearing in the Double Taxation Avoidance Agreement with UK and U.S.A. The memorandum of understanding under the US Double Taxation Avoidance Agreement and the examples given thereunder, to which we have already referred, make it clear. The meaning of those words were expressly incorporated in the Singapore agreement by adding the necessary words. What would be the use of coining the words make available' if it is not intended, as contended by Mr. Kapila, that the person utilising the services should be in a position to apply the technology for his own use in his business in future without recourse to the person rendering the services ? Would it not be a contradiction in terms to say that though the technical knowledge, etc. are 'made available', the person to whom they are made available cannot apply the same for his benefit ? The treaties, in our opinion, could not have intended such a result. What was therefore implicit in the concerned articles in the UK and the US Double Taxation Avoidance Agreements was made explicit by adding the necessary words in the Singapore agreements. As Mr. Dastur rightly remarked, it is a process of evolution guided by experience and what started in 1990-the Double Taxation Avoidance Agreement with the US-as a memorandum of understanding gradually crystallised and got incorporated in the article itself in the Double Taxation Avoidance Agreement with Singapore."
The hon'ble Delhi High Court in the case of DIT v. Guy Carpenter and Co. Ltd. [2012] 346 ITR 504 (Delhi) in I. T. A. No. 202 of 2012 dated April 23, 2012 has also analysed the word "make available" in the Double Tax- ation Avoidance Agreement between Indo-UK and has decided the issue as under (page 511) :
"A plain reading of article 13(4)(c) of the DTAA indicates that 'fees for technical services' would mean payments of any kind to any person in consideration for the rendering of any technical or consultancy services which, inter alia, 'makes available' technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or technical design. According to the Tribunal, this 'make available' condition has not been satisfied inasmuch as no technical knowledge, experience, skill, know-how, processes, have been made available by the assessee to the insurance companies operating in India. It also does not consist of the development and transfer of any technical plan or technical design.
The Tribunal examined the evidence available on record in order to return a finding on the issue as to whether the payments received by the assessee from the insurance companies operating in India would fall within the expression 'fees for technical services' as appearing in article 13(4)(c) of the DTAA read with section 9(1)(vii) of the said Act. While doing so the Tribunal, inter alia, found that the assessee-company was an international reinsurance intermediary (broker) and was a tax resident of the United Kingdom. Further, that it was a recognized broker by the financial services authority of the United Kingdom. It was also an admitted position that the assessee did not maintain any office in India and that it had a referral relationship with J. B. Boda reinsurance (Broker) Pvt. Ltd. of Mumbai and that J. B. Boda was duly licensed by the Insurance Regulatory and Development Authority to transact reinsurance business in India.
The Tribunal also observed as under Guy Carpenter and Co. Ltd. (No. 1) v. Additional Director of Income-tax (International Taxation) [2012] 18 ITR (Trib) 333 (Delhi) (page 354) :
'27. In the illustrative transaction, New India Insurance Co. Ltd. in India has entered into an agreement to reinsure on an excess loss basis the catastrophe risk arising from its primary insurance cover in conjunction with J. B. Boda and Alsford Page and Gems Ltd. (the reinsurance brokers). The terms of the agreement specifies that the assessee in conjunction with J. B. Boda are recognized as intermediary, through whom all communications relating to this agreement shall pass. The terms of the agreement further provides that the assessee will provide all the details of the agreed endorsements to the reinsurers by e-mail or facsimile and shall submit the slip policy to XIS (Lloyd's processing market) for signing. The assessee will act as a claim administrator and will submit claims advices to relevant market systems. For the services rendered, the assessee along with the other reinsurance brokers acting as an intermediary in the reinsurance process for New India Assurance Co. will be entitled to 10 per cent. brokerage. From the role played by the assessee in the reinsurance
process, as discussed above, it is evident to us that the assessee was rendering only intermediary services while acting as an intermediary/ facilitator in getting the reinsurance cover for New India Insurance Co. There exists no material or basis on the basis of which, it would be said that the assessee was rendering any kind of technical/consultancy service within the meaning of article 13 of the Indo-U. K. treaty. The consideration received by the assessee acting as an intermediary in the reinsurance process cannot, by any stretch of imagination, be qualified as a consideration received for rendering any financial analysis related consultancy services, rating agency advisory services, risk based capital analysis, etc., as alleged by the Assessing Officer.'
The Tribunal also noted the process by which the transaction takes place. It has been pointed out that the originating insurer in India would contact J. B. Boda/M. B. Boda for placing identified risks/class of risks with international reinsurers. J. B. Boda, in turn, would contact one or more international firm(s) of reinsurance broker(s) like the assessee for competitive proposals from the international reinsurer. Then, the international reinsurance brokers like the assessee would contact other primary brokers and various syndicates in the Lloyds market for competitive proposals. Based on the various offers or proposals given by the international reinsurance brokers, like the assessee, to J. B. Boda, the latter would present various options to the originating insurer in India, which would take a final decision in the matter. Based on the decision of the originating insurer in India, the policy terms would then be agreed upon and the risk would be placed with the international reinsurer. It was also pointed out that as per the normal industry practice, the reinsurance premium net of brokerage of 10 per cent. as per the policy contract is remitted to the assessee, i.e., reinsurance brokers, for onward transmission to international reinsurers. The intermediation fee which is another word for brokerage is paid separately by the originating insurance in India to J.B. Boda, the international reinsurance brokers like the assessee and other intermediaries, based on a mutually agreed ratio which accounts for their relative contribution in the reinsurance process. Based on this manner of transacting, the Tribunal came to a conclusion that the payment received by the assessee could not be regarded as 'fees for technical services'. Furthermore, the Tribunal also held that such receipts would not amount to fees for technical services as the 'make available' clause contained in article 13(4)(c) had not been satisfied in the facts and circumstances of the present case.
In our view, the Tribunal has arrived at these conclusions purely on assessing the factual matrix of the case at hand. The findings are in the nature of factual findings and, therefore, according to us, no substantial question of law arises for our consideration, particularly, because the learned counsel for the Revenue was unable to point out any perversity in the recording of such findings. As such no substantial question of law arises for our consideration. The appeal is dismissed. There shall be no order as to costs.
Considering the facts of the assessee's case, we come to the conclusion that payments received by the assessee are not "fees for technical services".
These receipts would not amount to fees for technical services under the "make available" clause in article 12(4) of the Double Taxation Avoidance Agreement between India and Singapore. In view of these facts, we allow the assessee's appeal.
In the result, the appeal of the assessee is allowed.
The order pronounced in open court on this 24th day of January, 2013.
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