9. (1) The following incomes shall be deemed to accrue or arise in India :— (i) to (v) xx xx xx xx xx xx xx xx xx (vi) income by way of royalty payable by—
The applicant is a company incorporated in the United States and is a leading manufacturer of engineered bearings, alloys etc. The applicant has a significant shareholding in an Indian listed company, which was initially set up as joint venture with Tata Iron and Steel Company.
3. The applicant contends that the services under various contracts except contract no. 5 cannot be brought within the sweep of `royalties’ as defined in Art. XII.3 of the Double Taxation Avoidance Agreement (hereinafter referred to as `DTAA’ or `Treaty’), that there was no permanent establishment in India except in relation to Contract no.6 and that royalty income in respect of the contract no. 5
10.1 It is the common stand of both – the applicant and the Revenue, that the nature of income arising from the transfer of the applicant’s participating interest in Amguri block to the proposed partnership firm, shall be capital gains. Where they differ is regarding the mode of computation of that income. Whereas the applicant submits that sub-section( 3) of section 45 of the Act provides a particular mode
5. It would be appropriate to reproduce section 36(1)(viii) of the Act as it stood in the relevant assessment years i.e. A.Y.1997-98 in the following terms: – Section 36(1)(viii) : as it stood in the statute during the A.Y.(1997-98) 36(1) – The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28
Service Tax – re-rubberizing charges collected for reconditioning of used old rollers – liable to pay service tax: service tax is payable on the re-rubberising charges collected. However, it is made clear that we are not dealing with a situation where the reconditioned rollers are stocked and sold in the market (as and when the buyers approach) on collecting the price thereof which might include the cost of reconditioning.
13. To appreciate the above rival contentions, it would be worthwhile to refer to relevant provisions of the Act i.e. section 48 and section 55(2) respectively. Section 48 provides for the computation of capital gains. The key factors to be taken into account while computing the capital gains are (1) the full value of consideration for transfer (ii) the cost of acquisition of the capital asset and the cost of improvement
The services rendered and the work undertaken by the applicant-Australia n company in terms of the Agreement for Basic Engineering and Procurement services fall within the scope of `royalties’ as defined in Article XII(3) of the DTAA between India and Australia and the receipts are taxable in India by virtue of Article XII(2); under the Income-tax Act too, they are so taxable
Once the conclusion is reached that the application for advance ruling filed under section 245Q is hit by one or all of the embargoes laid down in the proviso to section 245R(2), the Authority has no option but to reject the application in limine; it is not open to the Authority to ignore the legal bar created by the proviso notwithstanding the discretion conferred on the Authority in apparently wide terms under the main provision i.e., sub-section (2).
8.5 The crucial question to be asked and answered is whether the applicant has paid any fee to HMFICL for the service of deputing its own employee having technical knowledge to work with the applicant for a specified period? Whether the part reimbursement of salary of secondee by the applicant shall be construed as consideration for rendering the service of the kind covered by FTS clause
