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Income Tax Appellate Tribunal, AHMEDABAD “D” BENCH
Before: Shri Waseem Ahmed & Shri Siddhartha Nautiyal
आदेश/ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:-
These are cross appeals filed by the Department and the assessee against the order of the Ld. CIT(Appeals)-13, Ahmedabad in Appeal no. CIT(A)-13/Intl.Taxn./Ahd/115/2017-18 vide order dated 29/03/2019 passed for the assessment year 2013-14.
Department has raised the following grounds of appeal:-
“1. That the Ld. CIT(A) has erred in law and on facts in holding that the Clinical Trials & Testing services provided by Aigoritheme Pharma Inc-USA, Hiltop Research- USA, Lambada Theraeutic Research-Cananda, Novum Pharmaceuticals Research-USA and Polysight LLC-USA, does not fall in definition of fees for technical services in view of "make available" clause in the concerned treaty is not satisfied.
That the Ld. CIT(A) has erred in law and on facts in holding that "make available clause" can be satisfied only when there is transfer of technology in the sense that the use of service should be enabled to do the same thing next time without recourse to the service provider without appreciating that development and transfer of a technical plan or technical design would also qualify as FTS as per the treaties.
That the Ld. CIT(A) has erred in law and on facts in holding that payment made for Clinical Trials and Testing Services does not fall in definition of fee for technical service in view of "make available" clause in the concerned treaty although Assessing Officer has given a categorical finding that make available clause is not
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necessary for treating it as fee for technical services as the development and transfer of a technical plan or technical design is also happening by way of submission of all raw data, documentation, and other technical study related documents to the assessee by the sponsor.
That the Ld. CIT(A) has erred in law and on facts in holding that the issue is covered in favour of the assessee by the judgment of Hon'ble ITAT in assessee's own case for A.Y 2010-11 without appreciating that the Hon'ble ITAT has not dealt with the second portion of FTS clause which deals with development and transfer and transfer of a technical plan or technical design even when it was specifically dealt with by the AO.
That the order of Ld. CIT(A) suffers from perversity as the Ld CIT(A) has failed to deal with the arguments of the AO that the assessee's case is covered by the second portion of clause 12 of the DTAA clause which deals with development and transfer and transfer of a technical plan or technical design even though the CIT(A) has taken note of selective portion of AOs order.
That the Ld.CIT(A) has erred in law and on facts in holding that the without prejudice argument of the AO of treating these payments as royalty is nothing but to circumvent the otherwise binding order of ITAT is without any basis and bad in law.
That the Ld.CIT(A) has erred in law and on facts in coming to a conclusion that the said payments cannot be treated as royalty either as per the provision of the Act or the DTAA with USA and Canada without elaborating/discussing as to why it cannot fall in the definition of royalty at all.
That the Ld. CIT(A) has erred in law and on facts in not deciding the without prejudice argument of the AO of treating this payments as royalty which the CIT(A) is duty bound.
That the Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs.1515241/- which was paid to M/s. Cambridge Soft
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Corporation, USA as fees for technical services as it does not satisfy make available.
That the department craves leave to add or alter any further grounds of appeal.
Total tax effect Rs. 1,43,09,315/-”
The assessee has raised the following grounds of appeal:-
“Aggrieved by the order u/s. 250 passed by the CIT(A)-13, Ahmedabad, the Appellant wishes to raise the following Grounds of Appeal for the kind adjudication of the Hon'ble ITAT:
That the learned CIT(A) erred in law and on facts in holding that the payments by the appellant to Cliantha Research Mexico amounting to Rs. 90,49,625/- were in the nature of technical services as per Sec. 9(1)(vii) of the Income Tax Act and therefore, liable to TDS u/s. 195.
That the learned CIT(A) failed to appreciate the appellant's contention that the said payments were covered under the exception provided under clause (b) to Sec. 9(1)(vii) of the I.T. Act and therefore, no TDS liability was attracted u/s. 195.
The appellant prays that leave may be granted to add, amend or alter any of the grounds at any time before the final hearing of the appeal.”
