Tuesday, June 11, 2013

Agency PE exist only if agents fit into meaning of ‘dependent agent’ provided in Article 5 of India-USA DTAA

In order to treat any agent as PE within meaning of Article 5 of relevant DTAA it is very vital that such agent should fit into description of 'Dependent Agent' and has to perform either of activities as mentioned in that article.

The facts of the instant case were as under:

1) Assessee was Indian branch (VIB) of an American company VIPL which in turn was a 100 per cent subsidiary of Varian USA. Varian group of companies (VGCs) had five overseas entities in USA, Australia, Italy, Switzerland and Netherlands;

2) VIPL entered into distribution and representation agreement with all five VGCs for supply and sale of analytical lab instruments manufactured by them to Indian customers directly;

3) As per agreements, VGCs sold analytical lab instruments to Indian customers directly and assessee carried out pre-sale activities like liasoning and other incidental post-sale support activities for which it was entitled to commission;

The moot issue that arose for consideration of Tribunal was as under:

Whether the assessee-company, i.e., VIPL through its Indian branch (VIB) constituted a PE for Varian USA, Varian Australia and Varian Italy?

The Tribunal held as under:

1) Under article 5(4) of Indo-US DTAA, an agent is deemed to be PE if conditions mentioned therein are fulfilled;

2) In the instant case, the first condition as to whether the assessee is habitually exercising the authority to conclude contracts on behalf of the VGCs was not fulfilled, as it could be gathered from the facts that the assessee has no authority and also cannot negotiate or conclude contracts on behalf of the VGCs. It only provides marketing support and liaisoning activity for pre-sale and incidental and ancillary post-sale activities;

3) The second condition that the agent has no such authorities but habitually maintains Stock of Goods and merchandise from which he regularly delivers goods on behalf of foreign enterprises which contributes to the sale of the goods and merchandise also does not fulfilled, as the assessee has no authority on behalf of the VGCs and does not maintain any cost of analytical instruments supplied by the VGCs to the customers in India. The assessee mainly facilitates the process of sale;

4) The third condition is whether the person habitually secures orders wholly or almost wholly for the enterprise. In assessee's case, the orders relating to indent sale are only introduced and liaised by the assessee and not secured by it. Thus, none of the three conditions as enumerated in article 5(4) stands fulfilled so as to hold that the assessee is a dependent agent of various VGCs in India;

5) Under Article 5(5) of the Indo-US DTAA, an agent is a PE when the following twin conditions are satisfied simultaneously Firstly, when the activities of such an agent are devoted wholly or almost wholly on behalf of the enterprise; and Secondly, the transactions between the agent and enterprise are not made under the arm's length conditions. Both these conditions were not complied with in the instant case. Thus, under Article 5(5) also, the assessee cannot be held to be agent for constituting a PE in India for the various VGCs;

6) Even under the India-Australia DTAA and India-Italy DTAA, similar provisions are there in Article 5(4) with regard to the dependent agents. Under these DTAAs also, except for clause (d) all other clauses are by and large similar to Article 5(4) of Indo-US DTAA. The additional clause (d) provides that if a dependent agent manufactures or processes enterprise's goods or merchandise belonging to enterprise in that State, then such an agent is deemed as PE. In the instant case, admittedly, the assessee does not manufacture or process any other products developed or manufactured by VGCs. Thus, this clause of Article 5(4) in the above DTAAs is also not applicable

7) In order to treat any agent as PE it is very vital that such agent should fit into the description of 'Dependent Agent' and has to perform either of the activities as mentioned in Articles 5 of relevant treaty, otherwise it couldn’t be held that agent constitutes a PE of the foreign enterprise - Varian India (P.) Ltd v. ADIT (International taxation) [2013] 33 taxmann.com 249 (Mumbai - Trib.)

Vehicle registration services rendered by motor car dealer to its buyers aren’t ‘Business Support Services’

Rendering of assistance by a motor car dealer to its buyers in getting motor vehicle registration done cannot, prima facie, be regarded as 'Business Support Services'

In the instant case, the assessee, a motor car dealer, rendered services relating to registration of car to its buyers on payment of fixed charges. Such charges were used towards registration of car and excess collection, if any, was retained by the assessee. The Department sought to levy service tax on excess amount retained by assessee under 'Business Support Service' regarding it as 'transaction processing'

The Tribunal took, prima facie, the view in favour of assessee with the following observation:-

1) Prima facie the activity undertaken by the assessee does not come within the purview of 'Business Support Service';

2) The assessee was rendering assistance to its clients in getting the motor vehicle registration done. The said activity, by no stretch of imagination, could be considered as supporting the business of its customers. - My Car (Pune) (P.) Ltd. v. Commissioner of Central Excise & Service Tax [2013] 33 taxmann.com 321 (Mumbai - CESTAT)