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Income Tax Appellate Tribunal, “I” Bench, Mumbai
O R D E R
PER RAVISH SOOD, JM
The present appeal filed by the assessee company is directed against the order passed by the A.O under Sec. 143(3) r.w.s 92CA(4) & 144C(13) of the Income Tax Act, 1961 (for short „I.T Act‟) for A.Y 2013-14. The assessee has assailed the impugned order on the following effective grounds of appeal
before us:- “I. On the facts and circumstances of the case and in law, the Learned Deputy Commissioner of Income- tax, Circle - 3(3)(l)(international Taxation), Mumbai ('Ld. AO') has erred in characterizing, and the Learned Dispute Resolution Panel ('Ld. DRP') further erred in confirming that, the nature of receipts amounting to INR 62,05,888 from link charges (communication charges) from its Group company in India i.e. Net Cracker Technology Solutions (India) Private Limited ('Net Cracker India') as 'Fees for included services' liable for taxation in India within the meaning of Article 12(4) of the India-USA Double Taxation Avoidance Agreement ('DTAA') and as 'Fees for Technical Services' under the Income Tax Act 1961 ('the Act').
2. On the facts and in the circumstances of the case and in law, the Ld. AO / Ld. DRP erred in considering the receipt of link charges as 'Royalty' within the meaning of Article 12(3) of the India-USA DT AA.
P a g e | 2 A.Y 2013-14 Netcracker Technology Solutions LLC vs. DCIT, Circle 3(3)(1), Mumbai 3. On the facts and circumstances of the case and in law, the Ld. AO erred in initiating penalty proceedings under section 271(l)(c) of the Act.”
Briefly stated, the assessee company which is incorporated under the laws of the State of Ohio in the United States of America is a provider of Business Support System („BSS‟) and Operations Support System („OSS‟) solutions to the communication industry worldwide. The assessee company had filed its return of income for A.Y 2013-14, declaring an income of Rs. 13,09,200/-. Subsequently, the case of the assessee was selected for scrutiny assessment under Sec. 143(2) of the Act.
Observing, that the assessee had during the year under consideration carried out certain international transactions with its Associated Enterprise („AE‟) viz. M/s Netcracker Technology Solutions (India) Pvt. Ltd. and had also filed a report u/s 92E in Form 3CEB, the A.O made a reference under Sec. 92CA(1) to the Deputy Commissioner of Income-tax, Transfer Pricing – 3(1)(2), Mumbai, (hereinafter referred to as „TPO‟) for determining the Arms Length Price („ALP‟) of the international transactions of the assessee. Order under Sec. 92CA(3), dated 05.10.2016 was passed by the TPO and the international transactions of the assessee were found to be arm‟s length.
During the course of the assessment proceedings, it was observed by the A.O, that the assessee had during the year received an amount of Rs. 20,67,63,981/- from carrying out the following activities :
S No. Name of the payer Services Amount (Rs.) 1. Convergys Information Management (India) Pvt. Ltd. Service Income Rs. 12,63,836/- 2. Convergys Information Management (India) Pvt. Ltd. Net G Training Rs. 45,337/- charges (Training fees) 3. Netcracker Technology Solutions India Data Access Rs. 42,19,152/- 4. Convergys Information Management (India) Pvt. Ltd. /Link Charges Rs. 13,47,046/- 5. Convergys Information Management (India) Pvt. Ltd. Rs. 6,40,510/- Rs. 62,05,888/- Total Receipts Rs. 75,15,981/- On a perusal of the computation of income, it was observed by the A.O that the assessee had admitted tax only on „service income‟ amounting to Rs. 12,63,836/- received from M/s CIM India. Also, the assessee had included in its „total income‟ the „Net G Training charges‟ of Rs. 45,337/-. As regards the data access/link charges of Rs. 62,05,888/- received by the assessee, P a g e | 3 A.Y 2013-14 Netcracker Technology Solutions LLC vs. DCIT, Circle 3(3)(1), Mumbai it was observed by the A.O that the same were not included in its total income for the year under consideration. Observing, that the assessee had not given any reasoning in its computation of income as to on what basis the data access/link charges were not exigible to tax, the A.O held a conviction that the same were not subjected to tax for the same reasons as were mentioned by the assessee in its „Note‟ appended to its statement of „total income‟ for the earlier year. Although CIM had withheld taxes @15% on data access/link charges, it was the claim of the assessee that the same were not liable to tax as per the provisions of the Income- tax Act r.w the India-USA DTAA. However, the A.O was not persuaded to subscribe to the aforesaid claim of the assessee. In the backdrop of the fact that the data access/link charges received by the assessee in the earlier years were brought to tax as „Royalty‟ and „Fees for technical services‟ („FTS‟), the A.O called upon the assessee to show cause as to why a similar treatment may not