The brief facts of the case are the assessee is a global pharmaceutical company having its principal place of business at Ahmedabad, India. With a core competence in the field of healthcare, the assessee provides healthcare solutions ranging from formulations, active pharmaceutical ingredients and animal healthcare products etc. During the impugned assessment year, the
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assessee made remittances to certain non-residents under different heads which according to the assessing officer were liable for tax withholding in terms of section 195 of the Income Tax Act, 1961 (the Act). On verification of the remittances made and withholding tax deducted by the assessee, the AO was of the view that the assessee had made remittances to four parties of USA, one-party of Canada and one-party of Mexico for clinical trials, in respect of which no tax was deducted at source. Moreover, in respect of one- party belonging to USA, the payments were made towards consultancy fees, which according to the assessing officer were in the nature of FTS (fee for technical services). Accordingly, the AO was the view that the assessee was liable to deduct taxes on such a remittances made to overseas parties and he raised the tax demand of � 96,59,334/- and interest amounting to � 62,88,969/- (amounting to a total of � 1,59,48,303/-).
In appeal, Ld. CIT(Appeals) allowed relief in respect of payments made for clinical trials to parties in USA and Canada on the ground that in the instant set of facts, the test of “make available” as provided under the India-USA and India-Canada Tax Treaty is not satisfied. The Ld. CIT(Appeals) held that in respect of the above payments made to companies situated in the USA and Canada totaling to � 7,63,69,141/-, there was no intention that any technology shall be “made available” to the assessee company in lieu of such payments in a manner that the assessee company is enabled to apply the technology without depending on the overseas companies from whom such services have been availed. The Ld. CIT(Appeals) held that the common thread in tax treaties of USA and Canada is the requirement of “make available” clause to invoke the
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taxability under the head “fee for technical services/ included services”. Thus, where the recipient of technical services does not get equipped with the knowledge or expertise and the recipient would not be able to apply the technology in future independently without support from the service provider, it will not be a case of technical service having been “made available”. The Ld. CIT(Appeals) held that that in the instant facts there is no transfer of any skill or knowledge to the assessee on the issuance of study reports by these overseas entities to whom payments have been made by the assessee company. The Ld. CIT(Appeals) further observed that on this same issue, in the assessee’s own case for assessment year 2010-11, the ITAT Ahmedabad had decided the issue in the assessee’s favour. Thus, in respect of payments made towards clinical trials by the assessee to entity situated in USA and Canada, Ld. CIT(Appeals) held that no taxes are required to be withheld. While granting relief, Ld. CIT(Appeals) made the following observations:
“7.3 I am inclined to agree with the contentions of the Appellant that Bioanalytical services are not "make available" in nature on account of the following reasons: • The Appellant who is utilizing the services will not be able to make use of the technical knowledge, etc. by itself in its business or for its own benefit and without recourse to non resident parties in USA and Canada in future. • The technical knowledge, experience, skill, etc. will not remain with the Appellant after the rendering of the services has come to an end. • A transmission of the technical knowledge, experience, skill, etc. from the person rendering the services to the person utilizing the same is not contemplated under the agreement between Appellant and the non -resident parties in USA and Canada.
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• There is no durability or permanency of the result of the 'rendering of services' envisaged which will remain at the disposal of the Appellant. • The fruits of the services do not remain available to the Appellant in any concrete shape such as technical knowledge, experience, skill, etc. • There is no transfer of either technical knowledge or skill and experience or know-how or process to the Appellant.
Since there is no making available of technical skill, knowledge or expertise or plans or designs in the present case, the payment made by the Appellant do not fall under Article 12.
Moreover, Algorithme Pharma the non-resident party whose sample agreement has been reproduced by the AO in his Order, was one of the parties in dispute in A.Y. 2010-11 and the CIT (Appeals) as well as the Hon'ble ITAT Ahmedabad Bench has decided the issue in favour of the appellant.
