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We are of the view that the case of the applicant neatly fits into Section 44BB and all the ingredients of that section are satisfied. To attract the first part of section 44BB, the non-resident must be (a) engaged in the business of providing services or facilities; (b) such provision of services/facilities must be ‘in connection with’ the prospecting for or extraction or production of mineral oils.
The income by way of royalty accruing to the Japanese company is liable to be taxed in terms of Article 12 of the DTAA between India and Japan at a rate not exceeding 10 per cent from the assessment year 2008-09 onwards.
Cable & Wireless Networks India Private Limited („the applicant?) is engaged in the business of providing international and domestic long distance telecommunication services in India. It proposes to enter into an agreement with its group company, Cable and Wireless UK („C&W UK?) to provide end to end international long distance telecommunication services to its Indian customers.
S. 44BB applies to an assessee engaged in the business of providing services or facilities in connection with ….. the prospecting … of mineral oils. On the other hand, Explanation 2 to s. 9 (1) (vii) defines “fees for technical services” to mean consideration for the rendering of technical services but not including consideration for mining or like project undertaken by the recipient.
The applicant is a non-resident shipping Company incorporated under the laws of Switzerland and is in the business of shipping contracts for the transportation of cargo worldwide. During the financial years 2007-08 and 2008-09, the applicant entered into a shipping contract for transportation of cargo from Indian ports to China. The amount of freight for transportation of cargo from the Indian port to a port outside India was invoiced and received by the applicant.
S. 9, Treaty with South Africa; in favor of taxpayer: – Z, a South African company, offered to promote and market the products of the taxpayer, an Indian company, on commission basis. Z will procure and negotiate orders and forward these to the taxpayer. The taxpayer will execute the orders directly and will receive the consideration in India. Z will render all services outside India and will not maintain any PE in India.
The applicant is a US-based manufacturer engaged in manufacturing of engineering goods and is also an R&D-based service provider. It entered a cost al ocation agreement with its India-based group company. The applicant raises invoices on the Indian group company for services rendered based on the formula given in the agreement. The question before the Authority for Advance Ruling was: “Whether payments made for availing services listed out in the agreement are taxable in India and if taxable whether it is liable to TDS under Section 195 of the Act?”
The applicant, a USA company, held shares in an Indian company. As part of a bankruptcy reorganization process, the shares in the Indian company together with other non-Indian assets & liabilities were transferred to other USA companies. The liabilities taken over were more than the assets. The agreement provided that the transfer of the shares was without consideration. The AAR had to consider (i) whether the liabilities of the transferor taken over by the transferee could be said to be “consideration” for transfer of the Indian shares so as to make it chargeable to capital gains and (ii) whether even if there was no chargeable ‘capital gains’, the applicant could be assessed on an ‘arms length” basis under the transfer pricing provisions.
It cannot be doubted that the technology/know- how transfer that is contemplated by clause 2 of the `Technology Transfer Agreement’ between the parties gets covered by more than one sub-clause of Explanation 2 to section 9(1)(vi) of the Income-tax Act, 1961 i.e., sub-clauses (i),(ii) and (iv); the services in the form of technical assistance and consultancy connected with those items fall under sub-clause (vi); therefore, the consideration received by the American Company towards technology transfer/technical know-how and the services connected therewith is clearly liable to be taxed as royalty under section 9(1)(vi).
Whether during the previous years relevant to assessment years 2008-09 and 2009-10, the applicant, in the stated facts and circumstances, had a Permanent Establishment in India under Article 5 of India-Switzerland Double Taxation Avoidance Agreement in relation to activity of charter of vessels for transporting cargoes from Indian ports to outside India ?
