2011 (11) TMI 484 - AT - Income Tax

India USA DTTA services rendered in relation to health care - determination of nature of fees and its taxability received from Wockhardt Hospital Ltd(WHL) and MAX India Ltd(MAX) Royalty or Fees for Included Services(FIS) or Business Profits - Held that - Article 12(4)(b) of DTAA states in order to attract taxability the technical knowledge experience skill etc. must remain with the person utilizing the services even after the rendering of the services has come to an end. In instant case services rendered are purely in the nature of advisory services. Nothing is made available to Max or WHL by the assessee and consideration for advisory services rendered cannot be treated as fees for included services under Article 12(4)(b). Further with respect to usage of logo by WHA it is held that where the agreement between the parties provides that there was no economic consideration for right to use the name it cannot be said that any payment can be called royalty. As decided in case of Sheraton International Inc. v. Dy. DIT 2006 (10) TMI 183 - ITAT DELHI-A where main purpose of the agreement was to render services and use of trademark or trade name was only incidental then the entire payment or even a part of it cannot be considered as royalty. Thus fees received are taxable as business profits in India. Since the Assessee did not have a permanent establishment in India the same was held to be not taxable - in favour of assessee. Reimbursement of expenses - Held that - Prima facie the payments are in the nature of reimbursement of expenses. In the absence of any finding by the AO to the contrary the request to remand the issue for fresh consideration cannot be acceded. Since payments made are held to be business profits not taxable in India thereby there is no obligation to deduct tax at source - in favor of assessee.

Summary

Issues Involved:
1. Taxability of fees received from Wockhardt Hospital Ltd. (WHL).
2. Taxability of fees received from Max India Ltd. (MAX).
3. Classification of fees as Royalty or Fees for Included Services (FIS) under the Double Taxation Avoidance Agreement (DTAA) between India and USA.
4. Treatment of reimbursement of expenses.
5. Application of foreign currency exchange rate for conversion of fees.

Issue-wise Detailed Analysis:

1. Taxability of Fees Received from Wockhardt Hospital Ltd. (WHL):

The Assessee received USD 9,30,000 from WHL for services rendered. The Assessing Officer (AO) classified 90% of this amount as Royalty and 10% as FIS under Articles 12(3) and 12(4) of the DTAA between India and USA. However, the CIT(A) held that 50% of the fees were Royalty and the remaining 50% were payments for teaching in or by educational institutions, thus non-taxable under Article 12(5)(c). The Tribunal reviewed the nature of services provided, which included consulting on healthcare projects, training programs, and facility-specific deliverables. It concluded that the services did not make available any technical knowledge, experience, or skill to WHL, thus not qualifying as FIS. The Tribunal ruled that the entire payment was business profits, not taxable in India due to the absence of a Permanent Establishment (PE).

2. Taxability of Fees Received from Max India Ltd. (MAX):

The Assessee received USD 2,00,000 from MAX for healthcare-related services. The AO categorized 90% as Royalty and 10% as FIS. CIT(A) determined the entire amount as FIS. The Tribunal referenced its earlier decisions for AY 2000-01 and 2001-02, where similar payments were deemed business profits, not taxable in India due to the lack of a PE. The Tribunal reiterated that the services provided were advisory and did not make available any technical knowledge or skill to MAX. Consequently, the entire payment was considered business profits, not taxable in India.

3. Classification of Fees as Royalty or Fees for Included Services (FIS):

For both WHL and MAX, the Tribunal analyzed the agreements and services provided. It emphasized that for a payment to qualify as FIS under Article 12(4)(b) of the DTAA, the services must make available technical knowledge, experience, or skill. The services rendered by the Assessee were advisory and did not transfer any technical know-how or skills to WHL or MAX. Therefore, the payments did not qualify as FIS or Royalty but were business profits.

4. Treatment of Reimbursement of Expenses:

The Assessee received USD 93,371 as reimbursement of expenses from WHL, MAX, and Shri Ramachandra Medical College and Research Institute (SRMCRI). The AO included these reimbursements as part of the taxable income, treating them as Royalty and FIS. The CIT(A) and the Tribunal held that these were genuine reimbursements for travel, lodging, and other expenses incurred by the Assessee's personnel while rendering services. The Tribunal directed the AO to exclude these reimbursements from taxable income, reaffirming that they were not part of the consideration for services rendered.

5. Application of Foreign Currency Exchange Rate for Conversion of Fees:

The Assessee contested the exchange rate applied by the AO for converting fees into Indian Rupees. Although the CIT(A) did not adjudicate this ground, the Tribunal deemed it academic, given the conclusion that the fees were not taxable in India. Therefore, the issue of exchange rate application was not addressed further.

Conclusion:

The Tribunal ruled that the payments received from WHL and MAX were business profits, not taxable in India due to the absence of a PE. It also held that reimbursements of expenses were not part of taxable income. Consequently, the appeals by the revenue were dismissed, and the cross-objections by the Assessee were partly allowed.