AUTOLIV ASP INC.,USA vs. DCIT(INTERNATIONAL TAXATION), CIRCLE-1(1)(1), NEW DELHI

Return was filed on 31.03.2017 declaring NIL income. Return was selected for scrutiny assessment and accordingly, statutory notices were issued and served upon the assessee.

The assessee was asked to explain as to why Revenue from engineering fees, software costs, reimbursements and reimbursements of salary and related costs may not be treated as income from Royalty/FTS and taxed accordingly.

The assessee filed detailed reply explaining the nature of transactions and strongly contended that engineering fees is not taxable as FIS in India.

The detailed submissions of the assessee are extracted by the Assessing Officer in his assessment order. The detailed submissions of the assessee were dismissed by the Assessing Officer. The Assessing Officer was of the opinion that the services provided by the assessee are technical services. The Assessing Officer was of the firm belief that these services made available technical knowledge, skill etc and, accordingly, treated the revenue from engineering services as FTS in terms of Article 12 of the India – US DTAA.

In so far as the reimbursements of software costs is concerned, the assessee, in its reply, claimed that software reimbursements is not taxable in India as cost reimbursement does not constitute income.

The assessee raised objections before the DRP but were dismissed by the DRP.

Before us, the ld. counsel for the assessee reiterated what has been stated before the lower authorities and the ld. DR placed strong reliance on the findings of the Assessing Officer /DRP.

Facts on record show that M/s Autoliv [India] Pvt Ltd [Autoliv] has made payments to the assessee for engineering services and certain reimbursement of costs. M/s Autoliv [India] Pvt Ltd undertook project to develop vehicle safety system for Ford brand of cars in India. As the technical centre of Ford group is based in the US, therefore, Autoliv India was required to co-ordinate/ interact with the engineers/ technical personnel of the Ford technical centre in the US.

For administrative convenience, Autoliv India entered into sub contractor agreement with the assessee for availing itself of the related engineering services whereby the employees of the assessee company would co-ordinate/ interact with the engineers/ technical personnel of Ford technical centre in the US for gathering requisite inputs on the designing and development of the product.

In furtherance of the sub-contract, the assessee provided engineering services to Autoliv India. Facts on record show that the assessee rendered engineering services to Autoliv India from the US and none of the employees of the assessee visited India in connection with rendering of such engineering services to Autoliv India. The activities performed by the assessee primarily involved coordinating/interacting with the engineers/technical personnel of the Ford technical centre. The assessee performed analysis and provided the same to Autoliv India, which, in turn was used by Autoliv India in preparing prototype of the product for Ford brand of cars in India.

On a complete understanding of the factual matrix, we are of the considered view that the assessee had no occasion to transfer or make available any technology, skill, knowledge, process, etc. involved in carrying out the engineering services to Autoliv India.

In our understanding of the law, as per section 90(2) of the Act, the provisions of the tax treaty shall prevail over the provisions of the Act to the extent they are more beneficial to the taxpayer. As per Article 12 of the India – US DTAA, fees for included services “means payments of any kind to any person in consideration for the rendering of any technical or consultancy services, if such services:

The term ‘make available’ has been explained in the Memorandum of Understanding [‘MOU’] to the DTAA. As per the said MOU, technology will be considered ‘made available’ when the recipient of the service is enabled to apply the technology.

Facts, as explained above, show that for every project from Ford US, Autoliv India has to approach the assessee for engineering design etc., which means that even after receiving the services from the assessee, Autoliv is not enabled to apply technology for other projects. It is would be pertinent to refer to the judgment of the Hon'ble Karnataka High Court in the case of De Beers India Minerals [Pvt] Ltd 12 Taxmann.com 214 wherein the Hon'ble High Court held as under:

In light of the aforementioned judgment of the Hon'ble High Court of Karnataka, facts of the case in hand show that technical knowledge or skills provided by the assessee should be imparted to and absorbed by the receiver Autoliv India Pvt. Ltd so that the receiver can deploy similar technology or technique in future without depending upon the assessee.

In our considered view, technology only will be considered as made available when the person acquiring such knowledge is possessed of the same enabling him to apply in future at his own. If the services are consumed in the provision without leaving anything tangible with the payer for use in future, then it will not be characterized as ‘making available’ of the technical services notwithstanding the fact that its benefit flowed directly and solely to the payer of the service.

