- 2020 (6) TMI 159
Income accrued in India - gains arising to the Applicants (a private company incorporated in Mauritius) from the sale of shares held by the Applicants in Flipkart Private Limited (a private company incorporated in Singapore) to Fit Holdings S.A.RL. (a company incorporated in Luxembourg) - DTAA between India and Mauritius - identify the beneficial owner of the shares sold - tax liability cannot be decided in the proceeding under section 197 - HELD THAT:- There was no abuse of process of law or dubious ingenuity on the part of the applicant to circumvent any provision of law, if it had approached the AAR after passing of order under section 197 of the Act. This Authority in the case of SEPCO III [2011 (8) TMI 213 - AUTHORITY FOR ADVANCE RULINGS] had held that mere pendency of the proceedings under section 195 or section 197 of the Act or ev....... + More
- 2020 (2) TMI 1183
Income accrued in India - Capital gains derived by a 'resident' of a contracting state from the alienation of property other - Indo-Mauritius DTAA in regard to gains arising from the transaction of sale of shares - HELD THAT:- In the instant case the applicant was incorporated few days before the JV was formed and has no independent sources of funds or sources of income nor has any fiscal independence. All the funds are with the holding companies. The applicant has no tangible assets, business activities except for owning the shares of the JV. Subjecting the facts to various tests i.e., Fiscal nullity Test, Commercial/business substance Test, "Look at" Principle Test, Investment Participation Test, Time duration Test, Business operations Period in India Test, Generation of taxable revenues in India Test, Scheme and Domin....... + More
- 2019 (12) TMI 534
Accrual of income - offshore supply of equipments and materials etc. including supply of spares - DTAA between India and Japan - Scope of the term "a transaction" u/s 245N for advance ruling - the property in the goods and the title had passed outside India and the payment was also received in foreign currency outside India. - The Bill of Lading named JSW as the consignee of the goods and the commercial invoice was drawn by the applicant on JSW. Further, the Marine Insurance Policy was taken by the purchaser on its own for all the equipments supplied by the applicant under the contract for any loss/damage during transit after FOB delivery on the basis of INCOTERMS 2000. Held that:- In view of the above interpretation of a singular word as given by the various Courts under Income Tax Act as well as other Acts, it is crystal clear....... + More
- 2019 (4) TMI 67
Withdrawal of application for Advance ruling - HELD THAT:- Since the applicant is a non-resident, there is no bar in law preventing the Assessing Authority from passing an assessment order and the ITAT from deciding the appeal carried therefrom. Reference can be made to Section 245RR stating No income-tax authority or the Appellate Tribunal shall proceed to decide any issue in respect to which an application has been made by an applicant, being a resident, under sub-section(1) of Section 245Q. We also notice that the DR has no objection to the withdrawal of this application. Application is allowed to be withdrawn and is disposed off as ‘withdrawn’.
- 2019 (3) TMI 1312
Admission of application before AAR - whether issue pending before any income tax Authority, or Appellate Authority or any Court - allegation of tax avoidance - taxable as AOP or as separate entity - HELD THAT:- If we read both the reports together, it is apparent that the only objection raised by the Department appears to be regarding alleged tax avoidance. We asked Ld. DR to show us any material in support the plea of tax avoidance. However, at this stage he was unable to furnish any such material. We must note that this matter has been adjourned at least on two occasions. Hence it is not possible to adjourn it any further. We must also note that Ld.FCA for the applicant has strenuously objected to the Department’s case of tax avoidance. In the circumstances, the application will have to be admitted keeping the question of alleged tax avoidance open.
- 2019 (3) TMI 138
Earlier AAR filed in the AAR Mumbai Bench of this Authority as connected with the present application - HELD THAT:- It is necessary to direct that the said application be transferred to this Bench and tagged to the present application. Hence we direct that earlier AAR be tagged to the present application. Office to take necessary steps to ensure that the said application filed in AAR Mumbai Bench is transferred to this Bench and tagged to the present application. Office to issue necessary notice to the parties and communicate copy of this order to them.
- 2019 (2) TMI 1339
Application for advance ruling - Scrutiny assessment before AAR - HELD THAT:- There are no scrutiny proceedings pending before the assessing officer with regard to the question raised before the Hon’ble AAR. With out prejudice to the final report to be submitted u/s 245 R(4) after examining in detail all the facts relating to the transaction, the admission of the application may be accepted.” In view of the above, the application is admitted leaving all questions of law and facts open. The Department may submit its final report at the earliest.
