In the ITAT,
Amadeus Global
Travel Distribution S.A.
v.
Deputy
Commissioner of Income-tax, Non-Resident circle, New Delhi
D.R. SINGH
JUDICIAL MEMBER
AND DEEPAK R.
SHAH, ACCOUNTANT MEMBER
I.T. APPEAL NOS.
2143 TO 2145 (
[Assessment years
- 1996-97 to 1998-99]
November 30, 2007
Section 9, read with section 5 of Income-tax Act, 1961 - Income - Deemed to accrue or arise in India - Assessment years 1996-97 to 1998-99 - Assessee, a Spanish company developed a fully automatic computerized reservation and distribution system (CRS) with ability to perform comprehensive information, communication, reservations, ticketing, distribution and related functions on a worldwide basis for travel industry, particularly participating airlines, hotels etc. - Assessee was maintaining a mainframe computer in Germany which was connected to server of participant airlines/hotels etc. - For purpose of promoting said CRS system assessee appointed national marketing companies (NMCs) of various countries as their agents - It engaged an Indian company as distribution agent in India - Indian agent entered into subscribes agreement with travel agents to provide them computer, connectivity, access code and support services - Assessee paid all expenses for installation of computer at premises of travel agents and it also remunerated Indian company for using their services by way of distribution fees - On basis of booking made by travel agents in India, income generated to assessee but it accrued only when booking was completed at desks of computers of subscriber travel agent in India - Thus, a continuous seamless process was involved at lease part of which was in India - Assessee’s case was that it had neither any permanent establishment (PE) nor any operation in India, hence, no part of its income would be taxable in India - Whether since computers at subscriber’s desk were not dumb or in nature of kiosk incapable of performing any function and computers along with connectivity and configuration being supplied either by assessee or through its agent enabled subscribers to perform ticketing and booking functions, there was a direct business connection established in India - Held, yes - Whether, therefore, in terms of section 9(1)(i), income in respect of booking, which took place from equipment i.e. computer in India could be deemed to accrue or arise in India and, hence, taxable in India - Held, yes - Whether since only configuration and connectivity through CRS were being provided in India but CRS as a whole was developed and maintained outside India and risk in that regard entirely rested with assessee which was in Spain, in such circumstances, 15 per cent of revenue accruing to assessee in respect of booking made in India could be reasonably attributed as income accruing or arising in India and chargeable under section 5(2) read with section 9(1)(i) - Held, yes - Whether, however, since remuneration paid by assessee to Indian agent consumed its entire income accruing or arising in India, in view of Circular No. 23 dated 23-7-1969, no income would be available to be charged to tax in India - Held, yes
Section 90 of the Income-tax Act, 1961 read with articles 5 and 7 of
the DTAA between India and Spain - Double Taxation Relief - Where agreement
exists - Assessment years 1995-96 to 1998-99 - Whether for a place of business
to constitute a PE, enterprise using it must be carrying on its business wholly
or partly through it and it is not necessary that whole of business should be carried
on through such PE or fixed place - Held, yes - Whether a PE will nevertheless
exist if business of enterprise is
carried on mainly through automatic equipment and activities of personnel being
restricted to setting up and operating such equipment and it will still exist
if enterprise which sets up machine also operates and maintains them for its
own account irrespective of fact as to whether machines are operated by itself
or by a dependent agent - Held, yes - As stated under heading ‘Income deemed to
accrue or arise in India’ for reservation and ticketing, computer connectivity
were installed by assessee in India through its Indian agents - Computers so
installed at premises of subscribers were not capable of performing reservation
and ticketing part of CRS system without authority of Indian agent and further
such computers could not be shifted from one place to another even within
premises of subscriber without authority of assessee, thus, assessee exercised
completed control over computers installed at premises of subscribers - Whether
premises of subscribes would amount to a fixed place of business for carrying
on business of enterprise in India and assessee could be said to have
established a PE in India within meaning of article 5(1) and exception provided
in article 5(3) would not apply - Held, yes - Whether since entire business of
Indian company appoint as agent of assessee in India was to provide data
processing and software development services together with relative
distribution of CRS to subscribers in India and Indian company had also an
authority to enter into agreements with subscribers, thus, functionally as well
as financially it was depended entirely on assessee, and it could therefore, be
said that said agent was a dependent agent of assessee who had habitually
exercised authority to conclude contracts on behalf of assessee and to that
extent assessee had a PE in India - Held, yes - Whether since computer supplied
by assessee’s distribution agent to subscribers travel agents were not dealt
with by assessee or which was by itself source of revenue clause (b) of article
5(4) would not apply to consider dependent agent as PE of assessee in India as
said article applies only where dependent agent habitually maintains stock of
goods from which he regularly delivers goods on behalf of enterprise - Held,
yes
The assessee, a tax resident of
The Assessing Officer, however, holding that the assessee had a business
connection in India and ‘A’ was its permanent establishment (PE) in India that;
the computer hardware/software provided by it to travel agent also constituted
its PE in India; that its source of income was the software/hardware installed
at the travel agents’ desk in India; that ‘A’ was assessee’s dependent agent
since it had authority to conclude contract with the travel agents on
assessee’s behalf; and that since the assessee had itself claimed deduction for
certain expenses in that regard, it could not claim that income earned by it
relatable to the said expenses was not liable to tax in India, brought to tax
the entire revenue received by it from the airlines for the segments booked
from India through the CRS developed by it.
