Monday, September 8, 2014

Sum paid to Singaporean-Co. for logistic services wasn’t ‘FTS’ as it didn’t satisfy make available clause of DTAA

Where a Singaporean company rendered logistic services to assessee, without making available its technical knowledge, experience or skill, there was no liability to deduct tax at source from impugned payments under India-Singapore DTAA.


a)The assessee entered into a logistics services agreement with its Singaporean associated enterprise ('S'). In terms of agreement, 'S' was required to provide distribution management and logistics services to the assessee.

b)The Tribunal held that, as 'S' was not having any permanent establishment in India and that it had not made available the technical knowledge, experience or skill to the assessee, the payments made by assessee to 'S' were not taxable in view of Articles 7 and 12 of India-Singapore DTAA.

c)The aggrieved revenue filed the instant appeal

The High Court held in favour of assessee as under:

1)This Court had an occasion to consider relevant DTAA in the case of CIT v. De Beers India Minerals (P.) Ltd. [2012] 21 214 (Kar.), wherein it was held that:

a)If along with technical services rendered, the service provider also made available the technology, which it had used in rendering services, then payment for said services would fall within the definition of "fees for technical services" as contained in DTAA.

b)However, if technology was not made available along with technical services, what was rendered was only technical services; the technical knowledge was withheld, then such a technical service would not fall within the definition of "technical services" in DTAA.

2)From the facts of the instant case, it was clear that S had not made available to the assessee the technology or the technological services, as it was required to provide the distribution, management and logistic services.

3)When once it was held the technical services had not been made available, then in view of the law declared in case of De Beers India Minerals (supra), there was no liability of assessee to deduct tax at source. Therefore, payment made to Singaporean-Co. for logistic services was not ‘Fee for Technical Services’ as it didn’t satisfy make available clause of India-Singapore DTAA.- DIT.(INTERNATIONAL TAXATION) V. SUN MICROSYSTEMS INDIA (P.) LTD [2014] 48 93 (Karnataka)