Bi-Month-to-month Tax Publication – March, 2022-April, 2022 – Tax Authorities

DIRECT TAX

AUSTRALIAN GOVERNMENT AGREES TO AMEND ITS DOMESTIC TAX LAWS TO

STOP DOUBLE TAXATION OF INCOME OF INDIAN IT COMPANIES FROM OFFSHORE

SERVICES TO AUSTRALIAN COMPANIES

Article 12 of the Double Taxation Avoidance Agreement between

India and Australia (DTAA) grants Australia the

right to tax income earned by providing technical services as

royalty.

Federal Court of Australia (Federal Court), in

the case of Satyam Computer Services Limited v. Commissioner of

Taxation1, had held that income earned by

Indian information technology (IT) companies for

providing IT services to Australian company through employees based

in India (offshore services) would be taxable as

‘royalty’ in Australia.

The taxpayer, an Indian IT company resident in India, had a

permanent establishment (PE) in Australia and

separately was also providing offshore services to its clients in

Australia. The fees paid to the taxpayer by Australian clients for

providing offshore services was taxed as ‘royalty’ in

Australia, as well as in India under Indian income tax laws. The

taxpayer challenged the decision of imposition of tax in Australia

in the Federal Court.

The taxpayer claimed that: (a) royalty, i.e., income earned for

offshore services, could be taxed in Australia as business income

under Article 7 of the DTAA, only if it was connected to its PE in

Australia. It contended that that since the offshore services were

not undertaken by its Australia PE, such income would not be

taxable in Australia; and (b) income received for offshore services

is not taxable in Australia under its domestic tax law, as under

Australian tax law income of a non-resident taxpayer is taxable

only when it has an Australian source.

However, rejecting the claim of the taxpayer, the Federal Court

held that a portion of payments received by the taxpayer against

offshore services satisfied the definition of ‘royalty’

under Article 12(3)(g) of the DTAA and hence such payments were

liable to tax as royalty income in Australia.

Due to the ruling of the Federal Court, any income earned by

taxpayers for providing offshore services to clients in Australia,

though not taxable under the domestic tax law of Australia, was

made taxable in Australia by virtue of DTAA provisions.

This ambiguity created in respect of taxation of income received

by Indian IT companies for offshore services stands resolved with

India and Australia entering into an Economic Cooperation and Trade

Agreement (ECTA) on April 2, 2022 and signing a

letter of understanding2 under which Australian government

has committed to amend its domestic tax laws, to prevent taxation

in Australia of income earned by Indian IT firms from offshore

services. This development comes as a huge relief to Indian IT

companies which were adversely impacted by the decision of Federal

Court.

SUPREME COURT UPHOLDS VALIDITY OF ASSESSMENT ORDER (AO) PASSED

ON AMALGAMATING COMPANY CEASING TO EXIST POST AMALGAMATION

The Supreme Court (SC), in the case of Mahagun

Realtors Private Limited v. Principal Commissioner of Income Tax

(PCIT)3 distinguished, on facts, its own

decision, in the case of PCIT v. Maruti Suzuki India Limited4 and

upheld the validity of an AO passed in the name of amalgamating

company which ceased to exist post amalgamation.

Mahagun Realtors Private Limited (MRPL or

taxpayer), an Indian company, was engaged in the

business of development of real estate. MRPL and Mahagun India

Private Limited (MIPL) filed for a scheme of

amalgamation with the Delhi High Court (HC) which

was approved by its order dated September 10, 2007 with effect from

May 1, 2006.

Pursuant to MRPL’s filing of its income tax return for

assessment year 2006-07 and subsequent conduct of survey

proceedings by the tax authorities against MRPL, certain

discrepancies were found in MRPL’s books of accounts. Hence,

search and seizure operations were carried out on MRPL group

companies including on MRPL. One of MRPL’s director, during

search and seizure operations, admitted to MRPL having not

disclosed some income in its income tax returns.

In response to various notices from tax authorities to file

income tax return for such undisclosed income, MRPL filed a return

after a period of 4 years. Upon filing of such return, tax

authorities initiated scrutiny assessment and passed an AO in the

name of MRPL (represented by MIPL).

Against the AO, the taxpayer claimed that upon sanction of

amalgamation scheme the taxpayer stood dissolved and hence AO

issued by the tax authorities was invalid.

Disagreeing with the taxpayer, the SC upheld the AO. For coming

to its decision, SC took note that the taxpayer had: (a) not

intimated the tax authorities about amalgamation prior to issue of

AO; and (b) undertaken various compliances such as filing of income

tax returns, filing of appeal, etc., in the name of amalgamating

company (i.e., MRPL) even after sanction of amalgamation

scheme.

SC also laid down a principle that, although post amalgamation,

amalgamating company ceases to exist, the business of amalgamating

company continues with the amalgamated company.

