2025 (6) TMI 497 - HC - Income Tax

Application u/s 197 seeking the nil withholding tax certificate - petitioner claims that costs cross charges are reimbursement of costs on cost-to-cost basis and the same are not chargeable to tax under the Act - AO concluded that the services rendered by the petitioner to its AE are technical services and the charges paid are taxable as FTS. HELD THAT - Petitioner renders wide range of services to AEs. None of the services can be considered as technical services within the meaning of paragraph no.4 of Article 13 of the India-UK DTAA as the same is not ancillary and subsidiary to the application or enjoyment of the right property or information for which the petitioner receives royalty as covered under Article 13(3) of the India-UK DTAA. The services rendered by the petitioner also do not make available technical knowledge experience skill know-how or processes to AIPL. The expression make available must be understood to mean transfer of technical knowledge experience skill or know-how or process which enables the recipient to absorb and utilise the same. If the service provided does confer any right in favour of the recipient in respect of the knowledge experience skill or know-how; the condition to make available such technical knowledge know-how skill or process so as to fall with the sweep of FTS would not be satisfied. AO has also observed that it could not be ruled out that the petitioner has a PE in India. However there is no material on record to sustain this conclusion as well. Insofar as the IT infrastructure and software development is concerned the petitioner had explained that it maintains the network connectivity and ensures that the business of AIPL is being maintained and run at optimum effectiveness and maximum security. The same would include the applications and software which are used by the professionals of AIPL. However the assumption that there is any transfer of right in relation to the said software or applications to AIPL is not supported by any material on record. Although the petitioner has also stated that it provided the software development services with respect to the various software applications which are used by AIPL s business. However there is nothing on record to indicate that the AE acquired any rights in relation to these software and applications developed by the petitioner. Given the fact that AIPL did not acquire any copyright in the software the cross charges paid by them could not be construed as royalties within the scope of Article 13 (3) of the India-UK DTAA. This question issue is covered by the decision of the Supreme Court in the case of Engineering Analysis Centre of Excellence Private Limited 2021 (3) TMI 138 - SUPREME COURT Thus the impugned order is not sustainable and therefore is set aside. We accordingly direct the AO to issue the necessary certificate or NIL withholding Tax Certificate in respect of the cross-cost charges as received by the petitioner from AIPL. Assessee appeal allowed.

Summary

The core legal questions considered by the Court include:

1. Whether the cross charges received by the petitioner from its associated enterprise (AE) in India constitute 'fees for technical services' (FTS) under Section 9(1)(vii) of the Income Tax Act, 1961 and Article 13 of the India-UK Double Taxation Avoidance Agreement (DTAA).

2. Whether the services rendered by the petitioner make available technical knowledge, experience, skill, know-how, or processes to the AE, thereby falling within the scope of FTS under the DTAA.

3. Whether the cross charges for software and IT infrastructure procured centrally and shared with the AE amount to royalties under Article 13(3) of the India-UK DTAA.

4. The applicability of the source rule under Indian tax law for withholding tax on payments made to a non-resident.

5. Whether the petitioner has a permanent establishment (PE) in India, which would affect the taxability of the receipts.

Issue-wise Detailed Analysis

1. Characterization of Cross Charges as Fees for Technical Services (FTS)

Relevant legal framework and precedents: The definition of FTS under Section 9(1)(vii) of the Income Tax Act and Article 13(4) of the India-UK DTAA was pivotal. Article 13(4) defines FTS as payments for rendering technical or consultancy services which either (a) are ancillary and subsidiary to the application or enjoyment of certain rights or properties or (b) make available technical knowledge, experience, skill, know-how or processes.

Precedents such as CIT v. Relx Inc. and CIT v. De Beers India Minerals Pvt. Ltd. were considered to interpret the 'make available' clause, emphasizing that the service must transfer technical knowledge or skill enabling the recipient to independently apply it in the future.

Court's interpretation and reasoning: The Court noted that the petitioner provided corporate and management services including legal, tax, treasury, finance, IT, human resources, risk management, and other governance support functions. These services were rendered through senior management and shared service providers, primarily involving oversight, review, and governance rather than transfer of proprietary technical knowledge or processes.

The Court emphasized that the petitioner did not make available any technical knowledge, experience, skill, know-how, or processes to the AE. The petitioner's services did not confer any right or enable the AE to independently utilize such knowledge or skills without the petitioner's continued involvement. The mere incidental benefit or enhancement of the AE's capabilities over time was not sufficient to satisfy the 'make available' test.

Key evidence and findings: The petitioner's detailed description of services, organizational structure, allocation of costs, and distinctions between services rendered by different corporate entities (e.g., ATS Inc. and AECOM UK) were considered. The petitioner clarified that the cross charges were on a cost-to-cost basis and did not involve transfer of intellectual property or proprietary rights.

