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Income Tax Appellate Tribunal, MUMBAI BENCH “I”, MUMBAI
Before: SHRI AMIT SHUKLA, HONBLE & SHRI S. RIFAUR RAHMAN, HONBLE
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “I”, MUMBAI BEFORE SHRI AMIT SHUKLA, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER ITA NO. 2977/MUM/2022 (A.Y: 2018-19) DCIT (IT) – 3(2)(1) v. M/s. Marriott International Design Room No. 1632, 16th Floor & Construction Services Inc., Air India Building, Nariman Point C/o. Marriot Hotels India Pvt. Ltd., Mumbai – 400 021 303A, 304, Fulcrum B-Wing, Hiranandani Business Park Mumbai, Sahar Road Andheri (E) - 400099 PAN: AAGCM5401Q (Appellant) (Respondent) C.O. No. 01/MUM/2023 [ARISING OUT OF ITA NO. 2977/MUM/2022 (A.Y: 2018-19)] M/s. Marriott International Design v. DCIT (IT) – 3(2)(1) & Construction Services Inc., Room No. 1632, 16th Floor C/o. Marriot Hotels India Pvt. Ltd., Air India Building 303A, 304, Fulcrum Nariman Point B-Wing, Hiranandani Business Park Mumbai – 400 021 Mumbai, Sahar Road Andheri (E) - 400099 PAN: AAGCM5401Q (Appellant) (Respondent) Assessee Represented by : Shri Paras Savla Department Represented by : Shri Kunal Haver
Date of conclusion of Hearing : 09.02.2023 Date of Pronouncement : 02.05.2023
ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., O R D E R PER S. RIFAUR RAHMAN (AM)
This appeal and cross objection are filed by revenue and assessee respectively, against order passed by the Learned Commissioner of Income Tax (Appeals) – 57, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 12.09.2022 for the A.Y. 2018-19.
Brief facts of the case are, during the assessment proceedings Assessing Officer passed a draft assessment order u/s. 143(3) r.w.s. 144C(1) was passed on 16.04.2021 and the same was served on the assessee and the assessee vide letter dated 11.05.2021 submitted that assessee would not file objection before Dispute Resolution Panel u/s.144C and requested the Assessing Officer to pass the final Assessment Order. Accordingly, final Assessment Order u/s. 143(3) r.w.s. 144C(3) of the Act was passed.
The original return of income for the A.Y. 2018-19 was filed by the assessee on 29.10.2018 declaring a total income of ₹.Nil/-. The case was selected for scrutiny and notices u/s. 143(2) and 142(1) of Income-
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., tax Act, 1961 (in short “Act”) were issued and served on the assessee. In response Authorised Representative of the assessee attended and submitted the relevant information as called for.
The assessee company is incorporated in the United States and a tax resident of the United States of America. The assessee provides technical advisory services and design services to the Indian hotel owners who enter into Technical services agreement with the assessee for the project. During the year under consideration, assessee has earned an amount of ₹.7,44,85,003/- from the Indian hotel owners for the technical services provided. During the scrutiny proceedings, the assessee was asked to explain the nature of technical services rendered and why the same shall not be taxable in line with the Assessment made in previous years in assessee's own case.
