M/S. PURE SOFTWARE PVT. LTD.,NEW DELHI vs. ITO, NEW DELHI

Being aggrieved by the assessment order, the assessee field appeal before the CIT(A).

The Ld. AR submitted that disallowance u/s 40(a)(ia) will be applicable when tax deductable at source under Chapter XVII B has not been deducted under Chapter XVII B. The relevant Section is Section 195 which requires any person to deduct income tax from any payment made to a non-resident when such payment is chargeable under the provisions of the Income Tax Act. Thus, no deduction of tax at source will be applicable when the payment of the non- resident is not taxable in India. The charging Section is Section 5(2) which states that if any income is received or deem to be received in India in the hands of a non-resident or accrues or arises or is deem to accrue or arise in India to the non-resident, same shall be taxable in India. Explanation 1 to Section 5 states that income accruing or arising outside India shall not be deem to be received in India by reason only of the fact that it is taken into account in a balance-sheet prepared in India. In case of the assessee company, two non-resident foreign companies, one by the name of J2S INC, USA and another by the name of NAVOS, Belgium were appointed to locate foreign buyers to whom the assessee company could sale its services. Thus, both the foreign companies rendered order procurement services outside India which is their business activity. Invoices received from the parties also show that services rendered by them were sales procurement services and not fees for technical services or royalties. The Ld. AR submitted that the Assessing Officer wrongly alleged in Para 2.3 of his order that services rendered by the above parties where from royalties or fee for technical services. It shows that the Assessing Officer himself was not show as to whether the income received by non residence was royalty or fee for technical services. In Para 2.4 of his order, the Assessing Officer quoted Article 12 of the DTAA between India and Belgium which has given the definition of both royalty and fees for technical services. The Ld. AR submitted that in a case of assessee company both the foreign parties for rendered or procurement services as their business activity and for which they were paid commission/retainer ship fee. These services can neither be called as technical or Consultancy Services nor as a royalty as per definition given in the relevant Article to DTAA. None of these two companies were having any office or permanent establishment in India. No payment was received by these non-resident parties in India and thus their income was not taxable in India and accordingly Sub-Section 2 of Section 5 was not attracted and consequently Section 195 of the Act was not applicable. Even Section 9 of the Act is not applicable as the amount received by both the non residence was neither royalty nor fees for technical services as alleged by the Assessing Officer. The payments were business provides of both the non-resident assessee’s and as per Article 7 of the DTAA between India and USA, business profit shall be taxable only in the contracting state unless the enterprise carries on business in the other contacting states through a permanent establishment situation therein. Both the non-resident assessee’s earn their income from the assessee company as their business income outside India they carrying given any business in India through a permanent establishment and thus their income from the assessee company was covered by Article 7 and was taxable in their respective contracting states and not in India. The Ld. AR submitted that as per provisions of Section 90(2) provisions of DTAA shall be applicable with regard to applicability in the hands of non-resident in as held by the Apex Court in Azadi Bachao Andolan 263 ITR 706 according to which the provisions of DTAA over rights income tax in any cases where the DTAA is beneficial to non residence. The Ld. AR relied upon the following judicial decisions (i) Gama Industries Coimbatur Ltd. Vs. CIT (2012) 54 SOT 104 (Che. Tri.) (ii) Grasim Industries Ltd. & ors Vs. CIT(A) (2011) 332 ITR 276 (ii) ACIT Vs. Paradigim Geo Physical Pvt. Ltd. (2008) 11 DTR 174 (Del. Tri.).

