Further, the Hon’ble High Court distinguished the judgments of the Supreme Court in the case of A & G Projects and Technologies Limited Vs. State of Karnataka (2009 (2) SCC 326] and the High Court of Andhra Pradesh in the case of Jadhavjee Laljee Vs. State of Andhra Pradesh (1989 (74) STC 201 (DB)].
There was no transfer of copyright or the right to use the copyright by the foreign company to the tax payer and therefore the payment would not fall within article 13(3)(c) of the Tax Treaty. The reference in Article 13(3)(c) is to “any copyright” and it is not a reference to “any right”. Hence, the payment cannot be said to be in the nature of royalty payment.
The assessee manufactured cars using the brand name Maruti. It entered into an agreement with Suzuki, Japan, pursuant to which it began manufacturing cars using the brand name Suzuki. The TPO issued a show-cause notice in which he alleged that the substitution of the brand name Maruti for the name Suzuki meant that the assessee had soldthe Maruti brand to Suzuki. On that basis, he determined the arms length sale proceeds at Rs. 4,420 crores.
Delhi High Court Ruling: If the assessee makes a claim which is not only incorrect in law but is also wholly without any basis and the explanation furnished by him for making such a claim is not found to be bonafide, it would be difficult to say that he would still not be liable to penalty under section 271(1)(c) of the Act [CIT vs. Zoom Communications Private Limited (2010-TIOL-361-HC-DEL-IT)]
In fact, the Bombay High Court in Indian National Shipowners Association v. Union of India [2009] 19 STT 408 (Bom.) has more than adequately dealt with the entire issue and inter alia concluded that it is only after enactment of section 66A that taxable services received from abroad by a person belonging to India are taxed in the hands of the Indian residents; before enactment of section 66A, there was no such provision in the Act and therefore, the respondents had no authority to levy service tax on the members of the petitioners-association.
Recently, the Delhi High Court in the case of Maharishi Housing Development Finance Corporation Ltd. v. ACIT (ITA no. 222 of 2009) (Delhi) after following its own decision in the case of Van Oord ACZ India (P) Ltd v. CIT [2010-TIOL-1 87-HC-DEL-IT] held that the question of tax withholding in case of payment made to non-resident would arise only if the said payment is chargeable to tax in India.
Delhi High Court has again granted stay to Home Solution Retail (I) Ltd. in W.P. (C) No. 3398 of 2010 on 18.05.2010 from payment of service tax on renting of immovable property. The stay is not on services in relation to renting but on renting per se.
This Tax Alert summarizes a recent ruling of the High Court (HC) of Delhi in the case of Van Oord ACZ India (P) Ltd. (Taxpayer) [2010-TIOL-187-HC-DEL-IT] on withholding tax obligation arising under the provisions of the Indian Tax Law (ITL) in respect of reimbursement of expenses to non-resident companies. The Delhi HC held that a payer is obligated to withhold tax only if the payment is chargeable to tax under the provisions of the ITL.
Recently, the Income Tax Appellate Tribunal, New Delhi (ACIT vs Harashima Naoki Tashio, ITA No. 4634/Del/) has held that the employer’s contribution towards the social security in the home country of the employee is not taxable in the hands of the employee as a perquisite.
The Delhi High Court (CIT Vs. Dr. Percy Batlivala [ ITA No. 13 08/2008]) has held that in respect of the expatriate employee sent on deputation to India, the amount of hypothetical tax representing the difference between the tax liability in the home country of the expatriate and in India should not be added to the salary income of such expatriate taxable in India.
