by sushil lakhani recent case laws 9 th june, 2007 international fiscal association – western...

By Sushil Lakhani

RECENT CASE LAWS

9TH JUNE, 2007

INTERNATIONAL FISCAL ASSOCIATION – WESTERN REGIONAL CHAPTER

9TH JUNE, 2007 RECENT CASE LAWSBY SUSHIL LAKHANI

2IFA - WRC

ISHIKAWAJIMA-HARIMA HEAVY INDUSTRIES CO. LTD. (288 ITR 408 (SC))

SET SATELLITE (SINGAPORE) PTE. LTD.(MUMBAI, ITAT)

CONTENTS

ISHIKAWAJIMA-HARIMA HEAVY INDUSTRIES

CO.LTD.

(288 ITR 408 (SC))


4IFA - WRC

Assessee a member of a Consortium of six parties.

Consortium entered into a contract with Petronet LNG Limited (‘PLL’) in 2001 for setting up LNG Terminal.

Contract was signed in India. Role/responsibility and consideration of each

consortium member provided separately.

FACTS


5IFA - WRC

Scope of work for IHI was categorized into the following categories:

o Onshore supplyo Onshore serviceso Construction and erectiono Offshore supplyo Offshore services

FACTS (Cont…)

IHI established a Project Office in India for execution of project


6IFA - WRC

IHI has a Permanent Establishment (‘PE’) under Article 5(3) of the India-Japan tax Treaty.

The property in goods which were the subject matter of offshore supply passed on high seas outside India.

The offshore services were also rendered outside India.

FACTS (Cont…)


7IFA - WRC

ISSUE BEFORE ITAT

Whether the AAR’s Ruling in 271 ITR 193 was correct ?

That is:

• Whether any part of consideration for off-shore supplies taxable in India ? And

• Whether consideration for off-shore

services are taxable in India?


8IFA - WRC

AAR’s view on offshore supplies Taxability under the Income-tax Act, 1961

(‘Act’)

Sale takes place outside India – property in goods passes outside India

However, certain operations – signing of contract, receiving, unloading, storing and transporting, paying demurrage charges, etc. performed in India.

AAR Ruling (271 ITR 193)


9IFA - WRC

As such, income deemed to accrue or arise in India to the extent attributable to operations in India.

Taxability under the India-Japan tax treaty

Supply of equipment directly or indirectly attributable to PE in India. Profits from offshore supplies thus, taxable in India

AAR Ruling (271 ITR 193) (Cont…)


10IFA - WRC

• AAR’s view on offshore services

– Taxability under the Act & the India-Japan tax treaty

o Offshore services – Fees for technical services (‘FTS’) under the Act as well as under the India-Japan tax treaty

o Offshore services were not effectively connected to PE



11IFA - WRC

• AAR’s view on offshore services (Cont…)

o Offshore services, thus, taxable at the rate of 20 percent on a gross basis as per Article 12 of the India-Japan tax treaty



12IFA - WRC

The title to goods passed outside India - payment made outside India – income from offshore supply not taxable in India

Signing of contract in India not relevant as the converse would not have made an assessee not taxable

IHI’S CONTENTIONS BEFORE SC

Re: Off-shore Supply:


13IFA - WRC

Performing of certain activities in India (loading, unloading, inland transportation) would not render any part of off-shore supplies liable to tax in India.

The position same under the India-Japan Treaty.

Re: Off-shore Supply:



14IFA - WRC

Re: Off-shore Services:

Not taxable under the Treaty as though effectively connected to PE not attributable to PE



15IFA - WRC

Each component of the contract was directly relatable to the overall performance

Contract was indivisible; breach of any of the terms would impact the entire contract

The turnkey project constituted a PE under the India-Japan tax treaty & as such Explanation I to Section 9(1)(i) applicable.

Turnkey project was executed in India in its entirety

DEPARTMENT’S CONTENTIONS BEFORE SC


16IFA - WRC

Offshore supply and offshore services were interlinked with the entire project

Entire income attributable to the project and deemed to arise in India by virtue of section 9(1)(i) of the Act

Income from offshore supply and services taxable in India

DEPARTMENT’S CONTENTIONS BEFORE SC


17IFA - WRC

Far-reaching observations made by the Supreme Court:

Regarding Turnkey contract:

The mere fact that contract is a turnkey contract would not itself mean that for the purpose of taxability the entire contract must be considered to be an integrated one;

SUPREME COURT RULING


18IFA - WRC

The very fact that supply and service segments were specified separately indicates that the liability of the assessee would also be different;

The payment for offshore supply and services was clearly demarcated – cannot be held to be a complete contract that has to read as a whole.