Further, he did not allow deduction for various expenses incurred by the
assessee in relation to generation of revenue brought to tax in
On second appeal:
Issue of taxability of income
The scope of total income is described in Section 5. As per section 5(2), the total income of a
person, who is a non resident to the extent which is received or deemed to be
received in
The assessee had developed a fully automatic reservation and distribution
system with ability to perform comprehensive information, communication,
reservation, ticketing, distribution and related functions on a worldwide
basis. Through that system, the assessee provided service to various
participants i.e. airlines and hotels etc. whereby the subscribers who were enrolled
through the efforts of NMC could perform the functions of reservations and
ticketing etc. Thus the said system was capable of not only processing the
information of various Airlines for display at one place but also enabled the
subscribers to book tickets in a way which was a seamless system originating
from the desk of the subscriber’s computer which may or may not be provided by
the assessee but which in all cases were configured and connected to such an
extent that such computers could initiate or generate a request for reservation
and also receive the information in that regard so as to enable the subscriber
to book the airlines seat or hotel room. The request which originated from the
subscriber’s computer ended at the subscriber’s computer and on the basis of
information made available to the subscriber, reservations were also possible.
It was to be noted that all the subscribers in respect of which income was held
taxable were situated in
Issue of quantum of taxable income
As per section 9(1)(i) income accruing or arising whether directly or
indirectly through or from any business connection in
Issue of Taxable income after consumption
The activities of the assessee in
Issue of Existence of Permanent Establishment:
Article 5(1) of the DTAA between India and Spain gives a general definition of the term “Permanent establishment” which brings out its essential characteristic of a permanent establishment in the sense of convention i.e. a distinct sites, a fixed place of business through which the business of an enterprises was wholly or partly carried on. Thus what is to be seen is whether there is existence of a place of business i.e. a facility such as a premises or in certain instances machinery or equipment. The place of business must be fixed i.e. it must be established at a distinct place where a certain degree of permanence can be attached. Carrying on of the business of the enterprise should be through such fixed place of business. This means that the person who is in one way or the other is dependent on the enterprise, conduct the business of the enterprises in which such fixed place is situated. The term ‘place of business’ covers any premises, facility or installation used for carrying on the business of the enterprise, whether or not they are used exclusively for that purpose. A place of business may also exist where no premises are available or required for carrying on the business of the enterprise and it simply has a certain amount of space at its disposal. It is immaterial whether the premises, facilities or installations are owned or rented or are otherwise at the disposal of the enterprise. A place of business may thus be constituted by a pitch in a market place or by a certain permanently used area. The place of business can be situated in the business vicinity of another enterprise. What is to be seen is that in fact an enterprise has a certain amount of space at its disposal, which is used for business activities and then it is sufficient to constitute a place of business. No formal legal right to use that place is visualized or required. A PE can exist even where an enterprise unauthorizingly or illegally occupies certain locations where it carried on its business. For a place of business to constitute a PE, the enterprise using it must be carrying on its business wholly or partly through it. It is not necessary that whole of the business should be carried on through such PE or fixed place. The assessee contended that for application of paragraph 1 of Article 5 of the Treaty, it must have a productive character i.e. contribution to the profits of the enterprise. However, considering paragraph 1 of Article 5 of the Treaty, it was not so mentioned within the framework of established business. It would be appropriate to presume that each part of the activities carried on contributes to the productivity of the whole. Thus, even if some contribution is made in carrying on the business as a whole, even then it can be said that the business of an enterprises would partly be carried on from such place and accordingly a PE of such enterprise. Where the business of an enterprise is carried on mainly by the entrepreneur or employees who receive instructions from the enterprise, the rights of such persons in its relationship with third parties are irrelevant. So far as paragraph 1 of article 5 is to apply whether or not, the dependent agent is authorized to conclude contracts is irrelevant so long as he operates from the fixed place of business. The PE will nevertheless exist if the business of the enterprise is carried on mainly through automatic equipment and the activities of the personnel being restricted to setting up and operating such equipment APE will still exist if the enterprise which sets up machine also operates and maintains them for its own account irrespective of the fact as to whether machines are operated by itself or by a dependent agent. [Para 23]
