Ishikawajima Harima Heavy Industries Ltd. v. DIT

288 ITR 408Supreme Court of India2007#187 most cited

What is Ishikawajima Harima Heavy Industries Ltd. v. DIT authority for?

Income from offshore supply of goods and services is not taxable in India if the entire transaction, including transfer of ownership and payments, occurs outside India.

394

judgments rely on this decision, according to BharatTax’s citation analysis of 369,743 Indian tax judgments — from 2010 to 2026.

Also referred to as

Ishikawajima Harima Heavy Industries Ltd v DIT · Section 9(1)(vii) · Section 195 · Section 40(a)(i) · offshore supply of goods · offshore services · income taxable in India · non-resident taxation · make available clause · business connection

Sections most often in play

Section 143(3)Section 234B Section 9(1)(vii)Section 144C(13)Section 144C(5)Section 195 Section 234A Section 40(a)(i)

Issues it is cited on

section 44bbb section 9(2)section 44bb section 44b section 195(1)make available clause section 9(1)(i)agency pe business connection fees for included services section 9(1)(vii)section 5(2)

Judgments citing Ishikawajima Harima Heavy Industries Ltd. v. DIT

DDIT, New Delhi vs. M/S. Sumitomo Corporation, New Delhi

Appeal are allowed

ITA 3714/DEL/2014[2004-05]Status: DisposedITAT Delhi01 Jul 2019AY 2004-05

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ssessee has PE in India in the form of long-standing presence in India in relation to the supplies being made and services being rendered to MUL for the past several years. The reliance of the decision in case of M/s Ishikawajima Harima Heavy Industries Ltd. (288 ITR 408 (SC)) was misplaced by the CIT(A) as the facts of the said case are distinguishable to the present assessee’s case. 7. The Ld. AR submitted that during the year, the assessee was engaged in supply of equipment to MUL outside India. The supply of equipment was not offered to tax on the ground that the same was offshore supply, where the risks and…

DDIT, New Delhi vs. M/S. Sumitomo Corporation, New Delhi

Appeal are allowed

ITA 3713/DEL/2014[2003-04]Status: DisposedITAT Delhi01 Jul 2019AY 2003-04

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ssessee has PE in India in the form of long-standing presence in India in relation to the supplies being made and services being rendered to MUL for the past several years. The reliance of the decision in case of M/s Ishikawajima Harima Heavy Industries Ltd. (288 ITR 408 (SC)) was misplaced by the CIT(A) as the facts of the said case are distinguishable to the present assessee’s case. 7. The Ld. AR submitted that during the year, the assessee was engaged in supply of equipment to MUL outside India. The supply of equipment was not offered to tax on the ground that the same was offshore supply, where the risks and…

DDIT, New Delhi vs. M/S. Sumitomo Corporation, New Delhi

Appeal are allowed

ITA 3696/DEL/2014[2002-03]Status: DisposedITAT Delhi01 Jul 2019AY 2002-03

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ssessee has PE in India in the form of long-standing presence in India in relation to the supplies being made and services being rendered to MUL for the past several years. The reliance of the decision in case of M/s Ishikawajima Harima Heavy Industries Ltd. (288 ITR 408 (SC)) was misplaced by the CIT(A) as the facts of the said case are distinguishable to the present assessee’s case. 7. The Ld. AR submitted that during the year, the assessee was engaged in supply of equipment to MUL outside India. The supply of equipment was not offered to tax on the ground that the same was offshore supply, where the risks and…

DDIT, New Delhi vs. M/S. Sumitomo Corporation, New Delhi

Appeal are allowed

ITA 3695/DEL/2014[2001-02]Status: DisposedITAT Delhi01 Jul 2019AY 2001-02

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ssessee has PE in India in the form of long-standing presence in India in relation to the supplies being made and services being rendered to MUL for the past several years. The reliance of the decision in case of M/s Ishikawajima Harima Heavy Industries Ltd. (288 ITR 408 (SC)) was misplaced by the CIT(A) as the facts of the said case are distinguishable to the present assessee’s case. 7. The Ld. AR submitted that during the year, the assessee was engaged in supply of equipment to MUL outside India. The supply of equipment was not offered to tax on the ground that the same was offshore supply, where the risks and…

