Income Tax Appellate Tribunal - Mumbai
Varian Medical Systems India P. Ltd, ... vs Assessee
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI ' L ' BENCH
MUMBAI BENCHES, MUMBAI
BEFORE SHRI P M JAGTAP , AM & SHRI VIJAY PAL RAO, JM
ITA No. 5823/Mum/2011
(Asst Year 2008-09)
Varian Medical Systems India P Ltd Vs The Asst Director of Income Tax
India Branch Officer Range 1(2), Mumbai
India Branch Office, Unit no.33 3rd Road
Level, Kalpataru Square
Off Sir M V Road, Andheri (E)\
Mumbai 59
(Appellant) (Respondent)
PAN No. AAACV9418J
Assessee by Sh P R V Raghavan
Revenue by Sh Narendra Kumar
Dt.of hearing 15th Oct 2012
Dt of pronouncement 19th, Oct 2012
PER VIJAY PAL RAO, JM
This appeal by the assessee is directed against the assessment order dated 11.5.2011 passed u/s 143(3) r.w s 144C(13) of the I T Act in pursuance to the directions of DRP dated 29th May 2011 u/s 144C(5) of I T Act for the Assessment Year 2008-09.
2 There is a delay of 31 days in filing the present appeal. The assessee has filed an application for condonation of delay along with an affidavit for explaining the reasons for delay in filing the appeal.
3 We have heard the ld AR of the assessee as well as the ld DR and considered the relevant material on record for condonation of delay in filing the appeal. The ld 2 ITA No5823/M/2011 Varian Medical Systems India P Ltd .
AR has submitted that the concerned officer Mr Deepak Lalchandani of the assessee company was away from Mumbai during the period from 3.6.2011 to 19.6.2011 and again from 17.7.2011 to 25.7.2011. The concerned officer Mr Deepak Lalchandani has finally assumed his duties at Mumbai on 26th July 2011. The ld AR has contended that only after 26th July 2011, the concerned senior officer of the assessee, who is holding a valid Power of Attorney, situated at Chennai office, took the steps for filing of the appeal and signing of the relevant documents. Thus, the ld AR has submitted that the delay of 31 days in filing the present appeal is due to circumstnaces cause which were beyond the control of the assessee. The delay is neither wilful nor deliberate; but there was a genuine difficulty of non-availability of the person concerned, who is looking after the tax matters of the assessee company. Therefore, the ld AR has pleaded that the delay may be condoned and the appeal of the assessee may be decided on merit.
3.1 On the other hand, the ld DR has vehemently opposed the application for condonation of delay.
4 After considering the rival submissions and carefully perused the averments made by the assessee in the application for condonation of delay as well as the affidavit filed in support of the application, we note that the facts of the case do not suggest that the assessee has acted in a malafide manner or the reasons explained is only a device to cover an ulterior purpose. It is settled proposition of law that the Court should take a lenient view on the matter of condonation of delay. However, the explanation and the reason for delay must be bonafide and not merely a device to cover an ulterior purpose or an attempt to save limitation in an underhand 3 ITA No5823/M/2011 Varian Medical Systems India P Ltd .
way. The Court should be liberal in construing the sufficient cause and should lean in favour of such party. Whenever substantial Justice and technical considerations are opposed to each other, cause of substantial Justice has to be preferred. 4.1 In the case in hand, when the reasons explained by the assessee are not found as malafide or a device to cover up ulterior purpose, then a liberal approach has to be taken for considering the sufficiency of course. We are satisfied with the reasons explained by the assessee that due to non availability of the concerned officer of the assessee; the appeal could not be filed within the period of limitation. Accordingly, in the interest of Justice we condone the delay of 31 days in filing the present appeal.
5 The assessee has raised the following effective grounds in this appeal:
I - Lack of Application of mind:
The entire assessment order u/s 143(3) r.w.s. 144C of the ITA (hereinafter referred to as "Assessment Order" or "Order").served on Varian Medical Systems (India) Private Limited - India Branch Office (hereinafter referred to as "your appellants") is similar to the Order for the asst. year 2007-2008 as admitted by the learned Asst. Director of Income-tax (International Taxation), 1(2), Mumbai (hereinafter referred to as "ADIT") in para 4 & 5 at page 3 of the Order.