Assessee vide letter dated 03.02.2020 made detailed submissions which is reproduced by the Assessing Officer in his order at Page No. 2 to 18 of the order. After considering the submissions of the assessee Assessing Officer discussed the various issues involving Article – 12 of the India - US DTAA and applicability of the article fees for included
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., services and Royalty in the case of the assessee and by relying on various case law, he held that the case of the assessee falls under fees for including services as per Article 12(4)(b) with the following observations:-
“11. The Technical Service Agreement entered into by the the assessee company with the 'OWNERS' are fees for Technical Services clearly as held by the Assessee. They also make available a complete Technical Design and a Technical Plan to the OWNER for operating the hotel on the standards of the MARRIOTT BRAND. Infact the assessee company delivers a complete package to the OWNER of the Hotel till the Hotel is constructed and the operating supplies are procured. The Hotel OWNER does not have to refer back to the assessee company for operating the Hotel once the Project is complete as per the MARRIOTT BRAND with the help of the Technical Service Agreement. This plan and design and construction will remain with the OWNER of the Hotel even when it terminates its agreement with the Marriott brand of Hotels. In view of the above the Assessee company does "make available" technical knowledge, experience, skill, knowhow and processes to the Hotel Owners by rendering the Technical Services as mentioned in the TSA Agreement and there is a transfer of a Technical Plan/Design. Hence the fees received by the Assessee company for these services are classified as "FEES FOR INCLUDED SERVICES" and taxable under Article 12(b) of the India US DTAA. 12. The decision of the Hon'ble ITAT in the case of one of the assessee's group company viz MARRIOTT INTERNATIONAL HOTELS INC.. for AY 2006-07 to 2009- 10, on holding the receipts of Marriott International Hotels Inc as Royalty income, had discussed in the order as under: "8.10 Entire Agreement: The following constitute the entire agreement between the parties and/or their respective affiliates, supersede all prior understandings and writings, and may be changed only by a writing signed by the parties and/or their respective Affiliates: (i) the Marriott Agreements; (ii) the Technical Services Agreements; (iii) any instruments to be executed and delivered pursuant to
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., any of the foregoing agreements; and (iv) any other writings executed by the parties or their respective Affiliates, which writings are stated to be supplemental to or to amend any of the foregoing agreements." This clause apparently refers to all the agreements entered by all the affiliates of Marriot group with the Hotels. Further as submitted by Ld D.R, the survival of the ISMA agreement entered by the assessee herein would also be dependent upon the survival of other agreements titled as 'Operating agreement and Advisory services Agreement". This is evident from Clause 3.01(B) of the agreement. From the 'Recital part of the agreement, it is seen that the Operating Agreement has been entered by M/s Marriott Hotels Private Limited. The Hotels are required to obtain approval from Govemment of India for entering into Collaboration agreement. One such approval obtained from Government of India is placed at pages 96 to 100 of the paper book. A perusal of the same would show that the Name and address of the foreign Collaborator is given as under- 1. M/s Marriott International Design and Con. Services Inc., 10400 Fernwood Road, Bethesda, Maryland 20817. 2. Marriott Hotel Services Inc. 3. Renaissance Services B.V 4. Marriott International Inc. 5. Marriott Worldwide Corporation 6. Rennaissance International Inc. 7. Marriott International Hotels Inc. Thus, it is seen that all the above said companies appear to have same address. 8.5 The details of payments proposed to be made is given in Clause 4 of the approval, as per which 1. Lump sum Technical Services Fee was proposed to be paid to M/s Marriott International Design & Construction Services Inc. 2. Lump sum 'Pre-opening technical assistance' amount was proposed to be paid to M/s
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., Marriott Hotel Services Inc. 3. Lump sum Pre-opening technical assistance' amount was proposed to be paid to M/s Rennaissance Services B.V 4. International Sales and Marketing fee (upto 2.5% ) & Reimbursement of cost (as per prescribed rates) was proposed to be paid to M/s Marriott International Inc. (the assessee herein as per Article (2.05 and (2.01 to 2.04)) respectively. 5. Royalty was proposed to be paid to M/s Marriott Worldwide Corporation @ 0.5% of gross revenue and also to M/s Rennaissance International Inc. @ 0.5% of gross revenue. 8.8 Normally value of a Brand is created by popularizing the same amongst public. The 8.8 value of a Brand would depend upon the acceptance level of the public. More the public admire a brand, more would be its value. Once the public at large start reposing confidence on the "Brand", the same becomes a marketable product in the business circles. Once it becomes a marketable product, the owner of the brand would be entitled to give licenses to others on payment of "Royalty" in return. Tot que 8.9. It is a well known fact that the human memory is having short span of life and hence there is every possibility that the public would forget the "Brand name", if they are not continuously reminded about the brand. Hence it becomes necessary for the Brand owner to ensure that the public at large do not forget the brand. Hence, in order to maintain the "Brand Value", the brand owner has to take all kind of steps to ensure that the value of the brand remain intact. Hence the responsibility to maintain and/or enhance the "Brand value" always remains with the brand owner. Normally the "Brand value" is maintained by continuous and sustained advertisement/marketing activity, as can be noticed from the repeated advertisements made in the various types of media." Therefore relying on the judgment of the Hon'ble ITAT as mentioned above, it can be construed that the technical and
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., advisory agreement entered by the assessee with the hotel owners from the stage of conceptualisation, and through the process of design review and advisory system, the assessee exercises control on each aspect of the hotel building and thus the hotel is designed and constructed in accordance with the brand standards of the "MARRIOT" brand. 13. Accordingly, without prejudice to the above discussion considering the Income received as Fees for Included services on the grounds that the services were made available to the Hotel Owner as per article 12(4)(b) of the India USA DTAA, it can also be concluded that the services rendered by the assessee are in the nature of Fees for Included services as per Article 12(4)(a) as well. This is because the services rendered by the assessee to the hotel owners are ancillary and subsidiary to the application or enjoyment of the right to use "Marriot" brand rendered to the Hotel owner for the Royalty payments made to the Marriot group company. 14. Therefore as per the above discussions, the income of Rs.7,44,85,003/- received from the hotel owners is taxable as fees for technical services u/s 9(1)(vii) of the Income tax act and as Fees for included services as per Article 12(4)(a) and 12(4)(b)as the assessee has rendered ancillary and subsidiary services to the royalty payment, has made available the technical services to the hotel owners and nevertheless had delivered a technical design and plan of hotel to the hotel owners. Hence, income of Rs.7,44,85,003/- is added to the total income of the assessee as Fees for Included services to be taxed at 10% as per India-USA DTAA. Penalty u/s 274 r.w.s. 270 A of I.T. Act, 1961 separately for under-reporting of income.”
