Wednesday, September 10, 2008

International Taxation: Analysis of a Recent Bombay High Court Ruling

(The following post has been contributed by Mihir Naniwadekar. We would like to thank Bhushan Shah for bringing this judgment to our attention)

The Bombay High Court recently answered important questions pertaining to international taxation in SET Satellite Singapore v. Deputy Director, Income Tax (International Taxation) [ITA no. 944/2007; reported in MANU/MH/0739/2008. The Court followed the Supreme Court’s decision in Morgan Stanley, reported in (2007) 292 ITR 416 (SC); and the decision would be a welcome one to foreign enterprises carrying on business activities in India.

The facts:

The Appellant-assessee, SET Satellite (Singapore) Pte Ltd. was a resident of Singapore and carried on certain activities in India through its dependent agent SET India (P) Ltd. It submitted before the Indian tax authorities (at the time of filing its tax return disclosing ‘nil’ income) that it did not have any tax liability in India because it did not have any Permanent Establishment in India and that its dependent agent was remunerated on an arm’s-length basis. A revised return was filed later disclosing a certain sum as income, but without prejudice to the contention that there arose no tax liability in India. However, the Assessing Officer (AO) determined that the assessee was liable to tax in India; and assessed the assessee’s income including income from marketing fees as well as advertisements collected in India. Further, the assessee’s income was held to have included the subscription fees received from cable operators by its Indian dependent agent. In an appeal preferred by the assessee against the AO’s order before the CIT (Appeals), it was held that in view of Article 7(2) of the India-Singapore DTAA and considering that the dependent agent was remunerated at an arm’s-length basis, no profits would be taxable in the hands of the assessee. Nonetheless, the CIT (Appeals) held that there was no reason to interfere with the AO’s order in view of the revised return filed by the assessee. Appeals were filed by the Revenue as well as the assessee before the ITAT (Mumbai) against the order of the CIT (Appeals).

The case before the Tribunal:

The Tribunal proceeded to consider the question, “Whether… the learned CIT (Appeals) erred in holding that since the assessee has remunerated the agent on the arm’s-length principle, no further profits of the assessee could be taxed in India other than the profits earned by the dependent agent?” The Tribunal proceeded to record that since SET (India) was a dependent agent of the assessee in India, the assessee was deemed to have a PE in India. The Tribunal then held, “in addition to the taxability of the Dependent Agent in respect of the remuneration earned by them, which is in accordance with the domestic law and which has nothing to do with the taxability of the foreign enterprise… the foreign enterprise is also taxable in India in terms of the provisions of Article 7 of the (India-Singapore) Tax Treaty, in respect of the profits attributable to the dependent agent permanent establishment.” (Emphasis supplied). The Tribunal came to the conclusion that “the tax liability of a foreign enterprise, in respect of its dependent agency permanent establishment, is not extinguished by making an arms length payment to the dependent agent.” Consequently, the appeal filed by the Revenue was allowed. The assessee filed an appeal before the Bombay High Court against this order.

The High Court decision:

The major issues before the High Court were in relation to the tax liability in India of a non-resident, when the non-resident has a dependent agent in India. The High Court framed three questions of law – the main one being, “Whether having taxed the dependent agent on the fair value of the activities in India, the same could be taxed again in the hands of the non-resident as being income attributable to the deemed permanent establishment?” The relevant provision of the India-Singapore DTAA which had a bearing on the issues was Article 7. According to Article 7(1), if a foreign resident carries on business in India through a PE, then only so much of its profits as are attributable directly or indirectly to the PE may be taxed in India. Article 7(2) provides for a formula to determine this attribution of income.

On behalf of the assessee, it was contended before the High Court that in view of Articles 7(1) and 7(2), the requirement is to ascertain the arm’s length price. In other words, if the activities in India were carried on not by a PE but by an independent enterprise, what would have been the amount charged for the activities by the enterprise? If this “arm’s length” price is paid by the foreign resident to its dependent agent PE, then no further part of its profits can be attributed to the PE, and nothing further would be liable to tax in India. Additionally, the assessee also relied on the Supreme Court’s decision in Morgan Stanley. The Supreme Court had observed there, “… provided that an associated enterprise (that also constitutes a PE) is remunerated on arm's length basis taking into account all the risk-taking functions of the multinational enterprise… nothing further would be left to attribute to the PE.

At first glance, the link between attribution of profits and transfer pricing principles (such as arm’s length price) may not be apparent. Nonetheless, a deeper examination would indicate that the logic behind the argument is convincing. Essentially, if a ‘proper’ amount is paid by the foreign resident to its Indian dependent agent PE, then a ‘proper’ amount is anyway taxable in India in the hands of the PE. No income is escaping the tax net in such cases. In such circumstances, there is no need to further tax the profits of the foreign enterprise; because any further taxation would merely be double taxation. Whether an amount is ‘proper’ or not would depend on whether it has been calculated on an arm’s length basis. In Morgan Stanley, the Supreme Court explained, “(The PE’s) profits are determined on the basis as if it is an independent enterprise. The profits of the PE are determined on the basis of what an independent enterprise under similar circumstances might be expected to derive on its own.” In this context, it is worth noting that transfer pricing provisions are often looked upon as anti-avoidance measures. If a ‘proper’ or arm’s length price is being paid to an Indian PE, it is clear that questions of avoidance would not arise. Thus, it seems logical to conclude that if an arm’s length remuneration is being provided by a foreign enterprise to its dependent agent PE, nothing further ought to be attributed to the PE (particularly because the Revenue in the case was not questioning the fact that an arm’s length price had been paid).

The Bombay High Court agreed with the assessee’s submissions, and reversed the ITAT order. The order of the CIT (Appeals) was restored, except for the portion of the order which went against the assessee. In conclusion, it appears clear that if the transactions between a foreign enterprise and its Indian dependent agent PE are carried on at an arm’s length basis, nothing would be left to be attributed to the PE besides the arm’s length remuneration paid to it by the foreign enterprise. Several recent controversies (including the Hutch-Vodafone issue discussed on this blog earlier) indicate that the Indian tax authorities have been seeking to cast their net as wide as possible. The judicial approach followed by the Bombay High Court in this case signals that all such fishing expeditions cannot be tolerated in view of fundamental principles regarding to international taxation. Only time can tell whether the same approach will be taken by the Court in other situations.

1 comment:

Mihir said...

The Hindu Business Line has an interesting report on the decision of the ITAT in SET Satellite. The report is available at:

The report points out an interesting fact - the ITAT decision in SET Satellite was delivered before the judgment of the Supreme Court in Morgan Stanley. That explains how the Tribunal could have come to its conclusion, which was rightly set aside by the High Court.