2 - Can VMSIPL be treated as Permanent Establishment (PE) in India for the sale of equipments by the parent / group companies and bring to tax in India purportedly proportionate amount of income attributable to so-called PE in India?
3. Calculation of income attributable to the PE in India;
The ld ADIT has erred in law and on facts in not giving the deduction available in respect of HO expenses u/s 44rC of the I T Act r.w. Art 7(3) of the India-USA Tax Treaty @ 5% on ` 82,631,641/-
4. Denial of principles of natural justice The ld ADIT has concluded the proceedings, and passed the assessment order u/s 143(3) of the TA Act without giving notice/indication about his closing of the proceedings."
4
ITA No5823/M/2011 Varian Medical Systems India P Ltd .
6 At the time of hearing, the ld AR of the assessee has pointed out that the main issue in the appeal of the assessee is ground no.2, which is regarding whether the assessee is having a PE in India or not and the other issues are consequential and dependent of the outcome of ground no.2 The ld AR has further pointed out that the issue raised in ground no. 2 has been considered and decided by the Tribunal in assessee's own case for the Assessment Year 2003-04 to 2005-06. The ld AR has further pointed out that for the Assessment Year 2003-04, the appeal filed by the revenue against the order of the Tribunal has dismissed by the Hon'ble High Court vide decision dated 30.6.2011.
7 We have considered the rival submissions as well as the relevant material on record. At the outset, we note that for the Assessment Year 2003-04 an identical issue as raised in ground no.2 has been considered and decided by the Tribunal in assesse's own case vide order dated 13.8.2009 in ITA No.4960/Mum/2007 in para 4 & 5 as under:
"4. We have heard the rival submissions and perused the relevant material on record. From the facts it is clear that the assessee earned commission income from sales effected through it and the said amount was offered for taxation. The case of the Revenue is that apart from the said commission the assessee be also subjected to tax on the sales made by the principal. We are riot agreeable with the contention raised on behalf of the Revenue for the reason that almost similar issue has been considered and decided by the Hon'ble jurisdictional High Court in SET Satellite (Singapore) Pte. Ltd. Vs. Dy.Director of Income-tax (IT) & Anr. [(2008) 307 1TR 205 (Born.)] in which it has been held as under:"
"From a reading of art. 7(1) of the DTAA it is clear that the profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a PE situated therein. The profits of the enterprise may be taxed in the other State but only so much of them as are directly or indirectly attributable to that PE. In para 2 of art. 7 while determining the profits attributable to the PE the expression used is "estimated on a reasonable basis". The DTAA does not refer to arm 's length payment.5
ITA No5823/M/2011 Varian Medical Systems India P Ltd .
The principles contained in the matter of income from international transaction on an arm 's length price are contained in s. 92 of the IT Act. The principles have been clarified by the Finance Act, 2001 as also Finance Act, 2002. From the order of the Commissioner of Income Tax(Appeals), which has been accepted it is clear that the appellant herein has paid to its PE on arm 's length principle. It recorded a finding of fact that the appellant had paid service fees at the rate of 15 per cent of gross ad revenue to its agent, SET for procuring advertisements during the period April, 1998 to October, 1998. The fact that 15 per cent service fee is an arm 's length remuneration is supported by Circular No. 742 which recognizes that the Indian agents of foreign telecasting companies generally retain 15 per cent of the ad revenues as service Effective November, 1998, a revised arrangement was entered into between the parties whereby the aforesaid amount was reduced to 12.5 per cent of net ad revenue (i.e. gross ad revenues less agency commission,). Simultaneously, the appellant also entered into agreement entitling SET to enter into an agreements, collect and retain all subscription revenues. Considering all these aspects and the fact that the agent has a good profitability record, it held that the appellant has remunerated the agent on an arm 's length basis. . This finding of the Tribunal has not been disputed by the Revenue. The entire contention of the Revenue is that the advertisement revenue pertaining to its own channel and AXN channel are also taxable in India. It may firstly be pointed out that Commissioner of Income Tax(Appeals) has dealt with the issue as to why the advertisements received by the appellant were not liable for being taxed in India based on the CBDT Circular No. 2.,, cit. 23 July, 1969 which clearly sets out that where a non-resident 's sales to Indian customers are secured through the services of an agent in India, the assessment in India of the income arising out of the transaction will be limited to the amount of profit which is attributable to the agent's services, provided that (I) the non-resident principal's business activities in India are wholly channelled through his agent; (ii) the contracts to sell are made outside India and (iii) the sales are made on a principal-to-principal basis. The CIT(A) had recorded a specific finding in favour of the appellant in the affirmative on all three counts. It is in these circumstances that it was held that the advertisement revenue received by the assessee may be from the customers in India is not liable for tax in India. That CBDT circulars are binding needs no repetition. The Tribunal in its order has not considered the effect of the finding recorded by the CIT(A) based on the circular and which circular was relevant for the purpose of deciding the controversy in issue. This circular read with art. 7(1) of the DTAA would result in holding that the income from advertisement if neither directly nor indirectly attributable to that of the PE, would not be taxable in India. The Tribunal in fact has recorded a finding that art. 7(2) provides that the arm 's length price is the criterion for computation of these hypothetical profits. The entire rational or reasoning given by the Tribunal has to be set aside. In matters of tax what has to be considered and more so in international transactions if there be a 6 ITA No5823/M/2011 Varian Medical Systems India P Ltd .