In the instant case it was seen that the CRS, which was the source of revenue was partially existent in the machines namely various computers installed at the premises of the subscribers. In some cases, the assessee itself had placed those computers and in all the cases the connectivity in the form of nodes leased from SITA were installed by the assessee through its agent. The computers so connected and configured which could perform the function of reservation and ticketing was a part and parcel of the entire CRS. The computers so installed required further approval from ‘A’ who allowed the use of such computers for reservation and ticketing. Without the authority of ‘A’ such computers were not capable of performing the reservation and ticketing part of the CRS system. The computer so installed could not be shifted from one place to another even within the premises of the subscriber, leave apart the shifting of such computer from one person to another. Thus the assessee exercised complete control over those computers installed at the premises of the subscribers, and the same would amount to a fixed place of business for carrying on the business of the enterprise in India. But for the supply of computers, the configuration of computers and connectivity which were provided by the assessee either directly or through its agent ‘A’ would amount to operating part of its CRS system through such subscribers in India and accordingly PE in the nature of a fixed place of business in India. Thus the assessee could be said to have established a PE in India within the meaning of article 5(1) of Treaty. [Para 23.1]
Issue of Exception provided in Article 5(3) of DTAA
The case of the assessee was that the existence of such computers were merely for the purpose of advertising and the activities were preparatory or auxiliary in character and hence there was no fixed place PE in India in view of the Explanation provided in Article 5(3) could not be accepted. The function of the PE in India was not only to advertise its products. The activity of the assessee was developing and maintaining a fully automatic reservation and distribution system with the ability to perform comprehensive information, communication, reservation, ticketing, distribution and related function on a worldwide basis. The computers installed at the premises of the subscribers were connected to the global CRS owned and operated by the assessee. Using part of the CRS System, the subscribers were capable of reserving and booking a ticket Thus it could not be considered as “solely for the purpose of advertising” of such CRS system. Similarly it was not in the nature of ‘preparatory or auxiliary’ character. It is difficult to distinguish between the activities which were ‘preparatory or auxiliary’ character and those which were not. The decisive criteria is whether or not the activity of the fixed place of business in itself forms an essential and significant part of the activity of the enterprise as a whole. Since part of the booking function was operated in India which directly contributed to the earning of revenue, the activities as carried out in India by the assessee was in no way of ‘preparatory or auxiliary’ character. Thus the exception provided in article 5(3) would not apply and hence, the assessee would be deemed to have a permanent establishment in India. [Para 23.2]
Issue of permanent establishment in form of dependent agent
It is commonly accepted principle that an enterprise should be treated as having a PE in a state if there is under it a person acting for it, even though the enterprise may not have a fixed place of business. Thus there can be two forms of permanent establishment, (i) fixed place or (ii) through the dependent agent. What an enterprise can do directly but if not so done directly but done through an agent appointed for the purpose, it will be deemed to have been done indirectly. Even in such a situation it can be said that the enterprise carrying on the business through the efforts of such agent and hence can be said to have established a PE. However, all the persons other than agent of an independent status could not be deemed to be a PE of the enterprise. The agents could be considered as PE only and only if when a person other than agent of an independent status, (i) has and habitually exercise in that state an authority to conclude contract or (ii) though he has no such authority but habitually maintains stock of goods from which he regularly delivers goods on behalf of the enterprise. Thus the first question to be decided was whether the agent was of a dependent status or of an independent status. In the instant case it was found that ‘A’ was totally dependent on the assessee. The entire business of ‘A’ was to provide data processing and software development services together with relative distribution of assessee products’ to the subscribers in India. ‘A’ had also an authority to enter into agreements with the subscribers. ‘A’ installed the computers, configured the computers for accessing the CRS and also provided connectivity through SITA nodes. Thus, functionally as well as financially it was dependent entirely on the assessee. It could therefore, be said that ‘A’ was a dependent agent of the assessee. [Para 23.3]
Issue of Exercising Authority Habitually by Indian Agent to conclude contract
