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Income Tax Appellate Tribunal, ‘D’ BENCH : CHENNAI
Before: SHRI ABRAHAM P. GEORGE & SHRI DUVVURU RL REDDY]
आदेश / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER
First two among these are appeals filed by THE Revenue directed against orders dated 2.07.2012 of Commissioner of Income Tax (Appeals)-IV, Chennai for assessment years 2011-12 & 2012-13 and third one is an appeal of the assessee directed against an order dated 25.08.2014 of Commissioner of Income Tax (Appeals)- VII, Chennai for the assessment year 2013-2014. Facts for all these appeals lie within the same periphery and hence they are taken up together for disposal.
2. Assessee is a joint venture company floated by one M/s.Toshiba Corporation, Japan, JSW Energy Limited and JSW Steel Limited. Assessee was incorporated in India on 2nd September, 2008.
It is engaged in manufacture and sale of turbine, generators and auxiliary items. During the relevant previous years on the request of the assessee, M/s. Toshiba Corporation, Japan had deputed some of its employees to the assessee on full time basis. There were two agreements entered by the assessee, one with the deputed expatriates and other with M/s.Toshiba Corporation, Japan. The agreement with Toshiba Corporation, Japan was nomenclatured as cost to cost reimbursement agreement. Clauses appearing in the said & 2106/12 :- 3 -: & 3099/Mds/2014. agreement, entered on 05.12.2008, which are relevant for these appeals are reproduced hereunder:-
TERMS OF AGREEMENT
1. T JTG intends to hire personnel (Hereinafter referred to as "expatriates") of Toshiba for the purpose of its business operations in India.
Toshiba has agreed to assign the expatriates to T JTG for the above said purpose and for the specified period of time. 3. During the assignment in India, these expatriates would become effectively the employees of TJTG. NOW THEREFORE. IN CONSIDERATION OF THE FOREGOING, THE PARTIES AGREE AS FOLLOWS: 4, The responsibility for the payment of salary and other benefits to the expatriates shall lie solely with T JTG. However, for the sake of administrative convenience, Toshiba would pay the remuneration of the expatriates, for and on behalf of TJTG, in respect of the services rendered by the expatriates to TJTG. 5. In case of any default in making these payments on the part of Toshiba, the liability to compensate the expatriates would rest with TJTG. 6. The expatriates assigned by Toshiba to T JTG, will work under the instructions, guidance and supervision of T JTG and they shall have reporting obligations towards T JTG during the term of the assignment. 7. T JTG agrees that it shall reimburse! repay to Toshiba the actual cost of remuneration and other costs related to the Indian assignment incurred by Toshiba in respect of said expatriates during the period of their assignment to India. The said reimbursement repayment shall be without any mark up /profit. 8.' Toshiba would raise a debit note on TJTG providing complete details of the remuneration and other related costs incurred for the expatriates. T JTG would only be liable to reimburse/ repay such remuneration and related costs incurred by Toshiba and no mark-up f profit would be payable by T JTG.
& 2106/12 :- 4 -: & 3099/Mds/2014.
Such debit note shall specifically indicate that the payments that are sought to be recovered have been paid by Toshiba on behalf of T JTG. 10 T JTG shall assume complete responsibility for the work carried out or the results arising from the services rendered by the expatriates. 11This agreement will be deemed to come in force as and When the expatriate is assigned by Toshiba to T JTG. 12. It shall be open for either Party to terminate this agreement by giving the other Party a notice, in writing, of a period of 30 days and upon furnishing of any such notice on either Party, this Agreement would terminate after 60 days. 13. Each of the Parties represent and warrant to the other that it is legally competent to enter into and has full right. power and authority to execute and deliver this Agreement, to perform its obligations hereunder at that this Agreement constitutes valid and legally binding Obligations on it, enforceable against it in accordance with the terms contained herein. 14. This Agreement shall be a contract under the laws of India and for all purposes shall be governed by and construed and enforced in accordance with the laws of India and Japan.
3. The other agreements entered by the assessee was with the employees seconded by M/s. Toshiba Corporation, Japan and these were typically worded. One such agreement dated 12th December, 2008 entered by the assessee with Mr. Itaru Ishibashi is reproduced here under:-
EMPLOYEMENT PERIOD: The Employee's employment period is expected to be for a period of 3 years and may be extended if the business requires and upon the mutual consent.