It is further noted that in the appellant's own case for A.Y. 2010-11, involving identical issue and some common non-resident parties, the ITAT Ahmedabad Bench, has held in favour of the appellant as under:
"We find that the common thread in all these tax treaties is the requirement of 'make available' clause. As learned counsel rightly puts it, its not simply the rendition of a technical service which is sufficient to invoke the taxability of technical services under the make available clause. Additionally, there has to be a transfer of technology in the sense that the user of service should be enabled to do the same thing next time without recourse to the service provider. The services provided by non-residents did not involve any transfer of technology. It is not even the case of the Assessing Officer that the services were such that the recipient of service was enabled to perform these services on its own without any further recourse to the service provider. It is in this context that we have to examine the scope of expression 'make available'.
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As for the connotations of make available clause in the treaty, this issue is no longer res Integra. There are at least two non- jurisdictional High Court decisions, namely Hon'ble Delhi High Court in the case of DIT v. Guy Carpenter & Co Ltd. [2O12J 346 ITR 5O4/2O7 Taxman 121/20 taxmann.com 8O7 and Hon'ble Karnataka High Court in the case of CIT v. De Beers India Minerals (P.) Ltd. [2012] 346 ITR 467/208 Taxman 406/21 taxmann.com 214 (Kar.) in favour of the assessee, and there is no contrary decision by Hon'ble jurisdictional High Court or by Hon'ble Supreme Court.....
The tests laid down by Hon'ble Court were clearly not satisfied. The mere fact that there were certain technical inputs or that the assessee immensely benefited from, these services, even resulting in value addition to the employees of the assessee, is wholly irrelevant. The expression 'make available' has a specific meaning in the context of the tax treaties and there is, thus, no need to adopt the day to day meaning of this expression, as has been done by the Assessing Officer. We also find that the issue regarding taxability of these services is also covered, in favour of the assessee, by the order dated 3Oth November 2015 passed by a coordinate bench. In view of these discussions, and as we concur with the well-reasoned findings of the learned CIT (A), we approve the conclusions arrived at by the learned CIT (A) and decline to interfere in the matter on this count as well. The order of the CIT (A) stands confirmed." It is pertinent to mention here that, at Para 12 of his Order, the A.O. himself has mentioned that the case of the appellant is covered by the decision of the Hon'ble ITAT in the appellant's own case for A.Y. 2010-11 and that the order is being passed to keep the issue alive, since the department has filed an appeal before the Hon'ble Gujarat High Court. Respectfully following the binding decision of Hon'ble Ahmedabad ITAT in the appellant's own case in A.Y. 2010-11 on identical issues, the payments made to non-resident parties are not liable to TDS u/s. 195 of the I.T. Act, since they are not in the nature of fees for
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technical services as per the relevant articles of the DTAAs with USA and Canada.”
Regarding the alternate contention raised by the AO, the USA and Canada may also in the alternative qualify as Royalty, Ld. CIT(Appeals) held that looking into the nature of payments, if the very nature of clinical trials and testing services is considered, it becomes evident that the services can only come within the meaning of “fee for technical services” cannot be treated as “Royalty”. The Ld. CIT(Appeals), while granting relief, made the following observations:
“I also agree with the submission of the AR that the alternative contention of the AO holding that the payments are in the nature of Royalty, by drawing references to certain clauses of the Agreement is to circumvent the otherwise binding effect of the ITAT Order in the appellant's own case, on this very issue, for A.Y. 2010-11. If we consider the very nature of the Clinical Trials & Testing Services, it is quite clear that these services can fall only within the- meaning of 'fees for technical services' and cannot be treated as 'royalty', within the meaning of the provisions of either the Income tax Act or the DTAAs with USA & Canada.”
With respect to payment made by the assessee to Cambridge and soft Corporation, USA of � 15,15, 241/- for consultancy services, the Ld. CIT(Appeals) again allowed relief to the assessee on the ground that “make available” clause is not satisfied in the instant set of facts. While granting relief, Ld. CIT(Appeals) made the following observations:
“Payment to party in USA for consultancy services 8.1 During the year under consideration, the appellant has made a payment to Cambridge Soft Corporation, USA of Rs. 15,15,241/-,
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which is in the nature of fees for consultancy or professional services provided by the non-resident party. As already held by me supra, the said payment cannot be held to be in the nature of Fees for Technical Services, within the meaning of the language of the DTAA between India and USA. Therefore, the appellant cannot be treated as being an assessee in default u/s. 201(1).”