be accorded to the said receipts during the year under consideration. In reply, it was the claim of the assessee that as the aforesaid receipts were the reimbursements of the connectivity charges of USD 117,377 which during the year under consideration were allocated and recovered by the assessee on cost-to-cost basis from M/s NetCracker Technology Solutions India, therefore, there was no income component in the same. It was the claim of the assessee that as the aforesaid amount of data access/link charges received by it from M/s NetCracker Technology Solutions India did neither constitute FTS or Royalty either as per the provisions of the I.T Act or the India-USA DTAA, therefore, it could not be brought to tax in India. It was the claim of the assessee that as the data link sharing activity did not involve any human intervention, therefore, the same could not be construed as a „technical service‟ under the I.T Act or the India-USA DTAA. In support of its aforesaid claim the assessee had relied on a host of judicial pronouncements. Alternatively, it was submitted by the assessee that as the data link sharing activity did not satisfy the „make available‟ test, therefore, on the said count also it could not be regarded as FTS. Insofar the assessing of the aforesaid receipts as „Royalty‟ by the A.O was concerned, it was the claim of the assessee that the bandwith charges paid for transmission of data using optic fibre cables, undersea cables or satellites could not be considered as royalty for use of process as the said charges were paid for use of a standard facility/service. Also, it was submitted by the assessee that the amendment in Sec. 9(1)(vi) of the I.T Act would have no impact as there was no corresponding amendment in the India-USA P a g e | 4 A.Y 2013-14 Netcracker Technology Solutions LLC vs. DCIT, Circle 3(3)(1), Mumbai DTAA. However, the A.O was not inclined to accept the aforesaid claim of the assessee. It was observed by the A.O that the data access/link charges received by the assessee were in the nature of Fees for included services under Article 12 of the India-USA DTAA. Alternatively, the A.O was of the view that the receipts for providing of data access/link qualified for being treated as „Royalty‟ under Article 12 of the India-USA tax treaty. Observing, that the data access/link charges were brought to tax in the hands of the assessee as FTS or Royalty in the preceding years viz. A.Y 2007-08, A.Y 2008-09, A.Y 2009-10 and A.Y 2010-11, the A.O held the data access/link charges of Rs. 62,05,888/- received by the assessee as taxable in its hands during the year under consideration. Accordingly, the A.O vide his „draft assessment‟ order passed under Sec. 143(3) r.w.s 92CA(4) & 144C(1), dated 30.12.2016 proposed to include the data access/link charges of Rs. 62,05,888/- in the scope of the total income of the assessee for the year under consideration.
Aggrieved, the assessee filed objections with the Dispute Resolution Panel-2, Mumbai (for short „DRP‟). Observing, that no infirmity did emerge from the order passed by the A.O under Sec. 143(3) r.w.s 92CA(4) & 144C(1), the DRP vide its order passed under Sec. 144C(5), dated 27.03.2017 rejected the objections filed by the assessee.
After receiving the order/directions of the DRP under Sec. 144C(5), dated 27.03.2017, the A.O vide his final assessment order passed under Sec. 143(3) r.w.s 92CA(4) & 144C(13), dated 12.05.2017 included the data access/link charges of Rs. 62,05,888/- in the total income of the assessee and assessed its income at an amount of Rs. 75,15,088/-.
The assessee being aggrieved with the order passed by the A.O under Sec. 143(3) r.w.s 92CA(4) & 144C(13), dated 12.05.2017 has carried the matter in appeal before us. The ld. Authorised representative (for short „A.R‟) for the assessee at the very outset of the hearing of the appeal submitted that the issue involved in the present appeal was squarely covered by the consolidated order passed by the Tribunal in the assesse‟s own case viz. NetCracker Technology Solutions Inc. Vs. Asst. DIT Circle 1(1), Mumbai for A.Y 2009-10 (ITA No. 1701/Mum/2014), A.Y 2010-11 (ITA No. 1439/Mum/2015) and A.Y 2011-12 (ITA No. 1995/Mum/2016), dated 30.08.2019. It was averred by the ld. A.R that the tribunal in its aforesaid order for the preceding years had concluded that the A.O was in error in treating the P a g e | 5 A.Y 2013-14 Netcracker Technology Solutions LLC vs. DCIT, Circle 3(3)(1), Mumbai receipt of data access/link charges as Fees for include services/FTS or royalty. In order to fortify his aforesaid claim the ld. A.R had drawn our attention to Para 22 of the said order. (copy placed on record). On the basis of the aforesaid facts, it was submitted by the ld. A.R that the inclusion of the data access/link charges of Rs. 62,05,888/- in the scope of the total income of the assessee for the year under consideration could not be sustained and was liable to be vacated.