Sumitomo Corporation, Delhi vs. DDIT, New Delhi

Appeal are allowed

ITA 3677/DEL/2014[2003-04]Status: DisposedITAT Delhi01 Jul 2019AY 2003-04

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ssessee has PE in India in the form of long-standing presence in India in relation to the supplies being made and services being rendered to MUL for the past several years. The reliance of the decision in case of M/s Ishikawajima Harima Heavy Industries Ltd. (288 ITR 408 (SC)) was misplaced by the CIT(A) as the facts of the said case are distinguishable to the present assessee’s case. 7. The Ld. AR submitted that during the year, the assessee was engaged in supply of equipment to MUL outside India. The supply of equipment was not offered to tax on the ground that the same was offshore supply, where the risks and…

Sumitomo Corporation, Delhi vs. DDIT, New Delhi

Appeal are allowed

ITA 3676/DEL/2014[2002-03]Status: DisposedITAT Delhi01 Jul 2019AY 2002-03

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ssessee has PE in India in the form of long-standing presence in India in relation to the supplies being made and services being rendered to MUL for the past several years. The reliance of the decision in case of M/s Ishikawajima Harima Heavy Industries Ltd. (288 ITR 408 (SC)) was misplaced by the CIT(A) as the facts of the said case are distinguishable to the present assessee’s case. 7. The Ld. AR submitted that during the year, the assessee was engaged in supply of equipment to MUL outside India. The supply of equipment was not offered to tax on the ground that the same was offshore supply, where the risks and…

Sumitomo Corporation, New Delhi vs. DDIT, New Delhi

Appeal are allowed

ITA 3675/DEL/2014[2001-02]Status: DisposedITAT Delhi01 Jul 2019AY 2001-02

Bench: Shri G. D. Agrawal & Ms Suchitra Kamble

…ssessee has PE in India in the form of long-standing presence in India in relation to the supplies being made and services being rendered to MUL for the past several years. The reliance of the decision in case of M/s Ishikawajima Harima Heavy Industries Ltd. (288 ITR 408 (SC)) was misplaced by the CIT(A) as the facts of the said case are distinguishable to the present assessee’s case. 7. The Ld. AR submitted that during the year, the assessee was engaged in supply of equipment to MUL outside India. The supply of equipment was not offered to tax on the ground that the same was offshore supply, where the risks and…

DCIT, Cir-11(1), Kolkata vs. M/S Ershisanye Construction Group (I) Ltd., Kolkata

In the result, the appeal of the Revenue is dismissed

ITA 260/KOL/2015[2010-2011]Status: DisposedITAT Kolkata10 Apr 2019AY 2010-2011

Bench: Shri S. S. Godara, J.M. & Dr.A.L.Saini, A.M.) Asstt. Year : 2010-11 Dcit, Cir-11(1), Kolkata Vs M/S. Ershisanye Construction Group (I) Ltd. Pan:Aacce0687Q (Appellant) (Respondent)

For Appellant: Dr.Shri P.K. Srihari, CIT, ld.DRFor Respondent: None appeared/Adj. Petition not filed

Section 2(26)Section 42Section 9Section 9(1)(i)Section 90(2)

…ing or arising abroad through or from any business connection in India cannot be deemed to accrue or arise in India. Reliance in this regard is placed on the following judgments: • CIT v Toshoku Ltd. 125 ITR 525 (SC) • Ishikawajma Harima Heavy Industries Ltd 288 ITR 408 (SC) It is pertinent to consider Explanation 1 to section 9(1)(i) that provides as under: "For the purposes of this clause- (a) in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably…