With respect to payment for clinical trials to party situated in Mexico amounting to � 90,49,625/- to Cliantha Research Mexico, the counsel for the assessee argued before Ld. CIT(Appeals) that the case of the assessee is falling under the exception provided in section 9(1)(vii)(b) of the Act read with the clarificatory amendment under Explanation 2, which is to the effect that since the services were both rendered as well as utilised outside India, the same are not chargeable to tax in India and hence there was no liability to withhold taxes on these payments. In support, the counsel for the assessee relied upon the case of Delhi High Court in the case of the DIT v. Lufthansa Cargo India 60 Taxman.com 187 (Delhi). However, Ld. CIT(Appeals) dismissed assessee’s argument on the ground that there is a difference between the “source of the “income” outside India and the “source of receipt of the money” outside India. The Ld. CIT(Appeals) relied on the case of CIT v Havells India Ltd 21 Taxman.com 476 (Delhi) when it was held that in order to fall within second exception provided in section 9(1)(vii)(b), the source of income, and not source of receipt, should be situated outside India. In this case it was held that in view of the fact that export activity having taken place in India, the source of income was located in India and not outside India. Mere fact that the export proceeds are marinated from persons situated outside India did not constitute them as a
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source of income outside of India. The income component of the monies or the export receipts is located situated in India. There is a distinction between the source of the income and the source of receipts of the monies. In order to fall within the second exception provided in section 9(1)(vii)(b) of the Act, the source of the income, and not the source of receipt, should be situated outside India. The CIT held that in order to fall within the exception of section 9(1)(vii)(b) of the Act, the assessee should have utilised the services in the business carried on outside India or making or earning income from any source outside India. In this case, the assessee is an exporter of products in India and all the activities related to the business of the assessee are carried out in India. The assessee has entered into a supply and distribution agreement with Zydus Pharmaceuticals Mexico, with the objective of promoting its businesses in Mexico. The business set up of the assessee is situated in India. Mere doing the export activity from India cannot be treated as business carried outside India. Being an exporter and customers situated outside India and receiving payment against export sales, is only a source of receipt outside India but not a source of “income” outside India. Accordingly, since the assessee is an exporter of products in India and all the activities related to the business of the assessee are carried out in India and source of income is with India, the assessee does not fall within the exception of section 9(1)(vii)(b) of the Act. The Ld. CIT(Appeals) further held that the India-Mexico Treaty does not have the “make available” clause to invoke the taxability under the “fee for technical/included services” whereas in the tax treaties of USA and Canada that there is a requirement of “make available” clause to invoke the taxability under the head “fee for technical/included services”. Therefore,
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mere rendering of technical services invokes the taxability under the head “fee for technical/included services” in the case of India-Mexico tax treaty. While deciding against the assessee, Ld. CIT(Appeals) made the following observations:
“To fall within the exception of Section 9(l)(vii)(b), it is required that the Appellant should have utilized the services in a business carried on outside India or making or earning income from any source outside India. In this case the Appellant is an exporter of products in India and all the activities related to the business of the Appellant are carried out in India. The Appellant has entered into Supply & Distribution Agreement with Zydus Pharmaceuticals Mexico, with the objective of promoting its business in Mexico. The business setup of the Appellant is situated in India. Mere doing the export activity from India cannot be treated as business carried outside India. Being an exporter and customers situated outside India and receiving payment against export sales, is only a source of receipt outside India but not a source of Income outside India. After going through the aforementioned judicial pronouncements, 1 am persuaded to hold that the case of the Appellant does not fall within the exception of Section 9(l)(vii)(b) because the Appellant is an exporter of products in India and all the activities related to the business of the Appellant are carried out in India and source of income is within India.