& 2106/12 :- 5 -: & 3099/Mds/2014.
2. ROLES AND RESPONSIBILITIES:-
2·1. The Employee will work wholly and exclusively for the Company.
2-2. The Employee shall be required to carry out such task and responsibilities as are assiqned to the Employee by the Company, from time to time and the Company shall assume complete responsibility for the work carried out or the results arising from the services rendered by the Employee .
2-3. While employed with the Company. the Employee will be required to comply with any local employment policy established by the Company at the' employment location.
2-4. The Employee will not carry out any work for any Person I Entity other than the Company, while on employment with the Company in India. 2-5. The Employee's performance evaluation will be done based on the actual results achieved during the Employee's employment.
LOCATION: The Employee's usual place of work will be the office of the Company in Chennai, India. The Employee may be asked to travel and work away from the Employee's usual office, as per the Company's requirement.
4. REMUNERATION: The remuneration and other benefits that the Employee will be authorized during the Employee's employment are as under.
4-1. SARALY The basic salary amount to be paid to you is JPY890,000 per month (equivalent INR 445,000 per month) subject to performance and other variations. This would be reviewed as a part of the annual salary review of the Company with effect from 1st of April 2009.
& 2106/12 :- 6 -: & 3099/Mds/2014.
4-2. BONUS The bonus that would be paid to the Employee is JPY4,878,OOO per year (equivalent INR 2,439,000 per year), subject to performance and other variations.
4-3. ASSIGNMENT ALLOWANCE: Monthly Assignment Allowance that would be paid to the Employee is USD2. 740 (equivalent INR130.150), subject to performance and other variations. Additionally, special allowance as mutually discussed and agreed. will be paid to the Employee on a monthly basis.
4-4. HOUSING FACILITY The Company will provide accommodation or pay House Rent Allowance (HRA) in lieu of to the Employee.
4-5. CLUB FACILITY The Company will provide the Employee memberships of business-related associations or clubs as would be reasonable and customary for executives in comparable positions in other companies in India.
4-6. CHAUFFER DRIVEN COMPANY CAR FACILITY The Company will provide the Employee a chauffer driven company car- as would be reasonable for executives in comparable positions in other companies in India.
4-7. OTHER PERQUISITES I ALLOWANCES: Other perquisites and I or allowances may be provided in the future by the Company based on approval of the board members.
4-8. INDIA TAXATION AND SOCIAL SECUR1TY CONTRIBUTION All payments made to the Employee (whether inside or outside of India) shall be subject to applicable deductions, applicable social security laws, and withholding towards applicable taxes. Further, & 2106/12 :- 7 -: & 3099/Mds/2014.
Employee wm be liable to pay all taxes and mandatory social security contributions.
The Board of Directors are authorized to interchange the break up of the remuneration payable to the Employee, within the overall ceilling limit of INR40,OOO,OOO/-*per annum, subject to obtaining necessary approvals, where required.
5. LEAVE:
5-1. ANNUAL PAID LEAVE Annual paid leave shall be in accordance with the Company's standards and during the tenure of the employment with the Company. Annual paid leave shall be given in accordance with the length of the Employee's service.
5-2. LEAVE EXCEPT FOR ANNUAL LEAVE Other kinds of leaves shall be in accordance with the Company's standards.
5-3. LONG-TERM ABSENCE AND SUSPENSION FROM WORK If the Employee is absent from work on a long-term basis due to injury, illness, etc .the treatment of absence or suspension from work shall be, in principle provided in accordance with the Company's standards. However, where the period of absence or suspension is in excess of the period as per the Company's standards, the treatment shall be determined upon consultation between the parties in each case of occurrence of such event.
6. NOTIFICATION: If any Employee's post. title, salary or other working condition changes, the parties shall notify each other of such change.
7. OTHER TERMS AND CONDITIONS: Any doubt arising from interpretation of each provision of this CONTRACT or any matters not prescribed herein shall be determined upon mutual consultation between & 2106/12 :- 8 -: & 3099/Mds/2014.
the Company and the Employee. Upon signature of both parties hereto, this CONTRACT shall become effective as of the 1 SI day of January, 2009.