DCIT (It) 2(1)(2), Mumbai vs. Daimler Ag, Mumbai

In the result, appeal filed by the revenue is dismissed

ITA 183/MUM/2018[2013-14]Status: DisposedITAT Mumbai28 Mar 2019AY 2013-14

Bench: Shri Mahavir Singh, Jm & Shri G. Manjunatha, Am Dcit(It)-2(1)(2), Vs. M/S. Daimler Ag Room No.1612, 16Th Floor, C/O. Srbc & Associates Llp, Chartered Accountants, 14 Th Air India Building, Nariman Point Floor, The Ruby, 29, Senapati Mumbai – 400021 Bapat Marg, Dadar(W), Mumbai - 400028 Pan/Gir No. Aabcd2354C Appellant) .. Respondent)

Section 143(3)Section 5

…tform, the PE attributable to installation and commissioning came into existence only after the supply of the equipment. Therefore profits from supply of the platform did not accrue in India. Similarly in the case of Ishikawajima Harima Heavy ltd. Ltd. v DIT (288 ITR 408), the Apex court held that profit will not accrue in India in respect of offshore supply of equipment. The subsequent amendment to sect 9(1)(i) will not affect the decision on profit arising from sale of equipment offshore. Mere sale of raw materials/components will not equipment result in business connection and even if it does as per he terms a…

DCIT, Circle-1(1)(1), Ahmedabad vs. Amol Dicalite Ltd., Ahmedabad

In the result the appeal of the Revenue is dismissed

ITA 539/AHD/2018[2008-09]Status: DisposedITAT Ahmedabad27 Mar 2019AY 2008-09

Bench: Shri Waseem Ahmed & Shri Ms. Madhumita Royआयकर अपील सं./Ita No. 539/Ahd/2018 "नधा"रण वष"/Asstt. Year: 2008-2009 & आयकर अपील सं./Ita No. 1246/Ahd/2016 "नधा"रण वष"/Asstt. Year: 2010-2011 The D.C.I.T, Amol Dicalite Ltd. Circle-1(1)(1), Vs. 301, Akshay, 53, Ahmedabad Shirmali Society Navrangpura, Ahmedabad

For Appellant: Shri S.N. Soparkar, A.R

…the assessee also contended that the fees for technical services in India are taxable in India only when these services are utilized in India and also rendered in India as held by the Hon’ble Apex Court in the case of Ishikawajma Harima heavy industries Ltd (288 ITR 408). The assessee also contended that the same decision was followed by the Bombay high court in case of Clifford Chance (318 ITR 237). 9.1 The assessee also relied on the decision of ITAT Agra in case of Virola international (147 ITD 419) wherein it was held that the position for the fees of technical services cannot be taxed in India unless it is…

The DCIT, Circle-1(1)(1), Ahmedabad vs. M/S. Amol Dicalite Ltd., Ahmedabad

In the result the appeal of the Revenue is dismissed

ITA 1246/AHD/2016[2010-11]Status: DisposedITAT Ahmedabad27 Mar 2019AY 2010-11

Bench: Shri Waseem Ahmed & Shri Ms. Madhumita Royआयकर अपील सं./Ita No. 539/Ahd/2018 "नधा"रण वष"/Asstt. Year: 2008-2009 & आयकर अपील सं./Ita No. 1246/Ahd/2016 "नधा"रण वष"/Asstt. Year: 2010-2011 The D.C.I.T, Amol Dicalite Ltd. Circle-1(1)(1), Vs. 301, Akshay, 53, Ahmedabad Shirmali Society Navrangpura, Ahmedabad

For Appellant: Shri S.N. Soparkar, A.R

…the assessee also contended that the fees for technical services in India are taxable in India only when these services are utilized in India and also rendered in India as held by the Hon’ble Apex Court in the case of Ishikawajma Harima heavy industries Ltd (288 ITR 408). The assessee also contended that the same decision was followed by the Bombay high court in case of Clifford Chance (318 ITR 237). 9.1 The assessee also relied on the decision of ITAT Agra in case of Virola international (147 ITD 419) wherein it was held that the position for the fees of technical services cannot be taxed in India unless it is…