It is noted that India-Mexico DTAA does not have "make available clause" and there is no requirement of 'make available' clause to invoke the taxability under 'fees for technical/included services' whereas in tax treaties of USA and Canada there is requirement of 'make available' clause to invoke the taxability under 'fees for technical/included services'.
Mere rendering of technical services invoke the taxability under 'fees for technical services' in case of India-Mexico DTAA. The Appellant has taken the plea that the Appellant's case fall under
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exception of Section 9(l)(vii)(b) to escape the liability under 'fees for technical services' in case of India-Mexico DTAA. It is an admitted position that bio-analytical services /clinical trial services are technical services. In India-USA and India-Canada DTAA, there is an additional requirement of 'make available' clause to invoke the taxability under 'fees for technical/included services’ whereas such requirement of Make-Available is absent in India-Mexico DTAA. Therefore, the payment made by the Appellant to the Mexico Company is in the nature of technical services taxable under Article 12 as Tees for technical services'.
9.4 Therefore, the payment made by the Appellant to the Mexico Company is in the nature of technical services as per section 9(l)(vii) and explanation of section 9(2) of the Income Tax Act, 1961 as well as under tax treaty under Article 12. Therefore, TDS is applicable u/s 195 of the Act and the Appellant is in default u/s 201(1)/201(1A) for not deducting TDS u/s 195 of IT Act, 1961 on payment made to Cliantha Research Mexico, Mexica for technical services during F.Y. 2012-13. The order of the A.O. is upheld.
As a result, this ground of appeal of the appellant is dismissed.”
Both the Department and the assessee are in appeal against the aforesaid order of Ld. CIT(Appeals) before us.
We shall first discuss the Departments grounds of appeal.
The arguments of the Department are primarily to the effect that that there is no requirement to satisfy the condition of “make available” under the India-USA and India-Canada tax treaty, as this aspect has been specifically observed by the AO during the course of assessment proceedings. The Department has further argued that the Ld. CIT(Appeals) has erred in facts and in law in holding that “make available” clause can be
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satisfied only when there is transfer of technology in the sense that the use of service should enable the service recipient to do the same thing without recourse to the service private provider. Department has further argued that the Ahmedabad ITAT in the assessee’s own case for assessment year 2010- 11 has not dealt with the second portion of FTS clause which deals with development transfer of technical plan or technical design, whereas the AO had specifically dealt with the same. In the alternate, the Department argued that the payment should qualify as payment for “royalty” and hence liable for deduction of tax at source. In response, the counsel for the assessee relied on the observations made by the Ld. CIT(Appeals) in the appeal order.
We have heard the rival contentions and perused the material on record. In our view, this issue has been elaborately discussed by the ITAT Ahmedabad in the assessee’s own case for assessment it 2010-11, wherein the ITAT has made the following observations in respect of requirement to withhold taxes for clinical trials for payments made to entities situated in the USA and Canada:
We find that the common thread in all these tax treaties is the requirement of 'make available' clause. As learned counsel rightly puts it, its not simply the rendition of a technical service which is sufficient to invoke the taxability of technical services under the make available clause. Additionally, there has to be a transfer of technology in the sense that the user of service should be enabled to do the same thing next time without recourse to the service provider. The services provided by non residents did not involve any transfer of technology.