Aggrieved assessee preferred an appeal before the Ld.CIT(A) and Ld.CIT(A) allowed the appeal of the assessee by relying on order of the ITAT in assessee’s own case.
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., 7. Aggrieved revenue is in appeal before us raising following grounds in its appeal: -
“1. Whether, on the fact and circumstances of the case and in law, the Ld. CIT(A) erred in relying on the judgment of Hon'ble ITAT in the case of Viceroy Hotels when services provided by the assessee are more than advisory in nature and come in purview of Fees for Included Services as per Indo-US DTAA. 2. Whether, on the fact and circumstances of the case and in law the Ld. CIT(A) erred in ignoring the fact that as per Technical Service Agreement(TSA)' assessee company does more than mere review of the work done by the owner of the hotel and is involved in the project from conceptualization to the final stage and makes available technical knowledge, experience and skills to the owner of the hotel. 3. The Appellant prays that the order of the Ld. CIT(A) on the ground(s) be set aside and that of the Assessing Officer be restored. 4. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary.”
At the time of hearing, Ld. AR brought to our notice that this issue is squarely covered in favour of the assessee and brought to our notice various Coordinate Bench orders in assessee’s own case. Ld. AR submitted that Cross objection filed by the assessee is only of academic in nature.
On the other hand, Ld. DR relied on the orders of the lower authorities.
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., 10. Considered the rival submissions and material placed on record, we observe that the issue under consideration is squarely covered in favour of the assessee and in the immediately preceding assessment year, the Coordinate Bench decided the issue in ITA.No. 455/Mum/2022 dated 26.08.2022, for the sake of clarity, the relevant ratio is reproduced below: -
“4. To adjudicate on these grievances it is sufficient to take note of the fact that the assessee before us is a company incorporated and fiscally domiciled in United States Of America and that during the relevant previous year it has received a sum of Rs.9,80,78,387/- towards advisory assistance for design and construction of hotel. The Assessing Officer was of the view that the amount so received by the assessee is taxable in the hands of the assessee as fees of included services under article 12 of the US Tax Treaty and also as fees for technical services u/s. 9 (1) (vii) of the Income Tax Act. For the reasons set out in short while it is not really necessary to go into any further details in respect of nature of the services rendered. Suffice to take note of the fact that when the taxability of an identical payment made by the an Indian company namely Viceroy Hotel Ltd., to the asssessee company came up before a coordinate bench of this Tribunal, in the course of adjudicating upon the tax deduction at source liability u/s 195 of the Act, it was held that these amounts are not taxable under the provisions of the Indo-US tax treaty, while holding so the co- ordinate bench inter alia observed as follows:- “30. We have also gone through the definition of 'included services in Indo US Treaty so as to find out whether the services rendered by Marriott will fall under the purview of included services as enumerated in article 12(4)(a) and 12(4)(b) of the Treaty : Article 12(4) of the Indo US Treaty reads as below: For the purpose of this article 'fees for included services' means payments of any kind to any person in consideration for the rendering of any technical or
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., consultancy services (including through the provision of services of technical or other personnel) if such services; (a) Are ancillary and subsidiary to the application and 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, knowhow or processes or consist of the development and transfer of a technical plan or technical design.