DCIT 2(2), Mumbai vs. Knight Frank (I) P. Ltd, Mumbai

In the result, appeal filed by the assessee is partly allowed and the revenue’s appeal is dismissed

ITA 3256/MUM/2013[2009-10]Status: DisposedITAT Mumbai18 Mar 2019AY 2009-10

Bench: Shri G.S. Pannu (Vp) & Shri Ram Lal Negi (Jm) Assessment Year: 2009-2010 M/S Knight Frank (I) Pvt. Ltd., The Addl. Commissioner Of C/O Kalyaniwalla & Mistry, Income Tax – 2(2), Army & Navy Building, Room No. 548, 5Th Floor, 3Rd Floor, 148 M.G. Road, Fort, Vs. Aayakar Bhavan, M.K. Marg, Mumbai - 400001 Mumbai Pan: Aaack1544J (Appellant) (Respondent) & Assessment Year: 2009-2010 The Dcit – 2(2), M/S Knight Frank (India) Pvt. Ltd. Room No. 545, Paville House, Near Twin Towers, Aayakar Bhavan, M.K. Road, Off. Veer Savarkar Marg, Mumbai - 400020 Vs. Prabhadevi, Mumbai - 400025 Pan: Aaack1544J (Appellant) (Respondent) Assessee By : Shri M.M. Golwala & Amey Wagle (Ar) Revenue By : Shri Rajesh Kumar Yadav & S.K. Mishra (Dr) Date Of Hearing: 21/12/2018 Date Of Pronouncement: 18/03/2019

For Appellant: Shri M.M. Golwala & Amey Wagle (AR)For Respondent: Shri Rajesh Kumar Yadav &

Section 143Section 145Section 145ASection 251(2)Section 40Section 43BSection 9

…the assessee could not have visualized to deduct tax in absence of any provision particularly in view of the fact that there was already prevailing the law laid down by the Hon’ble Supreme Court in the case of Ishikawajma-Harima Heavy Industries Ltd. vs. DIT 288 ITR 408, wherein it was held that services rendered outside India would be taxable in India only if such services had been utilized in India. The Ld. counsel also relied on the decision of the Hon’ble Madras High Court in the case of CIT vs. Faizan Shoes Pvt. Ltd. 48 taxmann.com 48 (Madras) in support of the contention of the assessee. 15. On the other h…

M/S. Samsung Heavy Industries Co. Ltd., Gurgaon vs. ADIT, New Delhi

The appeal of the assessee is partly allowed with above direction

ITA 1909/DEL/2014[2010-11]Status: DisposedITAT Delhi09 Jan 2019AY 2010-11

Bench: Shri H.S.Sidhu & Shri Prashant Maharishi

For Appellant: Shri Ravi Sharma, AdvFor Respondent: Shri G.K. Dhall, CIT

Section 143Section 144C

…ore supplies (i.e. design & engineering, fabrication and supply of platform) was carried out outside India. 3.2. That the Ld. AO has grossly erred in ignoring the principles of taxation laid down by the Hon‟ble Apex Court in the case of Ishikawajma Harima‟s : 288 ITR 408 (SC) in respect of taxability of turnkey contract where different parts of the contract is to be carried out in different tax jurisdictions. 4. That on the facts and in the circumstances of the case and in law, the Ld. AO has erred in holding that the title in the material/offshore supplies as per the contract was transferred in India. 5. That on…

Viacom 18 Media P.Ltd, Mumbai vs. DCIT (It) 4(3)(1), Mumbai

In the result, appeal filed by the assessee is allowed

ITA 618/MUM/2017[2016-17]Status: DisposedITAT Mumbai12 Oct 2018AY 2016-17

Bench: Shri Mahavir Singh() & Shri G Manjunatha ()

Section 195Section 248Section 9(1)(vi)Section 90(2)