Under the distribution agreement entered into by the assessee with ‘A’, ‘A’ was responsible for effecting and contracting with subscribers in the Indian territory and was to use reasonable efforts to provide access to all the assessee’s products’ out of Indian territory. Though the assessee and even the participating airlines were not party to the agreement entered into by ‘A’ with the subscribers, yet the assessee through the PCA had ensured that the subscribers were authorized to use its products’. Under an authority granted to them, subscribers used such products. The reservations and ticketing done using the CRS product were being honoured by the participants and for which the remuneration was payable by the participants to the assessee. Thus ‘A’ could be said to have and having exercised an authority to conclude contracts on behalf of the assessee. What the assessee could have done directly by entering into an agreement with the subscribers, was done through ‘A’. The subscribers agreement were entered into by ‘A’ under an authority available to it in view of the distribution agreement. What could have been done directly was done indirectly through the offices of ‘A’ under an authority granted to it. The phrase “authority to conclude contracts on behalf of the enterprise” did not confine to application of paragraph 4 to an agent who enters into contract literally in the name of enterprise. The paragraph applies equally to an agent who concluded contracts which were binding on the enterprise even if those contracts were not actually in the name of enterprise. Lack of activity involved by enterprise in the transactions may suggest of an authority being granted to the agent. What is relevant is that such contract shall have a nexus with the business operations as such and not merely contracts for hiring employees, premises etc. What is taxable in the contracting state is the income accruing to such enterprise and the activities are carried on either through the PE namely fixed place or through a dependent agent. The dependent agent is not to be considered as PE unless he has authority to conclude contract on behalf of such enterprise. The authority to conclude contracts must be in respect of contracts relating to operations, which constitute the business proper of the enterprise. The assessee’s in the instant case in order to enhance its business operations had appointed ‘A’ as its agent who promoted the assessee’s products’ in India. ‘A’ in its turn had appointed various subscribers for use of assessee’s products’. Though the revenue flowed only from participants who had entered into PCA with the assessee, yet the revenue could not have been generated but for the subscribers using the assessee products’. In a way the revenue was generated from the participants but only on the basis of use of CRS by the subscribers. But for such use no revenue would accrue to the assessee. Thus, the agreements entered into by the ‘A’ with the subscribers under an authority granted to it, were contracts relating to operations which constituted business proper and not merely in the nature of internal operations. Such contracts were habitually exercised and there was nothing on record to suggest that such authority was cancelled at any point of time. Therefore, ‘A’ was dependent agent of the assessee who had habitually exercised the authority to conclude contracts on behalf of the assessee to that extent the assessee had a PE in India. [Para 23.4]
Issue of permanent Establishment within meaning of Article 5(4)(6) of DTAA
Clause (b) article 5(4) would apply only where the dependent agent habitually maintains stock of goods from which he regularly delivers goods on behalf of the enterprise. In the instant case, it was seen that the assessee was not dealing in any stock of goods. Since the assessee was not dealing in any goods, the question of delivery of such goods did not arise. The contention of revenue that ‘A’ maintained stock of computers which were delivered to the subscribers should be treated as delivery of goods, could not be accepted. The reference to “stock of goods” in clause (b) of article 5(4) had to be understood in the sense the business proper carried on by the enterprise. The delivery should be from the stock of goods which if considered in proper prospective will only be of the stock of goods dealt with by the assessee in regular course of its business. If the agent is to deliver the goods either the goods should be such in which the enterprise deals in or which were regularly hired out which may be considered as given on bailment from which the revenue is to be generated. But in the instant case the computers supplied by ‘A’ to the subscribers were not dealt with by the assessee or which was by itself was the source of revenue. Thus, clause (b) of article 5(4) would not apply to consider the dependent agent as PE of the assessee in India. [Para 23.5]
Attribution of profits:
Reading the article 7 makes clear that the profit of an enterprise will be taxable only to the extent as is attributable to that permanent establishment. This is in pari materia with clause (a) of Explanation 1 to section 9(1)(i) of the Income-tax Act. Thus, where the entire activity of an enterprise are not carried out in a contracting state where the PE is situated, then only so much of the profit as is attributable to the functions carried through the PE can be taxable in such source state. While dealing with the question as to what was such part of income as was reasonably attributable to the operations carried out in India, it was held that only 15 per cent of the revenue generated from the bookings made within India was taxable in India. The same proportion had to be adopted while computing profit attributable to the PE. It was also held that since the payment to the agent in India was more than what was the income attributable to the PE in India, it extinguished the assessment as no further income was taxable in India. It was to be noted that even in the first assessment framed by the Assessing Officer, the entire expenses in the form of remuneration paid to ‘A’ was held as allowable deduction and was reduced while computing the income of assessee. If that be the case, the income attributable to PE in India being less than the remuneration paid to the dependent agent, it extinguished the assessment and required no further exercise for computation of income. Accordingly, the income of the assessee would be ‘Nil’. [Para 24]
Since it was held that the remuneration paid to the dependent agent was exceeding the income attributable to the PE in India, the question of allowability of various expenses did not survive. The question of charging interest under sections 234A & 234B would also not survive. [Para 24.1]
In the result, the appeals were to be partly allowed.