Assessee cannot be declared as an assessee in default U/s. 201 of IT Act, 1961 for non-deduction of TDS

Here we summarized the ruling of the Bangalore Income Tax Appellate Tribunal (ITAT) [2009-TIOL-666-ITAT-BANG] in the case of Bovis Lend Lease (India) Pvt. Ltd. (Taxpayer) on the taxability of payments towards reimbursement of cost for services provided by a group entity. The ITAT held that such payments are in the nature of Fees for Technical Services (FTS), under the Indian Tax Law (ITL). In addition, the criteria of ‘make available’, which is stipulated in the India-Singapore Tax Treaty (Tax Treaty) is also satisfied. However, since the services were rendered offshore, from outside India, remuneration for such services was held not taxable in India.

Background and facts of the case

• The Taxpayer is an Indian company, engaged in the business of project and construction management in India. It entered into a Management Service Agreement (MSA) with one of its Group companies, based in Singapore (SingCo), for obtaining management, administrative, legal, financial, marketing, business operational and information technology services.

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