…the transponder, to particular customers. Merely because the transponder has its footprint on various continents, it would not mean that the process has taken place in India. Thus the Delhi High Court followed the decision of the Apex Court reported in [2007] 288 ITR 408 (Ishikawajama-Harima Heavy Industries Ltd. v. Director of Income Tax} and held that services rendered outside India would have nothing to do with the permanent establishment in India and hence there was no process carried out in India or was there any business in India which could be attributed to the Indian territory. Thus the High Court held th…

Atomstroyexport, Russia, Mumbai vs. DCIT (It) RG 1(1)(2), Mumbai

In the result, both the appeals of the assessee are allowed

ITA 6945/MUM/2017[2014-15]Status: DisposedITAT Mumbai17 Sept 2018AY 2014-15

Bench: Shri Joginder Singh & Shri Rajesh Kumarassessment Year: 2014-15 Assessment Year: 2012-13

For Appellant: Shri Nitesh Joshi, A.RFor Respondent: Shri Samuel Darse, D.R

Section 143(3)Section 147Section 44B

…extracted herein below – "15 Therefore after analyzing the various case laws, statutory provisfonc, DTA/ provisions and contractual terms and respectfully following judgment of Hon'ble Supreme Court in Ishikawajima- Harirna Heavy Industries Limited V/s DICT (288 ITR 408),we are inclined to hold that Offshore Supply contracts were 'carried and concluded-"outside India and hence no income therefrom deemed to accrue or arise in India as per section 9(1) and DTAA provisions and accordingly, not chargeable to tax. The receipts thereof do not form part of receipts for the purpose of computational provisions of section…

Hitt Holland Institute of Traffic Technology B.V (Now Known As 'Saab Technologies B.V.'), Netherlands vs. ACIT, International Taxation, Circle - 1(1), Kolkata

In the result, the appeal of the assessee is partly allowed for statistical purposes

ITA 2112/KOL/2017[2014-15]Status: DisposedITAT Kolkata01 Aug 2018AY 2014-15

Bench: Hon’Ble Shri Aby T Varkey, Jm & Shri M.Balaganesh, Am ]

For Appellant: Shri Avisekh Kejriwal, ARFor Respondent: Shri G. Mallikarjuna, CIT DR

Section 143(3)Section 144C(5)

…chnology B.V. A.Yr. 2014-15 attributed to the Installation PE of the assessee in India. In this regard, we would like to place reliance on the decision of the Hon’ble Supreme Court in the case of Ishikawajima Harima Heavy Industries Limited vs DIT reported in 288 ITR 408 (SC) wherein it was clearly stated that in case the PE of a foreign company is not involved in any transaction carried out in India or outside India, no part of income earned from such transactions can be attributed to the PE in India. The Hon’ble Supreme Court held there has to be some activity through PE for attracting the taxing statute and ,…

Hitt vs. DCIT, International Taxation, Cir.-1(1), Kolkata

In the result, both the appeals of the assessee are partly allowed for statistical purposes

ITA 348/KOL/2017[2013-14]Status: DisposedITAT Kolkata20 Jul 2018AY 2013-14

Bench: Hon’Ble Shri S S Godara, Jm & Shri M.Balaganesh, Am ]

For Appellant: Shri Sourav Agarwal, ARFor Respondent: Shri G. Mallikarjuna, CIT DR

Section 143(3)Section 144C(5)

…ment and services cannot be attributed to the Installation PE of the assessee in India. In this regard, we would like to place reliance on the decision of the Hon’ble Supreme Court in the case of Ishikawajima Harima Heavy Industries Limited vs DIT reported in 288 ITR 408 (SC) wherein it was clearly stated that in case the PE of a foreign company is not involved in any transaction carried out in India or outside India, no part of income earned from such transactions can be attributed to the PE in India. The Hon’ble Supreme Court held there has to be some activity through PE for attracting the taxing statute and ,…