- 2018 (6) TMI 618
Fixed place PE of the Applicant in India - Taxability of fees in respect of the services rendered for use of a global network and infrastructure to process card payment transactions for customers in India - DTAA with Singapore - functions performed by MIPs as significant functions - payment card programs are programs of Licensee (i.e. of Banks and FIs) or MasterCard - consideration for use of intangibles in India - Withholding of tax - Held that:- Applicant is carrying out its business of facilitation of authorization of transaction through fixed place, ie. MIPs, since MIPs situated in India are at its disposal. The functions performed by MIPs in facilitation of authorization transaction are not preparatory or auxiliary in character and are significant functions. Hence, MIPs create a PE of the Applicant in India. It is clearly laid down i....... + More
- 2018 (6) TMI 617
PE in India - non-compete fee receipt - consideration for transfer of the shares - income accrued in India - India-UK DTAA - Capital Gains or business income - different business than that of the payer of non-compete fee or the transferor of shares - Held that:- Revenue’s interpretation of section 28(va) to hold that recipient of non-compete should already have been carrying on the business which he has agreed not to carry on further is erroneous and contrary to the provisions of the Act. In order to attract section 28(va)(a), there is no condition of receiving a non-compete fee for agreeing not to carry on a business which the assessee was already carrying on. Hence, we do not agree with the Revenue that the fee received by the Applicant cannot be taxable under section 28(va) because the Applicant and MPS were carrying on different busin....... + More
- 2018 (6) TMI 556
Fixed Place PE - essential ingredients of a Service PE - services rendered to the Applicant company by its Indian affiliate viz. Aramco India - India and Kingdom of Saudi Arabia DTAA - ALP determination - appellant owned oil company of the Kingdom of Saudi Arabia - Held that:- The Revenue has indeed laboured hard to point out each of the clauses of the services to be rendered under the original Services Agreement and the Proposed Addendum, to make out its case that Aramco India was acting as an agent of the Applicant in India. Two things work against this position taken by the Revenue. Firstly, that Aramco India is a separately incorporated legal and taxable entity, and by virtue of para (8) of Article 5 of the DTAA, it does not automatically become a PE of the Applicant, and secondly, Clause 3 of the Proposed Addendum expressly excludes ....... + More
- 2018 (6) TMI 209
Permanent Establishment (PE in India) - scope of the agreement - payments received by the Applicant from the Indian hotel owner for provision of global reservation services (‘GRS’) - DTAA between India and Luxembourg - Royalty / Fee for technical services (FTS) - Held that:- the Indian hotel, Swissotel Kolkata,satisfies all the three tests and does constitute a fixed place PE of the Applicant with respect to these incomes. The Applicant is carrying on its entire business operations from this fixed place. The existence of a PE of the Applicant in India gets established within the meaning of Article 7 of the DTAA. We have held that the income of the Applicant is attributable to the fixed place PE in India, the question whether it can be characterised as ‘royalty’ or ‘fees for technical services’ becomes wholly academic. The payments receive....... + More
- 2018 (6) TMI 208
Representative/liaison office (LO) - Doctrine of Mutuality - India-Belgium DTAA - whether the liason office proposed to be established by in India would be liable to income-tax or India – whether membership fee and contribution from the Indian members would be liable to Income-tax – Applicant is rendering specific services for its members, income derived by it falls under section 28(iii) as ‘Profits and Gains of Business and Profession’? - PE in India - Held that:- Simply because some incidental activity of the assessee-society is revenue generating, the same does not provide any justification to hold that it is tainted with ‘commerciality’ and reaches a point where relationship of mutuality ends and that of trading begins. Where the principle of mutuality operates,and the profits cannot be distributed, but can only be utilized for the be....... + More
- 2018 (6) TMI 107
Taxability of fees received from Indian clients - withholding of tax - income from interest - whether fee payable by a customer in India under the financing arrangement would be taxable as ‘interest’ or FTS under Indo-France Tax Treaty - or whether it shall be taxable as business income - Held that:- Front end fee other than appraisal fee is to be paid after the signing of the agreement. Hence, front end fee other than appraisal fee has to be treated to be in relation to a debt claim and is income from interest under the India France DTAA following the view of JOINT DIRECTOR OF INCOME TAX (OSD) - (IT) RANGE 1, MUMBAI VERSUS M/S COMMONWEALTH DEVELOPMENT CORPORATION, [2010 (2) TMI 1150 - ITAT MUMBAI]. Commitment fee, cancellation fee, amendment fee and monitoring fee are directly related to debt claim as the fee are charged after disburseme....... + More
- 2018 (6) TMI 37
TDS liability u/s 195 - Income accrued in India - fees for technical services - whether payments made on account of resell agreement are fees for technical services or royalty under India-US Treaty - DTAA - human intervention in providing technical services - withholding of tax - Held that:- On the issue of human intervention in providing technical services, we agree with the principle held in Bharti Cellular Limited [2008 (10) TMI 321 - DELHI HIGH COURT] as also upheld by the Apex Court [2010 (8) TMI 332 - SUPREME COURT OF INDIA] that a human element is a pre-requisite for characterizing a service as a technical service and consequently treating payments for the same as fees for technical services. The Solutions provided by the Applicant without human intervention cannot be treated as provision of technical services. What is important to....... + More