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It is not even the case of the Assessing Officer that the services were such that the recipient of service was enabled to perform these services on its own without any further recourse to the service provider. It is in this context that we have to examine the scope of expression 'make available'. 9. As for the connotations of make available clause in the treaty, this issue is no longer res integra. There are at least two non- jurisdictional High Court decisions, namely Honble Delhi High Court in the case of DIT v. Guy Carpenter & Co Ltd. [2012] 346 ITR 504/207 Taxman 121/20 taxmann.com 807 and Honble Karnataka High Court in the case of CIT v. De Beers India Minerals (P.) Ltd. [2012] 346 ITR 467/208 Taxman 406/21 taxmann.com 214 (Kar.) in favour of the assessee, and there is no contrary decision by Honble jurisdictional High Court or by Honble Supreme Court. In De Beers India Minerals (P.) Ltd.'s case (supra), Their Lordships posed the question, as to "what is meaning of make available", to themselves, and proceeded to deal with it as follows: 'The technical or consultancy service rendered should be of such a nature that it "makes available" to the recipient technical knowledge, know-how and the like. The service should be aimed at and result in transmitting technical knowledge, etc., so that the payer of the service could derive an enduring benefit and utilize the knowledge or know- how on his own in future without the aid of the service provider. In other words, to fit into the terminology "making available", the technical knowledge, skill?, etc., must remain with the person receiving the services even after the particular contract comes to an
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end. It is not enough that the services offered are the product of intense technological effort and a lot of technical knowledge and experience of the service provider have gone into it. 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 the future without depending upon the provider. Technology will be considered "made available" when the person acquiring the service is enabled to apply the technology. The fact that the provision of the service that may require technical knowledge, skills, etc., does not mean that technology is made available to the person purchasing the service, within the meaning of paragraph (4)(b). Similarly, the use of a product which embodies technology shall not per se be considered to make the technology available. 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 is satisfied.' 10. As we have noted earlier, it is not even the case of the Assessing Officer that the assessee, i.e. recipient of services, was enabled to use these services in future without recourse to the service providers. The tests laid down by Hon'ble Court were clearly not satisfied. There mere fact that there were certain technical inputs or that the assessee immensely benefited from these services, even resulting in value addition to the employees of the assessee, is wholly irrelevant. The expression 'make available' has a specific meaning in the context of the tax treaties and there is, thus, no need to adopt the day to day
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meaning of this expression, as has been done by the Assessing Officer. We also find that the issue regarding taxability of these services is also covered, in favour of the assessee, by the order dated 30thNovember 2015 passed by a coordinate bench. In view of these discussions, and as we concur with the well reasoned findings of the learned CIT (A), we approve the conclusions arrived at by the learned CIT (A) and decline to interfere in the matter on this count as well. The order of the CIT (A) stands confirmed. 11. Ground no. 1 is thus dismissed.
11.1 Further, in the case of ITO v. Cadila Healthcare Ltd. [2017] 77 taxmann.com 309 (Ahmedabad - Trib.), it was held that where bio analytical services provided by non-residents did not involve any transfer of technology and recipient of services where not enabled to use these services in future without recourse to service provider, said services would not be regarded as FTS. In the case of ITO v. B.A. Research India (P.) Ltd. [2016] 70 taxmann.com 325 (Ahmedabad - Trib.), ITAT held that where non-resident companies located in USA rendered bio-analytical services on samples provided by assessee, since there was nothing on record suggesting that services rendered to assessee were made available to it and assessee was able to apply same on its own, said services would not fall within purview of 'included services' under article 12(4)(b). In the case of ITO v. Veeda Clinical Research 144 ITD 297 (Ahmedabad Tribunal), it was held that unless there is “transfer of technology” involved in the technical services rendered by foreign entity, the “make available” clause is not satisfied and
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hence, consideration for services cannot be taxed under article 13 of India- UK DTAA.
11.2 In view of the above decisions, we are of the considered view that in the instant set of facts, the condition of “make available” under the India USA/India Canada tax treaty is not being met, and accordingly, the services do not qualify as “fee for technical services/fee for included services”. Having held so, in our view, Ld. CIT(Appeals) has not erred in facts and in law in coming to the conclusion that there is no requirement to withhold tax at source in respect of payments for clinical trials assessee services do not qualify as fee for technical services/fee for included services.
11.3 Further, regarding the alternate argument of the Department that the payment should qualify as “royalty”, this aspect has been specifically dealt with by the Ld. CIT(Appeals), and we find no infirmity in the same. In the instant facts, the payment is towards clinical trials/ testing conducted by overseas company and they cannot be termed as falling under any of the specific clauses of royalty under the India USA/India Canada Tax Treaty. We further note that in the instant set of facts, the alternate argument of the Department that the second portion of the FTS clause (which deals with development transfer/transfer of a technical plan or technical design) also stands attracted in the present set of facts is also without any basis. In the instant set of facts, the assessee has entered into an agreement for provision of clinical testing services, and there is no agreement for development or transfer of a technical plan or design, and hence, in our considered view, there is no scope for invoking the said provision in the instant set of facts.