For the impugned assessment years, assessee made a request under section 195(2) of the Act to the ld. Assessing Officer for a Nil withholding tax certificate for the remittances that were to be made by it to M/s. Toshiba Corporation, Japan as per agreement mentioned first above. In the said application, assessee stated that the expatriates deputed by M/s. Toshiba Corporation were reporting to it and working under its guidance and supervision. Further, as per the assessee, salary and other allowances earned by them in India along with the amounts received by these employees in their own countries from M/s. Toshiba Corporation, Japan were offered for taxation in India and TDS deducted u/s.192 of the Act. As per the assessee, its payments to M/s. Toshiba Corporation, Japan were reimbursement of actual cost incurred by them for the deputed expatriates and was not taxable in India. However, the ld. Assessing Officer refused to give a ‘Nil’ withholding tax certificate to the assessee for these years citing the following reasons:-
(i) Employees seconded to the Indian companies were only for a specific period and they were to be reverted back to M/s. Toshiba Corporation, Japan after the said period.
(ii) Reporting obligations of the expatriates to the assessee arose only from agreement entered by the assessee with M/s. Toshiba Corporation, Japan.
& 2106/12 :- 9 -: & 3099/Mds/2014.
(iii) M/s. Toshiba Corporation, Japan was the guarantor of seconded employees and letter dated 21.05.2010 issued by the said concern to one of the expatriate employees namely Shri. Sachitomo Ishimaru, proved this.
(iv) Payments made by the assessee to M/s. Toshiba Corporation, Japan were not reimbursement but payments for availing services.
(v) So-called reimbursement agreement dated 5.12.2008 between assessee and M/s. Toshiba Corporation, Japan did not quantify or specify the amount payable by said M/s. Toshiba Corporation, Japan to the expatriates employees.
(vi) The expatriates had rendered specific services in critical areas and such services fell within the meaning of ‘’technical, consultancy and managerial services’’ and the payments effected by assessee to M/s. Toshiba Corporation, Japan were only for fees for such technical services.
(vii) As per Article 14 of the India Japan Double Taxation Agreement Act, fees for technical services meant payments made to any persons in consideration for services of a managerial, technical or consultancy nature including provisions of services of technical or other personnel.
(viii) Vide Article 12(2) of the India and Japan DTAA, fees for technical services could also be taxed in the nature of contracting country in which they arise.
Thus he held, that assessee was liable to deduct tax u/s.195 of the Act on the payments effected by it to M/s. Toshiba Corporation, Japan
Aggrieved, the assessee moved in appeal before ld. Commissioner of Income Tax (Appeals) for all these years. For the first two years, ld. Commissioner of Income Tax (Appeals) held in favour of the assessee based on his following findings:- & 2106/12 :- 10 -: & 3099/Mds/2014.
(i) Repatriated employees were at the full disposal of the assessee, and they were exclusively rendering services to the assessee.
(ii) Payments made in Japan by M/s. Toshiba Corporation, Japan to the expatriates were mainly to protect the interest these persons viz, for covering various insurances, contribution towards social security etc.
(iii) The amounts paid by M/ss. Toshiba Corporation, Japan to the expatriates were reimbursed by assessee to M/s. Toshiba Corporation, Japan. These were reimbursements since these expatriates were exclusively working for the assessee company and this was clearly specified in the agreement between assessee and M/s. Toshiba Corporation, Japan.
(iv) Assessee was reimbursing M/s. Toshiba Corporation, Japan on a cost to cost basis as per the cost reimbursement agreement.
(v) What was reimbursed by the assessee to M/s. Toshiba Corporation, Japan was nothing but part of the salary paid by assessee to repatriated employees working for assessee in India.
(vi) The payments effected in India and Japan to the employees could be considered only as salary. When part payments were accepted by salary by the Revenue the other part paid in Japan could not be considered as something else.
(vii) The assessee was deducting tax at source u/s.192 of the Act on the payments effected to these employees, considering the reimbursement of the amounts paid to M/s. Toshiba Corporation, Japan to these employees.
Thus, for assessment years 2011-2012, 2012-2013, the ld. Commissioner of Income Tax (Appeals) held that assessee was not & 2106/12 :- 11 -: & 3099/Mds/2014. liable to deduct tax at source, u/s.195 of the Act, on payments effected by it to M/s. Toshiba Corporation, Japan.
