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Income Tax Appellate Tribunal, MUMBAI BENCH “L”, MUMBAI
Before: SHRI C.N. PRASAD, HONBLE & SHRI MANOJ KUMAR AGGARWAL, HONBLE
This appeal and cross objection are filed by the Revenue and assessee against the order of the Ld. Commissioner of Income Tax (Appeals)-31 Mumbai dated 19.06.2008 for the A.Y. 2005-06.
The Revenue in its appeal has raised following grounds: -
"(1) On the facts and the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the assessee does not have Permanent Establishment (P.E.) in India and accordingly its business are not taxable in India. (2) On the facts and the circumstances of the case and in law, the Ld. CIT(A) erred in holding that no interest U/s. 234B is payable by a non - resident whose total income is subject to deduction of tax at source and accordingly deleting the interest charge u/s 234B of the IT Act 1961. (3 The Appellant prays that the order of CIT(A) on the above grounds be set aside and that of the A.O. restored.”
In the Cross objection filed by the assessee, assessee challenged the order of the Ld.CIT(A) on following grounds: - “1. Without prejudice to the decision of the Hon. CIT (A) (wherein it is held that the assessee has no PE in India hence its income is not taxable in India) even if it is held assessee has Permanent Establishment in India its income is not taxable in as it has paid arm’s length remuneration/commission to its Agent in India having regards to the functions and risk performed by the agent, which is taxed in India as held by Supreme Court in the case of Morgan Stanley 292 ITR 416 and Bombay High Court in the case of Sony Entertainment Television (Singapore) Limited 173 Taxman 475.
2. Without prejudice to the decision of the Hon’ble CIT (A), (wherein it is held that the assessee has no PE in India hence its income is not taxable in India), even if it is held that assesses is taxable in India, interest u/s 234B of the Act is not liable as the whole income of the assessee is liable lo tax deduction at source under the Act hence no advance tax was payable relying upon the decisions CIT vs. Madras Fertilizers Ltd 149 JTR 703, Sedco Forex International Drilling Inc Vs DCIT 72 JTD 415 (ITAT Delhi), Rheibraun Engineering & Wasser Gmbh 19l5/Bom/96.”
The Ld. Counsel for the assessee, at the outset submitted that the issue raised in the cross objection by the assessee that, even if it is held that the assessee has permanent establishment in India its income is not 3 (A.Y: 2005-06) CO.No. 47/Mum/2010 (A.Y: 2005-06) M/s. Zee TV USA Inc. taxable in India as it has paid arm’s length remuneration/commission to its agent in India which is taxed in India and therefore no adjustment to be made in the hands of the assessee, is decided in favour of the assessee in assessee’s own case for the A.Y. 2007-08 by the Coordinate Bench of the Tribunal in ITA No. 8862/Mum/2010 by order dated 17.11.2017 following the decision of the Hon’ble supreme Court in the case of CIT v. E-funds I.T. Solutions Inc., in Civil Appeal No. 6082 of 2015 dated 24.10.2017.
5. Ld. Counsel for the assessee submitted that following the decision of the Hon’ble supreme Court, the Coordinate Bench held that once no income is chargeable to tax in India is attributable to the assessee for the reason that the transaction between the assessee and its AE has been found at arm’s length price, no further income chargeable to tax in India can be said to be attributable on account of PE. Ld. Counsel for the assessee referring to the order passed by the Transfer Pricing Officer u/s. 92CA (3) of the Act for the A.Y. 2005-06 in the case of M/s. Zee Telefilms Ltd., which is the agent of the assessee, it is submitted that the TPO accepted the transactions are at arm’s length and no adjustment has been made to the International transactions entered into by the assessee with its associate enterprises. Therefore, it is submitted that this issue is squarely covered in favour of the assessee by the Coordinate Bench in followed for this assessment year.
Ld. DR vehemently supported the orders of the Assessing Officer.