INDIRECT TAX

Re-credit/ restoration of input tax credit (ITC)

inadvertently utilized for integrated goods and service tax (IGST)

payment on exports in electronic credit ledger (ECL)

The Gujarat High Court (HC), in the case of

I-Tech Plastic India Private Limited v. State of Gujarat5, held

that if the authorities have accepted that there was an error in

grant of refund on payment of IGST and resultantly, accepted

repayment of the erroneous refund, as a corollary, the credit of

the ITC must be restored. The HC directed the authorities to

re-credit/ restore ITC in ECL stating that it would otherwise

amount to double taxation which is not permissible under law.

Demand for Business Support Services

(BSS) on revenue sharing agreement between film exhibitors and

distributors set aside by Customs Excise and Service Tax Appellate

Tribunal
(CESTAT), upheld by

Supreme Court (SC)

The SC, in the case of Commissioner of Service Tax v. Inox

Leisure Limited6, while upholding the view taken by

CESTAT held that a revenue sharing arrangement does not necessarily

imply provision of services, unless service provider and service

recipient relationship is established. SC held that CESTAT had

correctly taken the view that since revenue sharing arrangement

between distributors and exhibitors of cinematographic films does

not mean provision of services, the demand against Inox under BSS

was set aside.

Liabilities of the corporate debtor not forming a part

of the resolution plan and not being settled by the National

Company Law Appellate Tribunal (NCLAT) extinguishes on the approval

of the resolution plan

The High Court of Rajasthan, in the case of UltraTech Nathdwara

Cement Limited v. The Commercial Tax Officer, Anti-Evasion, Circle

II-Jaipur7, held that the demands raised by

the operational creditor against the corporate debtor except to the

extent admitted by the NCLAT are to be declared infructuous. When a

resolution plan is approved by the adjudicating authority, it

becomes binding on all the stakeholders, including the creditors,

by virtue of Section 31 of the Insolvency & Bankruptcy Code,

2016. It further held that if the creditor has already received any

amount by way of the amounts deposited under protest and by way of

pre-deposit as mandatory statutory obligation in excess of what has

been approved under the resolution plan, it would have to be

refunded to the successful resolution applicant.

Countervailing Duty (CVD) and Special Additional Duty (SAD)

paid during Goods & Services Tax (GST) regime are entitled to

be refunded

The CESTAT, in the case of Mithila Drugs Private Limited v.

Commissioner, Central Goods and Service Tax8, held that refund of

CVD and SAD under the provisions of Section 142(3) and (6) of the

Central Goods and Services Act, 2017 (CGST Act) is

allowable, as credit is no longer available under the GST regime,

which was however available under the erstwhile regime of central

excise prior to 30.06.2017.

The award of interest in refund and amount must be as per the

statutory provisions of law

The SC, in the case of Union of India v. Willowood Chemicals

Private Limited & Anr.9, held that according to Section 56

of the CGST Act, if an applicant is not refunded any tax ordered to

be refunded under Section 54(5) within 60 days of the application,

interest not exceeding 6 per cent would become payable. The proviso

to said Section prescribes that where any claim of refund arises

from an order passed by Court and if the same is not refunded

within 60 days, the interest payable would be 9 per cent. The SC

held that the instant case did not arise from any order passed by

Court and there was no inordinate delay. The SC further noted that

whenever a specific provision has been made under the statute such

provision has to govern the field.

CIRCULARS AND NOTIFICATIONS

Telangana Government introduced a One Time Settlement

Scheme to settle disputed tax under the legacy acts10

The Government of Telangana has decided to introduce a one-time

settlement scheme to settle disputed tax under the legacy acts such

as Andhra Pradesh General Sales Tax Act, 1957, the Telangana Value

Added Tax Act, 2005, the Central Sales Tax Act, 1956 and the

Telangana Entry of the Goods into Local Areas Act, 2001. For

settlement of disputes under this scheme, each year of assessment

shall be a distinct unit. Additionally, the dealers/ persons

availing the one-time settlement scheme, the interest and penalty

shall be waived off completely.

Footnotes

1.(2018)

FCAFC 172

2.https://www.dfat.gov.au/sites/default/files/aiecta-side-letter-taxation-australia-to-india.pdf

3.Civil

Appeal No. of 2022 (Arising out of SLP (C) No. 4063 of

2020

4.Civil

Appeal No. 5409 of 2019

5.TS-160-HC(GUJ)-2022-GST.

6.TS-93-SC-2022-ST.

7.D.B.

Civil Revision Petition No. 211/2014.

8.Excise

Appeal No. 50808 of 2020-SM.

9.CIVIL

APPEAL NOS.2995-2996 OF 2022.

10.G.O.Ms.No. 45 – REVENUE (CT-II) DEPARTMENT

dated May 9, 2022.

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