SUPREME COURT RULING (Cont…)


19IFA - WRC

- Regarding Income arising from business connection:

Although section 9 of the Act raises a legal fiction, it must be construed having regard to the object it seeks to achieve (Maruti Udyog Vs. Ramlal (2 SCC 638 followed)

There is a distinction between existence of a business connection and income accruing or arising from such business connection



20IFA - WRC

Mere existence of a business connection may not result in income accruing or arising in India;

Existence of a Permanent Establishment does not necessarily mean existence of business connection

Where severable parts of a composite contract are performed in different jurisdictions, the principle of apportionment should be applied to determine profits taxable in each Jurisdiction.



21IFA - WRC

Regarding situs of the source of income: The source of income need not be the place where income accrues or arises (CIT Vs. Ahmedbhai Umerbhai (18 ITR 472 (SC))

& CIT Vs. Kirk (1900) AC 588 (HL), Anglo-French Textile Co. Ltd. Vs. CIT (25 ITR 27 (SC)), Carborandum Co. Vs. CIT (108 ITR 335 (SC), ITO Vs. Sriram Bearings Ltd. (224 ITR 724 (SC)).



22IFA - WRC

Supreme Court’s view on offshore supplies: Taxability under the Act

Only such part of the income as is attributable to the operations carried out in India can be taxed in India. The territorial nexus doctrine plays an important part in assessment of tax.

The mere fact that contract is a turnkey contract would not itself mean that for the purpose of taxability the entire contract must be considered to be an integrated one



23IFA - WRC

Sale takes place outside India – property in goods passes outside India and payment outside India

The fact that the contract was signed in India is of no material consequence

PE doesot constitute Business Connection as PE not a cause of the income.



24IFA - WRC

Income from offshore supply not taxable in India

Taxability under the India-Japan tax treaty

Paragraph 6 of the Protocol to the India-Japan tax treaty not fulfilled as PE did not play any part in off-shore supplies.



25IFA - WRC

Supply of equipment not directly/ indirectly attributable to PE in India – PE not involved in operations in connection with offshore supply

Income from offshore supplies not taxable in India



26IFA - WRC

Supreme Court’s view on offshore services Taxability under the Act

For being covered U/s. 9(1)(vii) two conditions to be fulfilled: Services should be rendered in India; and

Services should be utilised in India.

(“Section 9(1)(vii) must be read with Section 5 which takes within its purview the territorial nexus”)



27IFA - WRC

Sufficient nexus between the rendering of services and territorial limits of India necessary to make the income from offshore services taxable

Even after insertion of (vi) & (vii) in Section 9, the provisions of 9(1)(i) continue to given such cases

(VDO Tachometer Werke Vs. CIT (117 ITR 804 (Kar)).



28IFA - WRC

Location of source of income in India would not render sufficient nexus to tax the income from that source

To be covered in Sec. 9(1)(vii) the services should have a “live link” with India.

Entire contract would not be attributable to the operations in India assuming the offshore elements form an integral part of the contract



29IFA - WRC

(Query: Whether the position of taxability under the Act of off-shore services would change after insertion of the new Explanation added to Section 9 w.e.f. 1.6.76 ?)

Entire services rendered outside India – not deemed to accrue or arise in India



30IFA - WRC

Taxability under the Japan Tax Treaty

Comments on Page 409 of Klaus Vogel approved by SC – only profits which are economically attributable to the PE i.e. those which arise from PE’s activities taxable in source country.

Art 12(5) would apply as offshore services “effectively connected” to the PE.



31IFA - WRC

Article 7(2) r.w. Para 6 of the protocol of the India-Japan tax treaty applicable – only profits directly or indirectly attributable to its PE taxable in India

Offshore services were rendered outside India – PE did not have any role to play in such services – therefore not attributable and hence not taxable in India



32IFA - WRC

The term “effectively connected” & “attributable to” are to be construed differently – even if offshore services & the PE are “connected”

Offshore services inextricably linked to the offshore supply – must be considered in the same manner


SET SATELLITE (SINGAPORE) PTE. LTD.

(MUMBAI, ITAT)


34IFA - WRC

FACTS

Assessee is a Singapore resident engaged in business of broadcasting television channels.

It has a subsidiary in India viz. SET India Pvt. Ltd. which is assessees’ “dependent agent” (“DA”) for sale of airtime.

Assessee pays the DA arms’ length commission for its services.


35IFA - WRC

The AO applied Circular No. 742 & taxed 10% of gross receipts.

