Law explaining formation of AOP & taxability of off-shore supply & services


Court :
Delhi High Court

Brief :
The petitioner - Linde had formed a consortium with Samsung through MOU for jointly submitting a bid to secure a tender floated by OPAL to execute a project on turnkey basis. The proposal was accepted by OPAL. The consortium entered into an agreement with OPAL for carrying out work in accordance with the bid. Linde filed an application before the Assessing Officer under section 197 of the Actclaiming that no portion of the amount payable to Linde was liable to be subjected to withholding of tax under section 195 of the Act and that the amounts received/receivable by Linde for the said supplies and services were not chargeable to tax in India.The principal controversy which is required to be considered in the present petition is: whether in the given facts, Linde and Samsung constitute an Association of Persons within the meaning of ‘person’ as defined under section 2(31) of the Act? And, whether the income received/receivable by Linde for the supply of equipment, material and spares outside India and for rendering services outside India is taxable in India?

Citation :
Linde AG, LindeEngineering Division and ANR – Petitioners – versus - Deputy Directorof Income Tax- Respondent

THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P. (C) NO. 3914/2012 & CM No.8187/2012

LINDE AG, LINDE ENGINEERING DIVISION AND ANR.

Petitioners

versus

DEPUTY DIRECTOR OF INCOME TAX 

Respondent

 

Advocates who appeared in this case:

For the Petitioners : Mr S. Ganesh, Sr. Adv. with Mr R.P. Garg,

 Mr V.S. Wahi, Mr Rupesh Jain & Mr VaibhavKulkarni.

For the Respondent : Mr SanjeevSabharwal.

Before

CORAM:-

HON’BLE MR JUSTICE BADAR DURREZ AHMED

HON’BLE MR JUSTICE VIBHU BAKHRU

Judgment delivered on: 23.04.2014

 

Judgement

VIBHU BAKHRU, J

 

1. The petitioners have filed the present petition under Articles 226/227 of the Constitution seeking quashing of the ruling dated 20.03.2012 passed by the Authority for Advance Rulings (hereinafter referred to as the ‘Authority’). By the said ruling dated 20.03.2012, the Authority has disposed of the application (AAR No.962 of 2010) filed by the petitioner under section 245Q of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’) and held that the Consortium of the petitioner no.1 and Samsung Engineering Company Ltd. constitutes an Association of Persons and the income or profits received/ receivable by petitioner no.1 for the offshore  supply of goods and for rendering of offshore services were taxable in India. The said ruling is hereinafter referred to as the ‘impugned ruling’.

 

2. The petitioner no. 1, Linde AG, Linde Engineering Division, Pullach, Germany is hereinafter referred to as ‘Linde’. Samsung Engineering Company Ltd., Seoul, Korea is hereinafter referred to as ‘Samsung’. Linde and Samsung are hereinafter also referred to as members and collectively referred to as ‘Consortium’. ONGC Petro Additions Limited is hereinafter referred to as ‘OPAL’. Memorandum of Understanding dated 03.03.2008 is hereinafter referred to as ‘MOU’.

 

3. The principal controversy which is required to be considered in the present petition is: whether in the given facts, Linde and Samsung constitute an Association of Persons within the meaning of ‘person’ as defined under section 2(31) of the Act? And, whether the income received/receivable by Linde for the supply of equipment, material and spares outside India and for rendering services outside India is taxable in India?

 

Facts of the case

 

4. The relevant facts in brief are as follows:-

 

4.1. On 19.4.2007, OPAL floated a Tender Notice inviting bids executing the work (including undertaking all activities and rendering all services) for the design, engineering, procurement, construction, installation, commissioning and handing over of the plant for the Dual Feed Cracker and Associated Units of Dahej Petrochemical Complex in accordance with the Bid Documents. The project was to be executed on turnkey basis. 

 

4.2. On 03.03.2008, Linde and Samsung entered into a Memorandum of Understanding (hereinafter referred to as the ‘MOU’) whereby both the parties agreed to form a Consortium, for jointly submitting a bid to secure the contract for execution of the aforesaid project. The MOU was followed by an ‘Internal Consortium Agreement’ dated 14.03.2008 executed between Linde and Samsung. Thereafter, on 20.03.2008, the Consortium submitted its proposal pursuant to the aforementioned tender notice publicised by OPAL. The price bid was submitted by the Consortium on 28.07.2008. 4.3. The said proposal submitted by Linde and Samsung was accepted and OPAL issued a Notification of Award on 23.12.2008 awarding the work of executing the project on a turnkey basis to the Consortium. 23.12.2008 was also fixed as the effective date.

 

4.4 Thereafter, OPAL (referred in the Contract as the ‘Company’) and the Consortium (referred in the Contract as the ‘Contractor’) entered into a definitive agreement on 10.02.2009. As per the said agreement, OPAL awarded the contract for carrying on work of all activities and services required for the design, engineering, procurement, construction, installation, commissioning and handing over of the plant on a lump sum turnkey basis in accordance with the Bidding Documents, to the Consortium. The Consortium agreed to perform the work in conformity with the terms of the agreement and OPAL agreed to pay the consideration in the manner as specified in the contract. The agreement included various annexures, viz.: the General conditions of contract as amended, Technical documents, Agreed clarifications, contract price schedule, construction schedule, Project instructions, Milestone payment formula, Notification of  award, Letter of acknowledgement of notification of award from the Consortium, Integrity pact and the MOU executed between the Consortium members. The said agreement being Contract No. MR/OW/MM/DFC/02/2007 dated 10.02.2009 for dual feed cracker and associated units of Dahej Petro Chemical Complex is hereinafter referred to as the ‘Contract’.

 

5. Linde filed an application before the Assessing Officer under section 197 of the Act claiming that no portion of the amount payable to Linde for supply of equipment, material and spares and for providing basic and detailed engineering services was liable to be subjected to withholding of tax under section 195 of the Act as it was contended that the said transactions were performed and completed outside India and payments for the said transaction were also received outside India. It was, thus, contended that the amounts received/receivable by Linde for the said supplies and services were not chargeable to tax in India. The Assessing Officer did not accept the plea of Linde and directed OPAL to withhold tax on amounts paid to Linde in terms of the Contract. Thereafter, Linde filed an application before the Authority under section 245Q of the Act seeking advance ruling with regard to the status of Linde and Samsung as an Association of Persons and also as to the tax liability of Linde in India in respect of income received/receivables under Contract dated 10.02.2009.

 

The Authority admitted the application for consideration of the following questions:-

 

To read the full judgement, please find the attached file.



Attached File: http://lobis.nic.in/dhc/VIB/judgement/23-04-2014/VIB23042014CW39142012.pdf

 

 

 

Hetvi Sheth
on 01 May 2014
Published in Others
Views : 1674


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