However, for the assessment year 2013-2014, ld. Commissioner of Income Tax (Appeals) took a diagonally opposite view. In the said order, ld. Commissioner of Income Tax (Appeals) held the assessee liable to deduct tax at source u/s.195 of the Act, on the following reasons:-
(i) Assessee has hired the personnel of M/s. Toshiba Corporation, Japan for the purpose of assessee’s business in India.
(ii) Japan company had agreed to assign its employees only for specific period of time.
(iii) There was no employer/employee relation between assessee and expatriates and so called employment contract was only a make believe arrangement.
(iv) If the expatriates were employees of the assessee there were no requirement of any reimbursement to the Japan, Company.
(v) M/s. Toshiba Corporation, Japan would not have put its own employees with assessee without any economic benefits to it.
(vi) Vide article 12(4) of the India - Japan DTAA, payments for rendering any services of managerial, technical or consultancy are taxable as fees for technical services.
The ld. Commissioner of Income Tax (Appeals) held that the payments effected by the assessee to M/s. Toshiba Corporation, Japan were fees & 2106/12 :- 12 -: & 3099/Mds/2014. for technical services and subject to withholding tax u/s.195 of the Act. In other words, the ld. Commissioner of Income Tax (Appeals) declined to follow the orders of his predecessor for the assessment years 2011-12 and 2012-2013.
Now before us, the Revenue is in appeal for first two years against the order of ld. Commissioner of Income Tax (Appeals) holding that assessee was not liable to deduct tax u/s.195 of the Act on the payments effected by it to M/s. Toshiba Corporation, Japan. Whereas, for assessment year 2013-2014, assessee is aggrieved on orders of the ld. Commissioner of Income Tax (Appeals) holding that it was liable to withhold tax u/s.195 of the Act.
Opening the arguments, ld. Departmental Representative submitted that employees assigned to the assessee by M/s. Toshiba Corporation, Japan were not directly enrolled or offered employment by the assessee. As per ld. Departmental Representative services rendered by the expatriates were nothing but managerial services falling within the meaning of technical services. Such services, according to him, had to be deemed as services rendered by M/s.
Toshiba Corporation, Japan. As per ld. Departmental Representative Article 14 of the Indo-Japan DTAA clearly mentioned consideration for services or consultancy nature including provisions of services of & 2106/12 :- 13 -: & 3099/Mds/2014. technical or other personnel as fees for technical services. Reliance was placed on the decisions of Authority for advance rulings in the case of Verizon Data Dervices India P. Ltd (Inre) (2012) (346 ITR 489) and also on the AT & S India P. Ltd (Inre) (AAR No.670 of 2005, dated 6th November, 2006). According to him, services rendered by these expatriate employees of M/s. Toshiba Corporation, Japan were nothing but management services on which tax had to be deducted u/s.195 of the Act. Thus, according to him, ld. Assessing Officer was correct in holding that assessee was liable to withhold taxes in payments effected to M/s. Toshiba Corporation, Japan. Ld. Departmental Representative submitted that ld. Commissioner of Income Tax (Appeals) while correctly upholding the order of the ld. Assessing Officer for the last year of the three years in appeal, fell in error when he took a different view in the first two years.
9. Per contra, the ld. Authorised Representative made the following submissions:-
Proposition1: Reimbursement of salary cost is for more administrative convenience:- We wish to submit before your goodself that payment of part of the salary to employees by Toshiba Corporation and subsequent reimbursement by the Company on a cost to cost basis is for mere administrative convenience. In this regard, reliance has been placed on the following judicial precedents: (a) IDS Software Solutions India P Ltd - [2009] 32 SOT 25 (Bangalore ITAT)
& 2106/12 :- 14 -: & 3099/Mds/2014.
(b) Ariba Technologies India Private Limited - [2011] (Bangalore IT A T) (c) Bhagyanagar Gas Ltd - [2013] 29 taxmann.com 220 (Hyderabad ITAT) (d) Cerner Healthcare Solutions Private Limited - [2011 ] ITA 627 (Bangalore IT A T) (e) Temasek Holdings Advisors I Private Limited - [2013] 38 taxmann.com 80 (Mumbai Tribunal).