Thus, Article 12(4) emphasizes on rendering any technical or consultancy services which are ancillary and subsidiary to the application or enjoyment of any right, property or information for which a payment is received or make available technical knowledge, experience, skill, know how or processes or consist of development and transfer of technical plan or technical design. The services rendered by Marriott do not fit into either of the categories defined in 12(4)(a) or 12(4)(b) since the services do not involve technical expertise nor does it make available any technical know-how plan, design etc. What is being done by Marriott is basically inspection of the hotel, reviewing the facilities, comparing the same with Marriott's standards and suggesting improvements/change wherever required to meet the Marriott standard. Generally speaking technology will be made available when the person acquiring the service is enabled to apply the technology. The fact that the provision of service may require technical input by the person providing the service does not per se mean the technical knowledge, skill etc., are made available to the person acquiring the service within the meaning of Article 12(4)(a). An example (example 7) given in the Memorandum of Understanding will further elucidate the issue. In this example, an Indian Vegetable Oil Manufacturing firm wished to market its product worldwide for which it hired an American Marketing Consulting Firm to do a Computer Simulation of the World Market and advise the Indian company on the marketing strategy. On the issue whether the fees paid to the US Company will be for included services, it has been stated that the fees would not be for included
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., services. The American Company is not making available to the Indian Company any technical knowledge, experience and skill nor is it transferring a technical plan or design. What is transferred to the Indian company through the service contract is commercial information. The fact that Technical skills were required by the performer of the service in order to perform commercial information service does not make the service a technical service within the meaning of Article 12(4)(b). 32. Further we find that similar issue has also been decided in the case of Raymond Ltd. (supra) wherein the ITAT, Mumbai has dealt in detail the concept of 'make available' and have opined that the technical knowledge, experience, skill etc. must remain with the person utilising the services even after rendering of the services comes to an end. Similar view was also expressed by Hon'ble Mumbai in the case of Boston Consulting Group (P.) Ltd. (supra) wherein the Tribunal observed that : Unless the services are technical in nature, there cannot be any question of 'technology' being contained therein which the person acquiring the services can be enabled to apply. Therefore, so far as the provisions of India Singapore Tax Treaty as also the provisions of India US Tax Treaty are concerned, payment for services not containing any technology, are required to be treated as outside the scope of 'fees for technical services". Rendering technical or consultant services or services make available means that technical or consultant services rendered should be of such nature that 'makes available' to the recipient technical knowledge, know- how and the like. The service should aimed at and result in transmitting the technical knowledge, etc. so that the payer of services could derive an enduring benefit and utilise the knowledge or know-how in future on its own without the aid of the service provider. By making available technical skills or know how, the recipient of service will get equipped with that knowledge or expertise and be able to make use of it in future,
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., independent of the service provider. In other words, to fit into the terminology 'fees for included services', the technical knowledge and skills etc., must remain with the person receiving the services even after the particular contract comes to an end. The services offered may be the product of intense technological effort and a lot of technical knowledge and experience of the service provider would have into it. But that is not enough to fall within the description of 'fees for included services'. The technical knowledge or skills of the provider should be imparted to and absorbed by the receiver so that the receiver can deploy similar technology or techniques in future without depending on the provider. For example, a prescription and an advise given by the doctor after examining the patient and going through the clinical reports, the service rendered by the doctor cannot said to have made available to the patient, the knowledge and expertise possessed by the doctor. On the other hand, if the same doctor teaches or trains student on the aspect of diagnosis or techniques of surgery, that will amount to making available the technical knowledge and experience of the doctor. In the case of Carborandum Co. v. CIT [1977] 108 ITR 335 (SC), a foreign company entered into an agreement with an Indian company for rendering technical and know how services to the Indian company. In lieu of those services, the foreign company was to receive from the Indian company an annual fee equal to three per cent of the net sale proceeds of the products manufactured by the Indian company every year. The question was how much of the money received by the foreign company would be taxable under the provisions of the Act. The Indian company employed personnel made available by the foreign company, who worked under the direct control of the Indian company. The Supreme Court held that the services of the foreign company in making the employees available were rendered wholly outside India and that the activities of the foreign personnel lent or deputed by the foreign company did not amount to a business activity carried on by the foreign company in India. It was further held
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., that the fee did not accrue or arise in India nor could it be deemed to have accrued or arisen in India and that to rope in the income of the non resident under the deeming provision of section 42(1) of the 1922 Act it must be shown by the department that some of the operations were carried out in India in respect of which the income is sought to be assessed. In the case of Addl. CIT v. New Consolidated Gold Fields Ltd. [1983] 143 ITR 599 (Pat.), the assessee company and the foreign company entered into an agreement under which the foreign company was to be technical adviser of the assessee company in the matter of exploration, mining and mineral dressing operations. The foreign company was to be paid a retainer's fee at the rate of $7,000 per annum in London. The Income Tax Officer treated the assessee company as the agent of the foreign company within the meaning of section 163 of the income tax act and treated $7,000 payable by the assessee company to the foreign company as its income accruing in the hands of the assessee company. On appeal, the Appellate Assistant Commissioner held that even if the assessee company was to be treated as an agent within the meaning of section 163(1), there was no business connection within the meaning of section 9(1) of the Act so the income accruing to the non resident foreign company could not be assessed through as agent. That order was affirmed by the Tribunal. On a reference to the High Court of Patna, it was held that the sum of $7,000 was not the income with the foreign company had received in India or an income which had accrued to the foreign company within the meaning of section 5(2) of the Act and that the sum paid to the foreign company at London for technical advice given from London could not be attributed to the operation carried on in India. It was further held that there was no continuity between the business of the non resident and the activity in the taxable territories in respect of the income and, therefore, there was no business connection between the foreign company and the assessee company and the
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., income could not be deemed to accrue or arise to the foreign company in India within the meaning of section 9(1) as such, the said sum paid to the foreign company at London was not assessable in the hands of the assessee company even as agent of the foreign company. In the case of C.E.S.E. Ltd. v. Dy. CIT [275 ITR (AT) 15], Hon'ble Calcutta Tribunal have held that, if the services provided was of mere reviewing and opining rather than designing and directing the project, no technical knowledge etc., is made available to the assessee. The decision was rendered in the context of Indo UK treaty, but the same can also be applied to interpretation of the phrase 'make available' appearing in Indo US Treaty. The fact of the present case is almost identical to the ones discussed above. As in the case of CESE Ltd., the present case what was being made available to the assessee company was advisory services and opinion for improvement of the existing facilities. Accordingly, in the light of the of ITAT Mumbai & Calcutta, no technology or technical skill is being transferred to the assessee company. 33. In view of the above, in our opinion, in the present case, what was made available to the assessee company was advisory services and opinion for improvement of the existing facilities. It is also noted by the assessing officer mentioned in his order that the services rendered by Marriott which includes advisory services and reviewing of the design documents prepared by the owner or owner's consultant to verify compliance with Marriott's standards. It is thus clear that Marriott themselves are not preparing and transferring any drawing, designs, technical plan etc. They are simply reviewing, what is being done by the parties engaged for designing upgrading the Hotel. In view of this, the fees paid to Marriott International will not fall within the ambit of fees for included services. As such, a provision of section 195 is not applicable. Accordingly, there is no
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., question of application of provisions of section 201(1) and 201(1)(A) of the IT Act. 5. Learned CIT(A) in the light of the above decision of the co- ordinate bench granted impugned relief to the assessee by holding that the amounts in question are not taxable in the hands of the Assessee. The Assessing Officer, however, is aggrieved and is in appeal before us. 6. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 7. We are of the view that once a coordinate bench of this Tribunal in assessee’s own case comes to the conclusion that the amounts in question are not taxable in terms of the provisions of the applicable tax treaty and the findings of the co-ordinate bench still hold good in law, we have no reasons to take any other view of the matter than the view so taken by the co-ordinate bench. Learned CIT(A) was quite justified in the following a binding judicial precedent and no specific reasons have been pointed out to us either, for the said judicial precedent, which is binding on us as well, must be deviated from. In view of these discussions and bearing in mind entirety of the case we uphold the relief granted by the learned CIT(A) and decline to interfere in the matter. The grievance raised by the Assessing Officer, does not meet our approval. 8. In the result the appeal filed by the Assessing Officer is thus dismissed.”
Since the issue is exactly similar and grounds as well as the facts are also identical, respectfully following the above decision in assessee’s own case for the A.Y. 2017-18, we dismiss the grounds raised by the revenue.
In the result, appeal filed by the Revenue is dismissed.
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ITA NO. 2977/MUM/2022 (A.Y: 2018-19) C.O. No. 01/MUM/2023 M/s. Marriott International Design & Construction Services Inc., C.O. NO.01/Mum/2023
With regard to cross objection filed by the assessee, since Ld. AR of the assessee submitted that it is only an academic in nature, accordingly, the above cross objection filed by the assessee is dismissed.
In the result, appeal filed by the Revenue and cross objection filed by the assessee are dismissed.
Order pronounced in the open court on 02nd May, 2023
Sd/- Sd/- (AMIT SHUKLA) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 02/05/2023 Giridhar, Sr.PS
Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// BY ORDER
(Asstt. Registrar) ITAT, Mum
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