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11.4 In the case of Anapharm Inc., In re[2008] 174 Taxman 124 (AAR), the applicant was a company incorporated in Canada. It provides clinical and bioanalytical services to assist pharmaceutical companies around world in development of new drugs or generic copies of drugs already being marketed. It has entered into agreements with two Indian pharmaceutical companies for rendering said services. In terms of agreements, applicant provides to recipients only final results and conclusions of data of bioequivalence tests and not clinical procedure, analytical methods, etc., which are proprietary items of applicant. The clients pay fees to applicant in lieu of above services. The AAR held that fees received by applicant for services provided to Indian companies cannot be considered to be 'fees for included services' within meaning of article 12(4) of the treaty between India Canada. The AAR further held that fee paid by Indian companies to applicant in respect of bioequivalence tests conducted by it is in nature of 'business profits' under article 7 of DTAA and same is not taxable in India, as applicant does not have a permanent establishment in India. On the aspect whether the payments may qualify as royalty under the India-Canada tax treaty, AAR made the following observations on this aspect:
The submission of the revenue is that the payment of fees in the instant case can also be regarded as 'royalty income' under article 12, for which it places reliance on paragraph 11 of OECD Commentary and page 790 of Klaus Vogel on Double Taxation Conventions. Paragraph (3) of the said article 12 states that 'royalty' is payment of consideration for the use of, or the right to use any copyright, patent, secret formula, process, information concerning industrial,
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commercial or scientific experience. The paragraph (2) of article 12 of the OECD Model Convention also defines 'royalty' in a manner similar to paragraph (3) of article 12 of the DTAA. While discussing paragraph (2) of article 12 of the OECD Model Convention, OECD Commentary at paragraph 11 states that information concerning industrial, commercial or scientific experience alludes to the concept of know-how which is all undivulged technical information that is necessary for the industrial reproduction of a product or process directly. Know-how represents what a manufacturer cannot know from mere examination of the product and mere progress of the technique. The commentary further states that a know-how contract differs from the contract for the provision of services, in which one party undertakes to use the customary skills on its calling to execute the work itself for the other party. Payment made under the latter contract generally falls in the category of 'business income'. In the instant case, the agreements of the applicant fall in the latter category, as it uses its experience and skill itself in conducting the bioequivalence tests, and provides only the final report containing conclusions to the clients. The information concerning scientific or commercial experience of the applicant or relating to the method, procedure or protocol used in conducting bioequivalence tests is not being imparted to the pharmaceutical companies and the consideration is not paid for that purpose. On the basis of the final report, the pharmaceutical companies will not be able to find out what method, procedure or protocol was used in conducting the tests. Moreover, the test reports are drug specific. Hence, the
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material furnished by the applicant will not in any way help the customers to facilitate further research and development of new drugs, as contended by the revenue. As such, the fee received by the applicant is to be treated as 'business income' and not as 'royalty income'. Klaus Vogel at page 790 of his commentary on Double Taxation Conventions states that what distinguishes a contract for provision of know-how from a contract for rendering advisory services is the concept of 'imparting'. An adviser or consultant, rather than imparting his experience, uses it himself. All that he imparts is the conclusion that he draws from his own experience. His obligation to observe secrets, or even his own interest in retaining its means of production will prevent a consultant from parting with his experience. The above observation of Klaus Vogel rather than advancing the case of revenue, goes against it.