Proposition 2: Salary paid to the expatriates was offered to tax in India We wish to submit before your goodself that the salary paid to the expatriates were offered to tax in India by the expatriates. In this regard, reliance has been placed on the following judicial precedents: (a) Carborundum Co - [1977] 108 ITR 335 (Supreme Court) (b) Eli Lilly and Co India P Ltd - [2009] 312 ITR 225 (Supreme Court)
Proposition 3: Explanation 2 to section 9(l)(vii) of the Income-tax Act, 1961 ('the Act') clarifying the term 'fees for technical services' :- We wish to submit before your goodself that in accordance with Explanation 2 to section 9( I )(vii) of the Act, 'fees for technical services' means any consideration for the rendering of managerial, technical, or consultancy services. In the instant case, the reimbursements are made on a cost to cost basis and not towards any consideration for services rendered.
Proposition 4: A particular payment shall be subject to tax deduction at source only under one section under the Act :- We wish to submit before your goodself that a particular payment shall be subject to tax deduction at source only under one section under the Act. In this regard, reliance has been placed on the following: (a) Circular No 720, dated 30 August 1995 clarifying the above. (b) HCL Infosystems Ltd - [2005] 144 taxman 492 (Delhi High Court) ( (c) HCL Infosystems Ltd - [2002] 76 TT J 505 (Delhi IT A T) (Refer Paragraph 22-28)
& 2106/12 :- 15 -: & 3099/Mds/2014.
Proposition 5: AT&S India Private Limited [20061 157 taxmann 198 (New Delhi AAR) as relied by the learned Department Representative has been considered and distinguished in the following cases: (a) IDS Software Solutions India P Ltd- [2009] 32 SOT 25 (Bangalore ITAT) (Paragraph 14)
(b) Temasek Holdings Advisors I Private Limited - [2013] 38 taxmann.com 80 (Mumbai IT AT) (Paragraph 16) (c) Cholamandalam MS General Insurance Co Ltd - [2009] 178 taxmann 100 (Delhi IT AT) (Paragraph 10) Proposition 6: Verizon Data Services India P Ltd - [2011] 11 taxmann.com 177 - AAR New Delhi as relied by the learned Department Representative has been considered and distinguished in Temasek Holdings Advisors I Private Limited - [2013] 38 taxmann.com 80
We have considered the rival contentions and perused the orders of the authorities below. There were two set of agreements entered by the assessee. One with seconded employees and other with M/s. Toshiba Corporation, Japan. These have been reproduced by us at paras 2 & 3 above. A careful reading of the agreement with M/s.
Toshiba Corporation, Japan shows that assessee was hiring personnel of M/s. Toshiba Corporation, Japan. It has been mentioned that during the period of assignment, expatriates would become effective employees of the assessee. In other words, what this meant is that they did not cease to be employees of the M/s. Toshiba Corporation, Japan. It is also stated that M/s. Toshiba Corporation, Japan would raise a debit note on the assessee where details of remuneration and other related cost incurred for employees would be given. The debit & 2106/12 :- 16 -: & 3099/Mds/2014. notes raised by the M/s. Toshiba Corporation, Japan on the assessee appear to be typical and one of these is reproduced hereunder:-
Date: Jan, 25, 2011 DEBIT NOTE No. STFI 1101
Messers Tosbiba JSW Turbine and Generator Pvt.Ltd, TVH Beliciaa Towers, Phase II, 8th floor, Ist Main Road, MRC Nagar, R.A. Puram, Chennai 600 028. India.
Please send remittance to the bank and account Number shown below within 30 days of above date:-
Submitomo Mitsui Banking Corporation, Head Office A/c. 5188087.
Description Amount / Yen Salary for the month of Jan 2011 Mr. Masachika Odawara 1,039,940 Mr. Itaru Ishibashi 937,359 Mr. Sachitomo Ishlmaru 886,724
Total 2,864,023
Toshiba Corporation
By Akhira Mabuchi Chief Specialist HR & Administration Div. Power Systems Company. A reading of the debit note shows that what they had paid to the personnel were nothing but salary. The situation Boils down to a stage where, if we were to believe both these agreements as true, these & 2106/12 :- 17 -: & 3099/Mds/2014. expatriates were both employees of M/s. Toshiba Corporation, Japan as well as assessee, for the very same period and at the same time.