7. On hearing both the parties and perusing the orders of the authorities below and the Coordinate Bench decision, we find that similar issue came up before the Coordinate Bench for the A.Y. 2007-08 wherein the alternative contention of the assessee that income of the assessee is not chargeable to tax in India as the assessee has paid arm’s length remuneration/commission to its agent in India which was taxed in India, has been accepted following the decision of the Hon’ble Supreme Court in the Case of CIT v. E-funds I.T. Solutions Inc., (supra) while holding so the Coordinate Bench observed as under:- “4. The learned Counsel for the assessee stated that no adjustment on account of ALP of space selling is considered by TPO and once, no transfer pricing adjustment is made, no further income chargeable to tax in India can be attributable to the assessee for the reason that the transaction between the assessee and AE has been found at arm’s length price. For this the learned Counsel for the assessee relied on the decision of Hon’ble Supreme Court in the case of ADIT vs. E-Funds IT Solution Inc. in Civil Appeal No. 6082 of 2015 vide order dated 24.10.2017 wherein vide Para 22 reads as under: - “22. Shri Ganesh has referred to and relied upon an order of the Additional Taxation Commissioner, who is the Transfer Pricing Officer. The said order is dated 22nd February, 2006 and states as under: “The taxpayer company filed its return of income with ACIT Circle 11(1), New Delhi. A reference was received from the Assessing Officer to determine the ‘arm’s length price’ u/s 92CA(3) in respect of ‘international transactions’ entered into by the assessee during the F.Y. 2002-03. In response to notice u/s 92CA, Shri Vijay Iyer, CA of S.R. Batliboi & Co. Chartered Accountants, authorized representative of the assessee appeared form time to time. The documentation prescribed under Rule 10D of the Income Tax Rules was submitted and placed on record. The taxpayer company is engaged in providing IT enabled services which include Back office services and Call centre services. It also has a software design center for development of software for call centres.
5 (A.Y: 2005-06) CO.No. 47/Mum/2010 (A.Y: 2005-06) M/s. Zee TV USA Inc. eFunds International (India) Pvt. Ltd. is a wholly owned subsidiary of IDLX Holdings BV, Netherlands. IDLX is a wholly owned subsidiary of eFunds Corp. The major international transactions undertaken by the assessee during the year is given below: Sl.No Description of transaction Method Value (In Rs.) 1. Financial Shared Services TNMM 33.9 Cr. 5 (Back Office) 2. Call Center Services TNMM 88.03 Cr. (Shared Service Centre) 3. Software Development (Off- TNMM 57.58 Cr. shore for call centres) In addition to the above the assessee has also provided software development services to overseas eFunds group entities. The international transactions undertaken by the assessee were examined vis- a-vis the method applied by the assessee for arriving at the arm’s length price. The assessee has relied on the Transactional Net Margin Method (TNMM) in respect of all the major international transactions. After examination of the documentation and discussion with the authorized representative of the assessee, no adverse inference is drawn in respect of the Arm’s Length Price (ALP) of the international transactions, as declared by the assessee in Form 3CEB, annexed to the return of the Income.” Shri Ganesh is correct in stating that as the arm’s length principle has been satisfied in the present case, no further profits would be attributable even if there exists a PE in India. This was specifically held in Morgan Stanley (supra) as follows: “32. As regards determination of profits attributable to a PE in India (MSAS) is concerned on the basis of arm’s length principle we have quoted Article 7(2) of DTAA. According to AAR where there is an international transaction under which a nonresident compensates a PE at arm’s length price, no further profits would be attributable in India. In this connection, AAR has relied upon Circular No. 23 of 1969 issued by CBDT as well as Circular No. 5 of 2004 also issued by CBDT. This is the key question which arises for determination in these civil appeals. (at page 25). xxx xxx xxx 35. The object behind enactment of transfer pricing regulations is to prevent shifting of profits outside India. Under Article 7(2) not all profits of MSCo would be taxable in India but only those which have economic nexus with PE in India. A foreign enterprise is liable to be taxed in India on so much of its business profit as is attributable to the PE in India. The quantum of taxable income is to be determined in accordance with the provisions of the IT Act. All provisions of the IT Act are applicable, including provisions relating to