11.5 In the case of Diamond Services International (P.) Ltd. v. UOI [2008] 169 Taxman 201 (Bombay), the assessee-company was a tax resident of Singapore.The Gemological Institute of America (GIA), which does work of grading diamonds and issues certificates stating properties such as colour, carat, etc., of diamonds, announced an expanded consolidation service known as GIA Lab Direct Programme, whereby customers interested in having their diamonds graded by GIA would have to drop their stones off at most conveniently located authorized 'Lab Direct' consolidators/ participants, would provide prompt and secure transportation to and from GIA's laboratory located in USA. The assessee was appointed as sub-participant of Lab Direct Programme in respect of India. The obligations
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of assessee were to collect and ship diamonds on behalf of clients in India and to collect payments from them and forward same to GIA. The assessee made an application to Deputy Director to grant a certificate under section 197 to receive diamond grading and certification charges from Indian customers without deduction of tax at source. The Deputy Director rejected assessee's claim, holding that activities of GIA indicated transfer of commercial experience in shape of diamond grading report and was covered by definition of 'royalty' within meaning of Explanation 2(iv) to section 9(1)(vi) and article 12 of DTAA between India and Singapore and, consequently, impugned receipt in hands of assessee was liable to deduction of tax at source. The Bombay High Court held that 'royalty' under article 12 envisages transfer of 'industrial or commercial experience' from assignor to assignee for a consideration. Therefore, since there was nothing on record to show that GIA, through its grade report, was assigning or transferring any industrial or commercial experience to its customers, payment in question would not fall within expression 'royalty' and, therefore, action of Deputy Director in refusing certificate was clearly without jurisdiction and, consequently, impugned order was to be set aside.
11.6 In the case of Dr. Reddy's Laboratories Ltd. v. ADIT [2017] 78 taxmann.com 63 (Hyderabad - Trib.), the assessee-company, engaged in manufacture of pharmaceutical products, made payment to a US contract research organisation (CRO) for conducting clinicaltrials of its products and submit their reports. The ITAT held that since Applicant had only provided final results to its Indian clients by using highly sophisticated bio-analytical
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know-how, without providing any access whatsoever to clients to such know-how, fee received by it was business income and not fee for technical/included services or royalty. The ITAT made the following observations while passing the order:
The applicant uses its experience and skill itself in conducting the bioequivalence tests, and provides only the final report containing conclusions, to the client. The information concerning scientific or commercial experience of the applicant or relating to the method, procedure or protocol used in conducting bioequivalence tests is not being imparted to the pharmaceutical companies and the consideration is not paid for that purpose. On the basis of the final report, the pharmaceutical companies will not be able to find out what method, procedure or protocol was used in conducting the tests. Moreover, the test reports are drug specific. Hence the material furnished by the applicant will not in any way help the customers to facilitate further research and development of new drugs as contended by the Revenue. As such, the fees received by the applicant are to be treated as business income and not royalty income.
11.7 In view of the above, we are of the considered view that the alternative argument of the department that the services may qualify as “royalty” is not maintainable in the instant set of facts for detailed reasons mentioned above.
In the result, the appeal of the Department is dismissed.
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Assessee’s Grounds of Appeal:
The assessee has contended before us that the payments made by the assessee to Cliantha research Mexico amounting to � 90,49,625/- are not in the nature of technical services u/s 9(1)(vii) of the Act. In addition, / in the alternative, the said payments were covered in the exception provided in section 9(1)(vii)(b) of the Act and hence no taxes were required to be deducted on such payments.
In our view, in the instant set of facts, the services clearly qualify as “technical services” and especially in the absence of “make available” in the India Mexico tax treaty, the same in our view would qualify as technical services and hence there was a requirement of deduction of taxes at source at the time of payment in respect of these services.
With regards to the alternate argument of the assessee that the said payments are covered in the exception provided in section 9(1)(vii)(b) of the Act and hence no taxes were required to be deducted on such payments, this aspect has been discussed in detail by the Ld. CIT(Appeals) in the appeal order, which has been reproduced by us in the preceding paragraphs. We find no infirmity in the same, and accordingly the appeal of the assessee stands dismissed. We are of the considered opinion, that in the instant set of facts, the assessee does not come within the purview of Exception provided in section 9(1)(vii)(b) of the Act.
In the result, the appeal of the assessee is dismissed.
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In the combined result, both the appeals of the Department and Assessee are dismissed.
Order pronounced in the open court on 09-09-2022
Sd/- Sd/- (WASEEM AHMED) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 09/09/2022 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से,
उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद