BEFORE THE AUTHORITY FOR ADVANCE RULINGS

(INCOME TAX) NEW DELHI

Airports Authority of India, In re

Justice P.V. Reddi, Chairman

A. Sinha and Rao Ranvijay Singh, Members

A.A.R. No. 753-754 of 2007

February 28, 2008

Section 245R of the Income-tax Act, 1961 – Advance ruling – Procedure on receipt of application for – Applicant seeks advance ruling in respect of its obligation to deduct tax under section 195 in connection with contracts entered into by it with a foreign company ‘R’ – Revenue challenges maintainability of application contending that since identical question regarding R’s liability to pay income-tax in India was pending before appellate authority, application for advance ruling is liable to be rejected in limine – Whether applicant’s right to have recourse to advance ruling on point of tax deduction cannot be defeated by reason of pendency of an appeal filed by ‘R’, though a related issue has to be decided in that appeal and, therefore, application is maintainable and is not hit by embargo laid down in clause (i) of proviso to section 245R(2) – Held, yes

Section 90 and section 195 of the Income-tax Act, 1961, read with article 7 of the DTAA between India and USA – Double taxation relief – Where agreement exists – Applicant entered into two contracts of hardware repair and software maintenance with a foreign company ‘R’ – Applicant seeks advance ruling in respect of its obligation to deduct tax under section 195 in connection with those contracts and rate at which tax has to be withheld in relation to payments made to ‘R’ on software maintenance contract – Whether payments received by ‘R’ from applicant in connection with hardware repair contract were not liable to be taxed in India by virtue of article 7 of DTAA and, therefore, applicant is not liable to deduct tax on payments made in respect of such contract – Held, yes – Whether payment received by ‘R’ in respect of software maintenance contract was liable to tax in India in its hands and tax was to be withheld by applicant in relation to that payments at rate of 10 per cent – Held, yes

Section 245N of the Income-tax Act, 1961 – Applicant – Whether a resident who has entered into a transaction with a non-resident is an applicant within meaning of section 245N(b) and such applicant can approach Authority of Advance Ruling to determine a question which has bearing on tax liability of non-resident collaborator – Held, yes

FACTS

The applicant, a statutory authority, entered into two contracts namely hardware repair support contract and software maintenance support contract of modernization of air traffic services (MATS) with a foreign company ‘R’. The two contracts were in continuation of previous contracts of the year 2003. The applicant in the instant application seeks advance ruling primarily on issue as whether it is under an obligation to deduct tax at source under section 195 in connection with the two contracts and the rate at which the tax has to be withheld in relation to payments made to ‘R’ on software maintenance contract. However, the applicant had approached the AAR earlier for giving ruling on similar issues arising out of similar contracts entered into between the applicant and ‘R’ on 4-2-2003. The applicant has perceived the need to obtain the ruling afresh probably for the reason that the transaction evidenced by the contract is technically a fresh one and secondly for the reason that the concerned Income-tax authority had taken a different view in the course of assessment proceedings of ‘R’ which might have repercussions on the applicant as well.  The Authority in the earlier ruling held that payments received by ‘R’ from the applicant in connection with hardware repair contract were not liable to be taxed in India under the Act.

In view of DTAA between India and USA, and that the deputation of an engineer by ‘R’ for the purpose of installation and testing of the repaired software will not constitute ‘R’ permanent establishment in India and the payment received by ‘R’ under this transaction is liable to tax in India in the hands of the recipient i.e. ‘R’. The revenue seeks to canvas the correctness of the conclusion reached by the authority in the earlier ruling on the ground that the Authority was not apprised of the relevant facts relating to the existence of PE, and that the subsequent investigation in the context of assessment proceedings of ‘R’ revealed the existence of PE even in regard to hardware repair contract. The revenue has challenged the maintainability of the application for advance ruling by contending that the applicant cannot invoke the jurisdiction of the authority in view of the embargo laid down in clause (i) of the proviso to section 245R(2).   The revenue contended that since the identical question regarding ‘R’ liability to pay income-tax in India was pending before the appellate authority even before the instant application was filed,  the application for advance ruling is, liable to be rejected in limini .

HELD

The reasons given in the earlier ruling pronounced by the authority in the case of applicant itself, squarely applies to the instant applications as well. [Para 8]

There is nothing in the assessment orders relating to ‘R’ which substantiates the revenue’s version that there was a permanent establishment of ‘R’ in India in connection with the hardware repairs support contract or for that matter the software maintenance contract both of which originated in 2003 and were renewed in 2006.  In fact, there is no definite finding supported by reasons which throws light on the existence of P.E. in connection with the execution of these contracts.  [Para 9.1]

There is nothing in the assessment order or the statement of ‘M’, or in the terms of the instant contracts which unerringly point to the existence of P.E.  On the other hand, the probability is that as the entire activity of repair of equipment and rectification of anomalies took place outside India and the applicant or its agent took delivery of the repaired equipments, there was very little part which the liaison office could have played in the implementation of contracts in question.  [Para 9.2]

Therefore, the earlier ruling does not require reconsideration on the ground that the concession given by the department was wrong or that the applicant did not make frank disclosure of material facts on the issue of PE.  The endeavour of the revenue to project some doubts on the correctness of earlier ruling has proved to be an infructuous exercise. [Para 10]

As regards the objection of the revenue that the applicant could not invoke jurisdiction of authority, it is true that the question as to whether ‘R’ is liable to pay income-tax in India on the payments received by it under the contract with the applicant was decided by the Assessing Officer in the case of ‘R’ under section 147, read with section 143(3) for two assessment years, i.e., 2003 to 2005 and aggrieved by such assessments, ‘R’ filed appeals which are now pending. [Para 11.1]

Sub-clause (ii) of clause (a) of section 245N envisages determination by the authority in relation to the tax liability of a non-resident arising out of a transaction, which had been undertaken or is proposed to be undertaken by a resident applicant with such non-resident.  Sub-clause (ii) to clause (b) of section 245N confers the qualification of ‘applicant’ on such resident.  Thus, a resident who has entered into a transaction with a non-resident, as in the instant case, is an applicant within the meaning of section 245N(b) and such applicant can approach the authority to determine a question which has bearing on the tax liability of its non-resident collaborator  under sub-clause(ii) of clause (a).    There is no bar, either express or implied against a resident applicant falling within the scope of sub-clause (iii) invoking the jurisdiction of the authority for a determination under sub-clause (ii) of clause (a) of the same section.     The fact that such resident is a PSU notified under sub-clause (iii) of clause (b) should not make any difference. In addition to clause (iii), a PSU, being a resident, can very well fall within the sweep of clause (ii) of section 245N if it has undertaken a transaction with a non-resident and it can seek a ruling in respect of tax liability of non-resident as per clause (a)(ii) of section 245N.   [Para 11.3]

The question raised by the applicant relating to tax deduction at source is not the question which is pending for consideration by the appellate authority.  The obligation of the applicant to deduct tax at source at the prescribed rate and to make it over to the department is cast under section 195(1). Failure to deduct the tax and pay it to the Government entails serious consequences under the provisions of section 40(a)   and section 271C.   That is why the applicant is before the authority.  Section 195(1) pre-supposes that the sum payable to the non-resident/foreign company must be chargeable to tax under the provisions of the Act.  That means the question of tax deduction is linked up with the tax liability of the non-resident/foreign company to whom the payment has to be made by the applicant under the transaction entered into with the non-resident.  The applicant, therefore, seeks determination that the foreign company – ‘R’ is not liable to pay income-tax in India on the amounts received by it from the applicant and, therefore, the applicant is under no obligation to deduct tax under section 195(1).  It is true that in the process of deciding the applicant’s legal obligation under section 195(1), the non-resident’s liability to pay income tax on the said sum has to be decided, but, on that account the question or issue about tax deduction cannot be said to be pending before the income-tax appellate authority.  In the case of appeal of ‘R’, its liability under the provisions of the Act, read with DTAA arises for consideration directly and that is the sole question to be decided in appeal but in the instant application the question to be decided at the instance of the applicant is about tax deduction at source.   No doubt, ‘R’s liability to pay income-tax looms large in the proceedings before the Authority also but the decision on this question is incidental to the determination of the applicant’s obligation to deduct tax at source.  They may be inter-related or allied issues but the question raised before the Authority cannot be said to be identical nor can it be said to be the very same question pending determination by the appellate authority.  This distinction, though appears to be subtle, is real. The applicant’s right to have recourse to advance ruling on the point of tax deduction cannot be defeated by reason of pendency of an appeal filed by ‘R’, though a related issue has to be decided in that appeal.  The embargo under the proviso to section 245R(2) should be strictly construed so that an eligible applicant is not denied the remedy to have an early ruling in the matter.  The applicant need not be called upon to go on deducting and paying income tax until and unless the appeal of ‘R’ is decided.  Assuming that the applicant has the alternative remedy of filing an application before the ITO under section 195(2), it does not operate as a legal bar to the maintainability of the application before the authority.  The concept of tax deduction at source under the Act has its own scheme and nuances.  It stands as a separate issue although aligned with the substantive tax liability of the recipient of income. [Para 13]

Therefore, the application is not hit by the embargo laid down in the first part of clause(i) to the 2^nd proviso to section 245R(2). [Para 13.1]

The issue relating to tax deduction at source regarding which determination is sought by the applicant, is an issue ‘in relation to’ the tax liability of non-resident, namely, ‘R’. Therefore, it falls within the purview of sub-clause(ii) of clause(a) to section 245N. [Para 13.3]

Regarding the applicant’s obligation to deduct tax at source. The applicant is not legally required to deduct tax on the payments made to ‘R’ in respect of hardware repair contract. Further, the rate at which the tax has to be withheld in relation to the payments made to ‘R’ on the software maintenance contract should be 10 per cent, apart from the applicable surcharge. [Para 15 and 16]