Considering the facts in totality in light of the relevant article of India – US DTAA, we are of the considered view that the engineering fees received by the assessee are not taxable in India. Ground No. 2 with all its sub-grounds is allowed.

The next substantive ground of the assessee relates to the taxation of software reimbursements as Royalty.

The underlying facts in this issue are that the assessee had centrally purchased software primarily consisting software AMC’s from third-party vendors outside India for, and on behalf of, all of its group companies, including Autoliv India. Out of the software charges paid by the assessee to the vendor it had allocated Rs. 3,53,693/- towards charges recoverable from Autoliv India and claimed the same as reimbursement on an ‘at-cost’ basis and without any profit element.

The Assessing Officer was of the firm belief that reimbursement of software charges are nothing but royalty under section 9(1)(vi) of the Act and under Article 12 of the DTAA based on the fact that Autoliv India made payments for the software charges directly to the third- party vendors outside India.

The assessee strongly contends that reimbursements sought by the assessee represent recovery of expenses incurred by it, on behalf of Autoliv India, on an ‘at-cost’ basis. The assessee further contends that it has made payment of software charges to third-party vendors outside India and payments to third parties were made by the assessee and the same were reimbursed by its group companies including Autoliv. It has been pointed out that such reimbursements were not in connection with engineering services that the assessee has rendered to Autoliv under sub-contract agreement.

We find that in the case of A P Moller Maersk AS [2017] 392 ITR 186, the Hon'ble Supreme Court has, inter alia, held that the amounts received by the assessee company were in the nature of ‘at-cost’ reimbursements and no technical services were rendered by the assessee company to the Indian agents, and hence such reimbursements were not taxable as FTS.

In the case in hand, neither the AO nor the ld. CIT(A) has stated that there was any profit element embedded in the payments received by the assessee from Autoliv. In our considered view, once the character of the payment is found to be in the nature of reimbursement of the expenses, it cannot be income chargeable to tax.

Further, we are of the view that since the assessee was not the ultimate beneficiary of the receipts, the assessee did not render any service in connection with reimbursements. Actual bills were paid by the recipients and were later on reimbursed and the assessee did not earn/make any profit on such reimbursements.

Having said all that, we are of the considered opinion that reimbursement towards software charges will not qualify as royalty u/s 9(1)(vi) of the Act as well as under DTAA for the simple reason that it is not a case of the assessee possessing any right for use or right to use computer software in the first place for it to transfer such right to Autoliv. Article 12(3A) of the India – USA DTAA provides royalty which means consideration received inter alia for use or right to use any copyright of a literary, artistic or scientific work.

In light of this article, we are of the considered view that the assessee has not received consideration for granting a right to use any copyright in computer software from Autoliv. We find that the lower authorities have heavily relied upon the amendment brought in the statute in 2012. But the facts of the case in hand are squarely covered in favour of the assessee and against the Revenue by the Hon'ble Supreme Court in a land mark judgment in the case of Engineering Analysis Center of Excellence Pvt Ltd. [2021] 432 ITR 471 wherein the Hon'ble Supreme Court has upheld the following with regard to Royalty:

Since the term ‘Royalty’ has been defined in the DTAA, definition of the term ‘Royalty’ under the Act cannot be applied. Considering the facts of the case in totality, we hold that reimbursement towards software charges received by the assessee from Autoliv is not taxable since the same does not represent any income in the hands of the assessee and further, in light the decision of the Hon'ble Supreme Court, in the case of Engineering Analysis Centre of Excellence Pvt Ltd [supra], reimbursement towards software charges are not taxable as royalty as well. We, accordingly, direct the Assessing Officer to delete the impugned addition. Ground No. 3, with all its sub grounds is allowed.

Ground No. 4 relates to non issue of refund and interest on income tax refund u/s 244A of the Act.

The assessee contends that it has not received any refund in its bank account and, therefore, there is no question of charging any interest u/s 244A of the Act.

We direct the Assessing Officer to verify the same and decide the issue afresh.

Ground Nos. 5 and 6 relate to the levy of interest u/s 234D of the Act and 234A of the Act.

This ground is consequential in nature. We direct the Assessing Officer to decide the issue afresh as per provisions of law.

In the result, the appeal of the assessee in is allowed.