1993 (6) TMI 136 - AT - Income Tax

Collaboration Agreement Foreign Company Income Deemed To Accrue Or Arise In India Technical Know-how

Summary

Issues Involved:
1. Whether Appendix-A dated November 12, 1981, is a new agreement or a continuation of the old agreement dated January 29, 1976.
2. The applicable rate of tax on payments made under Appendix-A for lump sum consideration and special engineering services.

Issue-wise Detailed Analysis:

1. Nature of Appendix-A:
The primary issue was whether Appendix-A dated November 12, 1981, constituted a new agreement or was merely a continuation of the old agreement dated January 29, 1976. The Tribunal observed that Appendix-A governed equipment for 500 MW power plants, which was distinct from the 200 MW units covered by the original agreement. The technological specifications for 500 MW units were qualitatively different from those for 200 MW units. The Tribunal noted that the format of Appendix-A, which included amendments to the old agreement, did not alter its nature as a new agreement. The Tribunal concluded that Appendix-A was indeed a new agreement entered into after April 1, 1976.

2. Applicable Rate of Tax:
The Tribunal examined the tax implications under the provisions of the Income Tax Act, particularly sections 9(1)(vi), 9(1)(vii), and 115A. The Tribunal noted that the lump sum consideration of Sw.Fr. 1,125,000 and payments for special engineering services under Appendix-A were characterized as royalty under section 9(1)(vi). Consequently, the applicable tax rates were determined as follows:

- For the assessment year 1985-86, the lump sum amount of Rs. 17,66,250 was chargeable to tax at 20% under section 115A(1)(b)(ii)(1).
- Payments for special engineering services were chargeable to tax at 40% for the assessment years 1985-86 and 1986-87 under section 115A(1)(b)(ii)(2), and at 30% for the assessment year 1987-88 under section 115A(1)(b)(ii) as substituted by the Finance Act, 1986.

Conclusion:
The Tribunal upheld the CIT(A)'s decision that Appendix-A was a new agreement and that the applicable tax rates were as claimed by the assessee. The Tribunal dismissed the departmental appeals, affirming that the payments made under Appendix-A were subject to tax as royalty under section 9(1)(vi) of the Income Tax Act.