The Commissioner (Appeals) held that payment of arms’ length commission to DA extinguishes the tax liability of the DA’s PE (DAPE) as well

FACTS (Cont…)


36IFA - WRC

Once the DA is paid “arms’ length price”, can any further income, other than remuneration paid to DA, be attributed to PE & be taxed in India?

(Note: Examination of taxability under the Act & exact quantification of amount taxable in India have been remitted back to AO)

ISSUE BEFORE ITAT


37IFA - WRC

1. Taxability of a foreign principal cannot exceed beyond arms’ length profits earned by a DA as:

• PE is nothing but the DA-both are one entity & not two separate entities.

• Art. 7(2) attributes to the PE only those profits which the PE would make if it were a distinct & separate enterprise

ASSESSEES’ ARGUMENT


38IFA - WRC

2. Payment of arms’ length compensation to DA extinguishes tax liability of foreign principal relying on:

• Commentaries of Philip Baker, Prof. Roy Rohatgi & Prof. David Davies.

• AAR ruling in Morgan Stanley & Co. (284 ITR 260)• ITAT Ruling in DCIT Vs. Roxon (103 TTJ 891)• Circular No. 23 of 1969

• Circular No. 5 of 2004 for BPO companies.

ASSESSEES’ ARGUMENT (Cont…)


39IFA - WRC

3. SC Ruling in UOI Vs. Azadi Bachao Andolan (263 ITR 743) relied to advance the proposition that the purpose of treaties is to allocate taxing Jurisdictions.

ASSESSEES’ ARGUMENT (Cont…)


40IFA - WRC

1. “Single taxpayer approach” doesnot result in fair division of taxing rights between the two Jurisdictions as it ignores assets & risks that relate to the activity in source Jurisdiction.

ITAT’S VIEW

2. DA & DAPE are two separate enterprises.


41IFA - WRC

3. DAPE is distinct from DA as:

• Treaty provides that “the enterprise shall be deemed to have a PE” if it has a DA in the other state.

• Treaty doesnot state that the DA shall be deemed to be the PE of the enterprise.

ITAT’S VIEW (Cont…)


42IFA - WRC

4. Rationale for a DAPE is simple:

• DA, being “economically” & “financially” dependent on the foreign principal, is integrated into the principal’s business to a large extent.

• Would be too easy to circumvent PE taxation if tax position is to vary based only on whether or not the business activities are carried out directly or through an agent.



43IFA - WRC

5. Treaty, thus, provides that profit attributable continue to remain same whether the F.E. carries on business directly or through a DA.

6. Further, Art. 7(2) provides that part of profits of the foreign enterprise shall be taxable in source country & DA’s profits are not the same as FE’s profits.



44IFA - WRC

7. Circular No. 5 of 2004 & Circular No. 23 of 1969 not relevant as these circulars do not deal with taxability of a dependent agent.

8. AAR’s decision in Morgan Stanley (284 ITR 260) not binding on ITAT.



45IFA - WRC

• Australian Tax Office Guidelines titled “Attribution of profits to a Dep. Agent PE”.

• OECD’s Final Report in “Attribution on Profits to a PE”

9. Approved the views of:



46IFA - WRC

10.Two steps process to compute profits attributable to a DAPE.

• Hypothesise the PE as a distinct & separate enterprise i.e. allocate assets & liabilities to PE on the basis of FAR analysis.



47IFA - WRC

• Determine the hypothetical revenues of the DAPE on the basis of functional analysis after deducting arms’ length compensation to DA & other expenses incurred.

(Over-simplistic example (with some arithmetical errors) given by ITAT on page 18 of its Order with a caveat that FE can claim further adjustment for activities outside India)



48IFA - WRC

Held that part of profits of FE taxable in India as it has a DAPE in India.

Upheld action of AO in taxing 10% of gross receipts as no further details provided.

ITAT’S CONCLUSION


49IFA - WRC

Issue regarding taxability under the Act & regarding applicability of Circular No. 23 of 1969 remitted back to CIT(A) for adjudication. (Passing comment that the Circular No. 23 of 1969 & Circular No. 5 of 2004 donot deal with dep. Agent.)

ITAT’S CONCLUSION (Cont…)


50IFA - WRC

Art. 5(4) & Art. 7(2) refer to “activities” (of agent) & thus the profits attributable should be only those that relate to “activity” (of an agent)

CONTENTIONS NOT RAISED BY ASSESSEE BEFORE ITAT


51IFA - WRC

IMPACT OF SC DECISION IN HYUNDAI CASE?

SC has on Page 19 of its order in Hyundai’s case reiterated that hypothetical profits can be attributed to PE only if the transactions between FE & PE were not at arms’ length.

THANK YOU

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by sushil lakhani recent case laws 9 th june, 2007 international fiscal association – western...

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