Hitt Holland Institute of Traffic Technology B.V vs. DCIT, (It)-1(1), Kolkata

In the result, both the appeals of the assessee are partly allowed for statistical purposes

ITA 290/KOL/2016[2012-2013]Status: DisposedITAT Kolkata20 Jul 2018AY 2012-2013

Bench: Hon’Ble Shri S S Godara, Jm & Shri M.Balaganesh, Am ]

For Appellant: Shri Sourav Agarwal, ARFor Respondent: Shri G. Mallikarjuna, CIT DR

Section 143(3)Section 144C(5)

…ment and services cannot be attributed to the Installation PE of the assessee in India. In this regard, we would like to place reliance on the decision of the Hon’ble Supreme Court in the case of Ishikawajima Harima Heavy Industries Limited vs DIT reported in 288 ITR 408 (SC) wherein it was clearly stated that in case the PE of a foreign company is not involved in any transaction carried out in India or outside India, no part of income earned from such transactions can be attributed to the PE in India. The Hon’ble Supreme Court held there has to be some activity through PE for attracting the taxing statute and ,…

DCIT, Circle-5(1), Kolkata vs. M/S. Somany Ceramics Ltd. ( Formerly Known As Spl Ltd.), Kolkata

In the result, the appeal filed by the revenue is dismissed

ITA 80/KOL/2015[2004-2005]Status: DisposedITAT Kolkata19 Jul 2018AY 2004-2005

Bench: : Shri J. Sudhakar Reddy & Shri S.S.Viswanethra Ravia.Y 2004-05

For Respondent: Shri Saurabh Kumar, Addl. CIT, ld. Sr.DR

Section 143Section 143(3)

…so paid to the account held abroad. Therefore, there is no operation which is carried out in India for, which any income can be reasonably attributed. This principle has been upheld by the Apex court in the M/s. IshikawajmaHarima Heavy Industries Ltd Vs DIT (288 ITR 408) and CIT Vs M/s. Hyundal Heavy Industries Co Ltd (291 ITR 482) On the issue of commission to foreign based agent, similar view has been taken by the Apex court in the case of CIT vs M/s.Toshoku Ltd (125 ITR 525 (SC). Similar view has been taken by Delhi High Court in the case of CIT Vs M/s. EON Technology (P) Ltd (15 Taxmann.com 391). Even the CB…

DCIT (It) 2(1)(1), Mumbai vs. Cameron Australasia Pty . Ltd, Mumbai

ITA 3711/MUM/2016[2011-12]Status: DisposedITAT Mumbai13 Jul 2018AY 2011-12

Bench: Shri G.S.Pannu, Am & Shri Ravish Sood, Jm Dcit (It)-2(1(1), M/S Cameron Australasia Pty. 1St Floor, Scindia House, Ltd. C/O Pricewater Cooper Pvt. बिधम/ Ballard Pier, N.M.Road, Ltd. Plot No. 18A, Pwc House, Vs. Mumbai 400038 Gurunanak Road, Bandra (W) Mumbai 400050 स्थामी रेखा सं./ जीआइआय सं./ Pan No. Aaecc0202H (अऩीराथी /Appellant) (प्रत्मथी / Respondent) :

For Appellant: Shri Arvind Sonde, A.RFor Respondent: Shri M.V. Rajguru, Sr. D.R

Section 143(3)Section 144C(3)Section 44BSection 44D

…parate, divisible and independent activity was required to be evaluated independently. The CIT(A) while concluding as hereinabove, relied on the judgments of the Hon‟ble Supreme Court in the case of Ishikawajima-Harima Heavy Industries Limited. Vs. DIT (2007) 288 ITR 408 (SC) and CIT & Anr. Vs. Hyundai Heavy Industries Company Ltd. 291 ITR 482 (SC). Still further, the CIT(A) in order to fortify his view that in a case where the scope of work was divisible the taxability of independent revenue streams would need to be evaluated separately, relied on the judgment of the Hon‟ble High Court of Delhi in the case of Li…