The Ld. AR further submitted that the Assessing Officer was not correct in attracting provisions of Section 9(1)(vii) by treating the payment as royalty and fees for technical services whereas the fact was that in the previous year relevant to the Assessment Year 2012-13 only the retainer fee as per the agreement was paid and even no order procurement services in real terms were materialized by the said non-resident and whenever such services were rendered in future. Same will fall in the Explanation Clause of Sub Clause B of Clause (vii) of Sub Section 1 of Section 9 of the Act on the ground that income will be from the source outside in India. Both the non-resident assessee derived their income as their business activity and his business profit Article 7 of DTAA between India and USA also Article 7 of DTAA between India and Belgium were applicable to determine as to where business income will be taxable. Therefore, none of the provisions of the Section 9 of the Act will be applicable in the present case, business income cannot be treated as fees for technical services as alleged by the Assessing Officer. Even commission income has also been considered as business income as held by AAR in Tele soft Pvt. Ltd 267 ITR 725 recently CBDT has issued Circular No. 4/15 dated 26/3/2015 emphasizing legislative intent with regard to Section 9 read with Section 195 of the Act. Legislative intend is very clear as to Section 5 including Sub Section 2 of the Section 5 wherein it is clearly state that if income does not accrue or arise in India nor is it received in India income in the hands of non- resident will not be taxable in India. In such a situation, neither Section 9 is attracted nor Section 195 of the Act. Therefore, the Ld. AR submitted that no TDS is required to be deducted on the payments made to non residence by the assessee company and thus question of disallowance u/s 40(a)(ia) does not arise.

The Ld. DR submitted that the CIT(A) as well as the Assessing Officer was correct in making addition. The Ld. DR submitted that it is evident from the terms of the agreement that consulting services are the running theme in the agreements drawn up with the non-residents. The services provided is in the nature of advisory services based upon the skills of the non-resident. The agreements clearly are in the nature of end to end services beginning with consulting and concluding with invoices being raised by the assessee company on the identified clients. The Ld. DR further submitted that it is only an exercise in semantics under taken by the assessee company to escape the provisions of section 9(1)(vii) of the Act which includes nature of such payments as fees for technical services obligating the assessee to deduct tax as per provisions for section 195(1) of the Act. If it was only an order procurement agreement, it is not understood as to why payments were made subject to TDS as applicable. The Ld. DR relied upon the decision of Hon’ble Apex Court in case of GVK Industries vs. ITO (2015) 54 taxmann.com 347 (SC) as well as the decision of the Hon'ble Supreme Court in case of Transmission Corporation of AP Limited and another Vs. CIT(A) (1999) 239 ITR 587. The Ld. DR also relied on the intention of the parliament relating to the insertion and amendment of Section 9 & Section 195 of the Act.

We have heard both the parties and perused all the relevant material available on record. It is pertinent to note here that in case of the assessee company, two non-resident foreign companies, one by the name of J2S INC, USA and another by the name of NAVOS, Belgium were appointed to locate foreign buyers to whom the assessee company could sale its services. Thus, both the foreign companies rendered order procurement services outside India which is their business activity. Invoices received from the parties also show that services rendered by them were sales procurement services and not fees for technical services or royalties. The contention of the Ld. DR that the services provided is in the nature of advisory services based upon the skills of the non-resident, is contrary to the terms and conditions of the agreements. In the previous year relevant to the Assessment Year 2012-13 only the retainer fee as per the agreement was paid and no order procurement services in real terms were materialized by the said non-resident. Thus, the Explanation Clause of Section 9 (vii) of the Act will not be applicable on the ground that income was from the source outside India. Both the non-resident assessee derived their income as their business activity and their business profit is determined under Article 7 of DTAA between India and USA as well as from Article 7 of DTAA between India and Belgium and will then decide as to where business income will be taxable. Therefore, none of the provisions of the Section 9 of the Act will be applicable in the present case, business income cannot be treated as fees for technical services as held by the Assessing Officer. Therefore, the Assessing Officer as well as CIT(A) was not correct in treating the “order procurement services” rendered by the non-residents and commission/retainer fee as royalty and fees for technical services. The decisions of the Hon’ble Apex Court relied upon by the Ld. DR are factually different as the transactions was between India and Switzerland and not between two different non-resident as is in the present case. The order of the CIT(A) is set aside. Thus appeal of the assessee is allowed.

In result, appeal of the assessee is allowed. Order pronounced in the Open Court on 19th June, 2019.