treaty, the provisions of the treaty and if the provisions of the treaty are more advantageous to an assessee, then the construction will have to be given which is advantageous to the assessee. If the correct arm's length price is applied and paid then nothing further would be left to be taxed in the hands of the foreign enterprise. Considering the CBDT Circular No. 742 it would be fair and reasonable that the taxable income is computed at 10 per cent of the GP. In the instant case insofar marketing services are concerned by the arm's length principle what has been paid is more than 10 percent as can be seen from the order of CIT(A). This was not disputed by the Revenue in its appeal before the Tribunal. Circular No. 23 of 1969 r/w art. 7(1) of the DTAA would result in holding that advertisement revenue received by the assessee are not taxable in India as long as the treaty and the circular stand. Merely because tax on income was paid for some assessment years would not estop the assessee from contending that its income is not liable to tax. The order of CIT(A,) is restored except to the extent that it has said that it cannot interfere because the assessee had paid the tax."
5. The learned Departmental Representative fairly conceded that the facts and circumstances of the instant case match with those of SET Satellite ('Singapore,) Pte. Ltd. (supra) decided by the Hon'ble jurisdictional High court. Respectfully following the precedent we uphold the impugned order. 7.1 We further note that the appeal filed by the revenue against the order of the Tribunal has been dismissed by the Hon'ble High Court vide decision dated 30.6.2011 in ITA NO.317 of 2010 as under:
"1. The question of law raised by the revenue in this appeal reads thus;
"Whether on the facts and circumstances of the case and in law, the Hon'ble Income Tax Appellate Tribunal was right in holding that the assessee is not a PE of Varian Group, USA and accordingly, the business profit attributable to the PE is not taxable in India.
2. Perusal of the order of the ITAT shows that the auction raised in this appeal has been answered in favour of the assessee by following the judgment of this court in the case of SET Satellite (Singapore) Pte Ltd vs Deputy Director of Income Tax & Anr, reported din (2008) 307 ITYR 205 (Bombay) The counsel for the revenue brought to our notice that the SLOP file by the revenue against the order of this court in the case of SET Satellite Pte Ltd (supra) had been admitted by the Apex Court. Pendency of the SLP before the Apex Court cannot be a ground to entertain this appeal. Hence, the appeal is dismissed."7
ITA No5823/M/2011 Varian Medical Systems India P Ltd .
7.2 There is no dispute that the facts with respect to this issue are identical for the Assessment Year under consideration to those of Assessment Year 2003-04. Accordingly, respectfully following the earlier order of the Tribunal which has been confirmed by the Hon'ble High Court, we decide this issue in favour of the assessee and against the revenue.
8 Since the issue of PE is decided in favour of the assessee; therefore, the issues raised in the other grounds have become infructuous . 9 In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on the 19th day of Oct 2012.
Sd/ Sd/-
( P M JAGTAP ) ( VIJAY PAL RAO )
Accountant Member Judicial Member
Place: Mumbai : Dated: 19th, Oct 2012
Raj*
Copy forwarded to:
1 Appellant
2 Respondent
3 CIT
4 CIT(A)
5 DR
/TRUE COPY/
BY ORDER
Dy /AR, ITAT, Mumbai