depreciation, investment losses, deductible expenses, carryforward and set-off losses, etc. However, deviations are made by DTAA in cases of royalty, interest, etc. Such deviations are also made under the IT Act (for example Sections 44-BB, 44-BBA, etc.) 36. Under the impugned ruling delivered by AAR, remuneration to MSAS was justified by a transfer pricing analysis and, therefore, no further income could be attributed to the PE (MSAS). In other words, the said ruling equates an arm’s length analysis (ALA) with attribution of profits. It 6 (A.Y: 2005-06) CO.No. 47/Mum/2010 (A.Y: 2005-06) M/s. Zee TV USA Inc. holds that once a transfer pricing analysis is undertaken, there is no further need to attribute profits to a PE. The impugned ruling is correct in principle insofar as an associated enterprise, that also constitutes a PE, has been remunerated on an arm’s length basis taking into account all the risk- taking functions of the enterprise. In such cases nothing further would be left to be attributed to PE. The situation would be different if transfer pricing analysis does not adequately reflect the functions performed and the risks assumed by the enterprise. In such a situation, there would be a need to attribute profits to PE for those functions/risks that have not been considered. Therefore, in each case the data placed by the taxpayer has to be examined as to whether the transfer pricing analysis placed by the taxpayer is exhaustive of attribution of profits and that would depend on the functional and factual analysis to be undertaken in each case. Lastly, it may be added that taxing corporates on the basis of the concept of economic nexus is an important feature of attributable profits (profits attributable to PE).” (at pages 27-28)”
The learned Counsel also relied in ITAT’s decision in the case of Taj TV Ltd. vs ADIT (international Taxation) (2017) 162 ITD 674 (MumTrib.) “18. As regards ground No.1 of the Revenue's appeal, it is admitted fact that, similar to ground which has been decided in the assessment year 2007-08. Therefore, in view of the finding given there in, we hold that no further income chargeable to tax in India can be said to be attributable to the assessee for the reasons that the transaction between the assessee and PE has been found at arm's length price and for this year also the TPO's order in case of the assessee and Taj India has been placed on record wherein the transaction has been accepted at arm's length price. Thus, ground No. 1 is dismissed.”
6. In view of the above, the learned Counsel for the assessee argued that in case alternate arguments of the assessee is accepted that no further income chargeable to tax in India can be said to be attributable to the assessee for the reason that the transaction between the assessee and its AE has been found at arm’s length price in the present case on the issue of agent for space selling, there is no requirement for dealing with the issue of, whether there is PE or not and no addition on this count can be made in the case of assessee. When these facts were confronted to the learned CIT Departmental Representative, he fairly conceded the position as regards to alternative contention of the assessee.
After hearing rival contentions and gone through the facts and circumstances of the case. We find that the alternative contention made by the assessee that once no income chargeable to tax in India is attributable to the assessee for the reason that the transaction between the assessee and its AE has been found at arm’s length price, no further income chargeable to tax in India can be said to be attributable on account of PE. Accordingly, this issue is squarely covered in favour of assessee by the decision of Hon’ble Supreme Court in the case of EFunds IT Solution Inc. (supra) and also co-ordinate Bench decision in the case of Taj TV Ltd. (supra). Respectfully following the same we allow the appeal of the assessee.”
Respectfully following the decision of the Coordinate Bench, we hold that since transactions between the assessee and its AE have been found at arm’s length prices no further income chargeable to tax in India
7 (A.Y: 2005-06) CO.No. 47/Mum/2010 (A.Y: 2005-06) M/s. Zee TV USA Inc. can be said to be attributable for the PE of the assessee. Hence this ground is decided in favour of the assessee. Since we have decided issue on the preliminary point, we are not inclined to go into the merits of other grounds.
The ground raised in the cross objection regarding the chargeability of interest u/s. 234B becomes consequential to Ground No.1 in view of our above decision and hence the same is dismissed.
In the result, cross objection filed by the assessee is partly allowed and appeal of the Revenue is dismissed.
Order pronounced in the open court on the 23rd April, 2018.