Per contra, the ld. Departmental representative (for short „D.R‟) did not object to the aforesaid claim of the counsel for the assessee that the issue was squarely covered by the order of the Tribunal in the assesse‟s own case for the earlier years viz. A.Y 2009-10, A.Y 2010-11 and A.Y 2011-12.
We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as the judicial pronouncements relied upon by them. Issue involved in the present appeal lies in a narrow compass i.e whether the data access/link charges received by the assessee from M/s Net Cracker Technology Solutions India & M/s Convergys Information Management (India) Pvt. Ltd. was exigible to tax in India as Fees for include services/FTS or Royalty, or not. As observed by us hereinabove, the A.O not finding favour with the claim of the assessee that the data access/link charges receipts were not liable to be taxed as Fees for include services/FTS or Royalty, had rejected the same. Also, the DRP had declined to accept the claim of the assessee and upheld the view taken by the A.O. On a perusal of the impugned order passed by the A.O under Sec. 143(3) r.w.s 92CA(4) & 144C(13), dated 12,05,2017, we find that he had observed that similar data access/link charges received by the assessee in the preceding years viz. A.Y 2007-08, A.Y 2008-09 and A.Y 2009-10 were brought to tax as FTS or Royalty in the hands of the assessee. Accordingly, taking support from the fact that a similar factual position was permeating in the case of the assessee in the aforementioned preceding years i.e A.Y 2007-08, A.Y 2008-09 and A.Y 2009-10, the A.O had brought the data access/link charges of Rs. 62,05,888/- received by the assessee during the year to tax in its hands.
We have given a thoughtful consideration and are in agreement with the claim of the ld. A.R that the issue before us i.e whether the data access/link charges received by the assessee P a g e | 6 A.Y 2013-14 Netcracker Technology Solutions LLC vs. DCIT, Circle 3(3)(1), Mumbai were exigible to tax in India as Fees for included services/FTS or Royalty, or not, is squarely covered by the consolidated order of the Tribunal in the assesse‟s own case for the earlier years viz. NetCracker Technology Solutions Inc. Vs. Asst. DIT Circle 1(1), Mumbai for A.Y 2009-10 (ITA No. 1701/Mum/2014), A.Y 2010-11 (ITA No. 1439/Mum/2015) and A.Y 2011-12 (ITA No. 1995/Mum/2016), dated 30.08.2019. On a perusal of the aforesaid order, we find, that it was observed by the Tribunal that the A.O was in error in treating the receipt of data access/link charges as Fees for include services/FTS or royalty. The Tribunal while concluding as hereinabove, had observed at Page 22 - Para 22, as under : “ 22. In view of the above factual and legal discussions, we are of the view payment made by the assessee is only in respect of standard services provided by AT&T and Spinet, which cannot be held to be „Royalty‟. Only those payment, when it made for scientific work, any patent, trademark, design or model, plan,secret formula or process, or for information concerning industrial, commercial or scientific experience, which is absolutely missing in the present case. The payment in the present case is not for a payment for scientific work nor there any patent, trademark, design, plan or secret formula or process for which the payment made. The service is connectivity to the telecom operators in the call end jurisdiction. The facility is a standard facility which is used by other telecom companies as well. Therefore, the action of the assessing officer which was upheld by ld. DRP, in treating the receipt as fee for FIS/FTS or for the Royalty is not justified. In the result the ground no. 2 of the appeal is allowed.” As the facts and the issue involved in the present case remains the same as was there before the Tribunal in the assesses own case for the aforementioned preceding years i.e A.Y 2009-10, A.Y 2010-11 and A.Y 2011-12, therefore, finding ourselves to be in agreement with the view therein taken, we respectfully follow the same. Accordingly, the inclusion of the data access/link charges of Rs. 62,05,888/- in the total income of the assessee by the A.O/DRP is vacated. Grounds of appeal No. 1 & 2 are allowed. The Ground of appeal No. 3 being premature is dismissed.
10. Resultantly, the appeal of the assessee is allowed.