Application of law to facts: Applying the DTAA's definition, the Court found that the petitioner's services were managerial and corporate support in nature and did not constitute FTS. The services were not ancillary or subsidiary to the application or enjoyment of rights or properties as defined in Article 13(3), nor did they make available technical knowledge or processes.

Treatment of competing arguments: The Assessing Officer (AO) argued that the services were technical, managerial, and consultancy in nature requiring special skills and that the AE benefitted by gaining technical knowledge and experience. The AO also relied on rulings such as Shell India Markets Pvt. Ltd. and Areva T&D Ltd. to support the 'make available' clause being satisfied. The Court rejected these contentions as speculative and unsupported by material evidence.

Conclusions: The Court concluded that the cross charges do not fall within the definition of FTS under the India-UK DTAA or the Income Tax Act.

2. Taxability of Cross Charges for Software and IT Infrastructure as Royalties

Relevant legal framework and precedents: Article 13(3) of the India-UK DTAA defines royalties, including payments for the use or right to use copyrights, patents, trademarks, designs, secret formulas, processes, or information concerning industrial, commercial, or scientific experience. The Supreme Court decision in Engineering Analysis Centre of Excellence Private Limited v. CIT was cited regarding the non-taxability of certain software-related payments as royalties.

Court's interpretation and reasoning: The petitioner maintained that software and IT infrastructure costs were reimbursed on a cost basis and that no copyright or proprietary rights were transferred to the AE. The Court noted the absence of any evidence indicating transfer of rights or ownership in software or applications to the AE.

Key evidence and findings: The petitioner's submissions and invoices showed that the software and tools were centrally procured and shared without alienation of rights. The AO's assertion that such payments constituted royalties was not supported by evidence.

Application of law to facts: The Court applied the Supreme Court's binding precedent to hold that such reimbursements do not constitute royalties under the DTAA.

Treatment of competing arguments: The AO's reliance on pending review petitions was dismissed as the binding Supreme Court judgment could not be disregarded on that basis.

Conclusions: The cross charges for software and IT infrastructure do not constitute royalties and are not taxable as such under the DTAA.

3. Applicability of Source Rule and Withholding Tax under Indian Law

Relevant legal framework: Section 197 of the Income Tax Act allows for the issuance of a certificate for 'nil' or lower deduction of tax at source (TDS). The AO relied on the source rule to contend that payments made to the non-resident petitioner have a source in India and are subject to withholding tax.

Court's interpretation and reasoning: While the AO found that the receipts had an Indian source and were taxable, the Court focused on the nature of the services and the DTAA provisions. Since the services did not constitute FTS or royalties, the basis for withholding tax was undermined.

Conclusions: The Court set aside the AO's order rejecting the 'nil' withholding tax certificate application and directed issuance of the certificate accordingly.

4. Existence of Permanent Establishment (PE) in India

Relevant legal framework: Article 5 of the DTAA defines PE and its tax implications. The AO suggested the possibility of the petitioner having a PE in India.

Court's interpretation and reasoning: The Court found no material evidence on record to sustain the AO's conclusion regarding the existence of a PE.

Conclusions: The question of PE was not established and did not affect the outcome.

Significant Holdings

"We find no material on record which would suggest that the petitioner makes available any technical knowhow, knowledge, skill or process to its associated enterprises which could be construed as FTS under Article 13(4) of the India-UK DTAA."

"The expression 'make available' must be understood to mean transfer of technical knowledge, experience, skill or know-how, or process, which enables the recipient to absorb and utilise the same."

"If the service provided does confer any right in favour of the recipient in respect of the knowledge, experience, skill or know-how; the condition to 'make available' such technical knowledge, know-how, skill, or process so as to fall within the sweep of FTS would not be satisfied."

"Given the fact that AIPL did not acquire any copyright in the software, the cross charges paid by them could not be construed as royalties within the scope of Article 13 (3) of the India-UK DTAA."

"The decision of the Supreme Court is binding under Article 141 of the Constitution of India and could not have been disregarded on the ground that a review petition is pending."

"The impugned order is not sustainable and therefore is, set aside. We, accordingly, direct the AO to issue the necessary certificate or 'NIL' withholding Tax Certificate in respect of the cross-cost charges as received by the petitioner from AIPL."

The Court established the core principle that managerial and corporate support services, which do not transfer technical knowledge or confer rights enabling independent use by the recipient, do not constitute FTS under the DTAA. Similarly, reimbursement of costs for software and IT infrastructure without transfer of copyright or proprietary rights does not amount to royalties. The ruling clarifies the strict interpretation of the 'make available' clause and reinforces adherence to binding Supreme Court precedents in tax matters.