- 2018 (4) TMI 460
Nature of income derived - ‘Royalty’ - Services provided by the Applicant to ONGC - whether to be construed to be in the nature of ‘Fees for Technical Services’ (‘FTS’) under section 9(1)(vii) - DTAA between India and UAE - PE in India - Held that:- The consideration for services provided by the Applicant to ONGC will not be construed to be in the nature of ‘Fees for Technical Services’ under section 9(1)(vii) of the Act. The consideration for services provided by the Applicant will not be construed to be in the nature of ‘Royalty’ under section 9(1)(vi) of the Act and/ or under Article 12 of the India UAE DTAA. The Applicant has a Permanent Establishment in India under Article 5 of the India UAE DTAA, in respect of its contract with ONGC. The income of the Applicant earned from its contract with ONGC would be taxable in India as business....... + More
- 2018 (3) TMI 738
Entitlement to the benefit of proviso to Section 112 (1) - concessional rate of tax at 10.506 % (inclusive of surcharge and cess) - non-resident assessee - tax on the long-term capital gains earned by the Applicant on sale of shares of Andhra Pradesh Paper Mills Ltd. an Indian listed company, pursuant to an open offer - Applicant is a Company registered in Finland - Held that:- Following the decision Cairn UK [2013 (10) TMI 430 - DELHI HIGH COURT] we conclude that the benefit under the proviso to section 112(1) of the Act could not be denied to the Applicant. Yes, the tax payable by the Applicant on the long term capital gains arising on the sale of equity shares of Andhra Pradesh Paper Mills Limited, an Indian listed company, are required to be computed at 10.506% (inclusive of surcharge and cess) of the amount of capital gains, as per the proviso to section 112(1) of the Income tax Act, 1961.
- 2018 (2) TMI 1428
Capital gains arising to the Applicant- Transferor, a tax resident of Mauritius, from sale of shares - Benefit of DTAA - whether the Transferee shall not have any liability to deduct tax at source under section 195? - department contended that the working of capital gain involves correctly working out the total sales consideration which in turn depends upon the value assigned to each share of SIPL and Scorpio and this involves the determination of fair market value of the said property Held that:- We do not feel that questions raised involve any valuation and determination of fair market value of property. The computation of capital gains is embedded in the concept of valuation and merely for this reason the question of capital gains arising in Application cannot be held to be barred by clause (ii) of the proviso to section 245 R(2). Espe....... + More
- 2018 (2) TMI 856
Taxability of capital gains in India - transfer of shares held in ‘AB’ India to its subsidiary company, ‘AB’ Singapore - eligibility of benefits of India-Mauritius tax treaty - benami transaction - Held that:- Neither was the Applicant acting on its own behalf in taking decisions like an independent company with a separate legal status in a foreign territory, regarding the investment in ‘AB’ India, though it was an Investment Holding company itself; and also that the manner and accounting followed in acquiring those shares only go to show that they were taken on its books on hindsight, at the directions of the Holding company. Only this can explain the various lacunae noticed, and as discussed above. It had only lent its name and was a benami of the ‘C’ Group. We are unable to rule that the shares were genuinely acquired by the Applicant,....... + More
- 2018 (2) TMI 855
Taxability of capital gains in India - transfer of shares held in ‘AB’ International Private Limited (‘AB’ International) to a group company, ‘AB’ Singapore Pte - eligibility of benefits of India-Mauritius tax treaty - Held that:- Yes, the Applicant would be entitled to the benefits of the Agreement between the Government of Mauritius and the Government of the Republic of India for the avoidance of double taxation and prevention of fiscal evasion; and the income and capital gains arising to the Applicant from the proposed sale of shares in ‘AB’ International to a group company in Singapore would not be liable to tax in India in terms of Article 13 of the said Treaty. Applicability of section 195 - whether tax has to be withheld on the gains arising from the sale of shares? - Held that:- As held in GE Technology Centre P. Ltd. v. CIT [2010....... + More
- 2018 (2) TMI 771
Entitlement to benefit of proviso to Section 112 (1) - tax payable on the long term capital gains arising on the sale of equity shares of Hero Honda Motors Ltd. - benefit of indexation under Second proviso to Section 48 - Held that:- The benefit of the proviso of Section 112(1) of the Act is applicable in the case of non-resident as well,in spite of section 48. This issue is identical to the above case and the decision in Cairn UK [2013 (10) TMI 430 - DELHI HIGH COURT] is squarely applicable. Following the above decision we conclude that the benefit under Section 112(1) of the Act could not be denied to the Applicant. We have been following this line in several cases and more recently in the case of Pan-Asia iGate Solutions, Mauritius, In Re [2014 (5) TMI 631 - AUTHORITY FOR ADVANCE RULINGS]. Claim deduction for expenses claimed as incurr....... + More