Contention of the assessee all along was that the payments made by M/s. Toshiba Corporation, Japan were part of the remuneration due from the assessee to these persons, which, due to certain exigencies were paid by M/s. Toshiba Corporation, Japan. If that be so, we cannot fathom how M/s. Toshiba Corporation, Japan claimed the reimbursement as salary payments. In our opinion to unravel the mystery, it is essential to have a look at the agreements entered M/s.
Toshiba Corporation, Japan with the expatriates employees, in so far as it relates to the assignment of said persons to the assessee company in India. It has to be seen whether payments effected by M/s. Toshiba Corporation, Japan to these expatriates directly in Japan were only salary or whether there was any element of profit built up on cost. It is hard to believe that a commercial enterprise would give their own employees to another concern, simply on a reimbursement basis without any advantage to them. No doubt it was held in the following decisions that reimbursement of salary could only for administrative convenience.
(i)IDS Software Solutions India P Ltd (supra) (ii) Ariba Technologies India Private Limited (supra) (iii) Bhagyanagar Gas Ltd (supra) (iv) Cerner Healthcare Solutions Private Limited (supra)
& 2106/12 :- 18 -: & 3099/Mds/2014.
(v) Temasek Holdings Advisors I Private Limited (supra)
However, these decisions were based on a fundamental premise that such reimbursements were on cost to cost basis. No doubt salary paid to expatriates on which tax were deducted at source in India under section 192 of the act, cannot be subjected to a withholding tax under a different provision. However, this principle can be applied only if it is shown that what was claimed by the Japan Company as re- imbursement of part of the salary due to the expatriates was actually so. Assessee in its letter dated 16th May, 2011 filed before ld. Assessing Officer had given a break up of the amounts paid to the expatriates for assessment year 2011-2012. This is reproduced hereunder:-
Taxable Amounts Other Total Total Tax Total received by the taxable Taxable liability taxes Expatriate from Toshiba income incme for the (TDS) Corporation, Japan (including (actual for year paid u/se salary paid the FY 192 ended 31st JPY INR by Toshiba JSW, March) India) (INR) (INR) (INR) (INR)
Ishibashi 12,552,268 6,883,847 7,596,934 14,380,780 4,293,281 4,293,281 Ishimaru 7,277,109 4,048,229 3,391,171 7,339,400 2,117,495 2,117,495 Odawara 5,732,627 3,205,800 2,924,411 6,030,211 1,712,955 1,712,955 Total 25,562,004 14,137,876 13,912,516 27,750,391 8,123,731 8,123,731 & 2106/12 :- 19 -: & 3099/Mds/2014.
Assessee itself has excluded certain sums paid by M/s. Toshiba Corporation, Japan to its expatriates employees in Japanese currency.
No attempt was made by the lower authorities to reconcile these amounts with the debit notes issued by the Japan company to assessee. The question whether payments effected by assessee to Japan company, which was claimed by it as reimbursement of salary would come under the purview of fees for technical services, can in our opinion be decided only after verifying the terms of assignment and contract for employment if any entered by the expatriates employees with the Japan Company and also the reconciliation of the amounts paid by the Japan company to its expatriates with the gross amounts on which assessee had deducted tax under Section 192 of the Act. When assessee claims that what was reimbursed by it to Japan company was only a part of the salary due to expatriates, the onus is on it to prove this. Considering all these we are of the opinion that the matter requires a fresh look by the ld. Assessing Officer. The ld. Assessing Officer has to verify whether what was claimed by the assessee as reimbursement on a cost to cost basis to Japan company had any element of fees for technical services after verifying the agreements entered by expatriates employees with M/s. Toshiba Corporation, Japan and also the reconciliation of the amounts paid in both countries to these expatriates with the gross amount on which & 2106/12 :- 20 -: & 3099/Mds/2014. tax was deducted under Sec. 192 of the Act. Assessee cannot claim that the same expatriates were employees of both assessee and M/s. Toshiba Corporation, Japan for the same period and for the same time. We therefore, set aside the orders of the lower authorities and remit the issue back to the file of the ld. Assessing Officer for consideration of fresh in accordance with law.
In the result, the appeals of the Revenue for assessment years 2011-12 & 2012-13 and that of assessee for assessment year 2013-2014 are allowed for statistical purpose.
Order pronounced on Friday, the 21st day of October, 2016, at Chennai.