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On 22 February 2023 , ITAT Delhi pronounced a judgement in the case titled Smiths Detection Asia Pacific Pte Ltd Vs. The Dy. C.I.T wherein the assessee filed the present appeal against the order dated 18 July 2022 framed u/s 143(3) r.w.s 144C(13) of IT Act, 1961 pertaining to AY 2019-20. The assessee had raised as many as 7 grounds of appeal, but the sole substance of the assessee’s grievance was regarding the taxability of offshore supply of equipment under the IT Act and the taxability of the same under the India-Singapore Double Taxation Avoidance Agreement [DTAA]. The present article shall discuss the aspects covered in the judgment to provide a better understanding of the same.
The assessee’s counsel vehemently submitted that the assessee’s branch office doesn’t have any role to play in the execution of contracts regarding AAI and CIAL. As the role of the branch office was limited to the maintaining CIAL
The assessee’s further stated that the assessee doesn’t have a PE in India for offshore supply of equipment. The assessee’s counsel brought to the notice that the transaction in the present case is one akin to the export of goods from outside of India pursuant to the contract for the supply of goods as entered outside of India, along with the sale being affected outside the country and the equipment’s title in the property is passed outside the country.
He strongly relied on the Hon’ble Apex Court in the case titled Ishikawajima Harima Heavy Industries Ltd and Hyundai Heavy Industries Co. Ltd.
Ld DR was in support of the Assessing Officer/DRP findings. Referring to the remand report that the AO had submitted, the ld. DR pointed out that through the communication letter written by the applicant company to the CIAL dated 22 August 2018 and communication addressed to the AAI, the scope of work awarded was divided into 2 components by the assessee on its own accord, comprising of supply of equipment and the other being commissioning, installation, testing, and comprehensive annual maintenance.
The ld. DR vehemently stated that the aspect related to the supply of equipment was assigned by the assessee to itself, and the other component of work, i.e., testing, installation commissioning, AMC has been assigned to the subsidiary of the applicant in India, i.e. Smith Detection Systems Pvt Ltd.
The ld. DR further submitted that suo moto bifurcation by the assessee wouldn’t be changing the colour of the transaction, and the attribution of profit by the AO /DRP can’t be faulted with.
The tribunal observed that the core issue that must be dealt with in the present case was regarding the application and extent of the Force of Attraction Rule in case of offshore supply sales of goods/merchandise. The tribunal referred to the judgement of the Apex court that had been cited by the assessee wherein the apex court discussed the implication of such a rule, observing that.
“The attraction rule refers to a situation when an enterprise (GE) establishes a PE in another country, it becomes a part of the fiscal jurisdiction of that other country to such a degree that such another country has the authority to tax all profits that the GE derives from the sources country-whether through PE or otherwise It is setting out a PE which is triggering the taxation of transactions in the source State. Therefore, until and unless the PE is set up, the question of taxability doesn’t arise.”
The judgement also discussed the aspects of a Turnkey Project, whose facts were identical to the facts of the present case; therefore, the tribunal supported the observation of the apex court regarding the turnkey project as decided in the Harima Heavy Industries case.
“In cases such as this, wherein different severable parts of the composite contract are performed in different places, the principle of apportionment must be applied for determining which fiscal jurisdiction can tax that particular part of the transaction. This principle helps ascertain the territorial jurisdiction of a particular state lies to ascertain its capacity to tax a transaction. Applying it to composite transactions having some operations in one territory and some in others is important to ascertain the taxability of various operations.”
The tribunal opined that the facts of the above decisions of the Apex Court were squarely applicable to the facts of the case in hand as well. The turnkey project was split into two parts, and payments have also been made by 11 AAI and CIAL separately for offshore supply and installation and commissioning.
Therefore, the allegation of the ld. DR regarding the suo moto bifurcation of the contract doesn’t hold any substance due to the other parties concurring to the same at the beginning itself and, therefore, making separate payments.
Thus the tribunal didn’t find any justification in the attribution of profit on the offshore sale of equipment and directed the AO for the deletion of the impugned addition, thereby allowing the grievance along with all its sub-grounds and clarifying the taxability of offshore supply of equipment under the IT Act and the taxability of the same under the India-Singapore Double Taxation Avoidance Agreement.
With regard to the addition of interest on fixed deposits amounting to Rs. 8,57,074/-The ld. Counsel for the assessee vehemently submitted that there had been a misplacement of FD by the assessee, and, as it is a capital asset, it has been written off by the assessee. Therefore there isn’t any question of earning any interest income.
This contention of the assessee was considered illogical and unacceptable as The Canara Bank, in Form No. 26AS, has acknowledged the FDs with it and has credited interest by deducting TDS. Even in case of misplacement of FDs, the assessee could have approached the Canara Bank, requesting for duplicate FD. The tribunal didn’t find any error or infirmity in addition made by the Assessing Officer, and the same was upheld.
The judgement pronounced in the present case provides the much needed clarity on the concept of taxability of offshore supply of equipment under the IT Act and the taxability of the same under the India-Singapore Double Taxation Avoidance Agreement and the addition of interest on fixed deposits which can be beneficial for all the further matters involving similar issues.
Also Read:Why start an offshore company in Canada?Offshore Company Incorporation in Malaysia: A complete Procedure
Shubhangi has completed her B. A.LLB (H) with specialization in Business Laws from Amity University. She is particularly interested in legal research and writing and wishes to utilize her knowledge to create informative legal content. She has prior experience in corporate and criminal litigation and has great drafting skills. She has also published various research papers in reputed journals.
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