Dear Readers, We are pleased to present TransPrice Times for the second fortnight of June 2016. This issue contains diversity of case rulings ranging from issues on royalty / FTS to management service fees and TDS rates on payments made to a non-resident. CBDT has been on a notification spree where in last 2 days, it has notified the foreign tax credit rules and the much awaited 'indirect transfer' rules which will be taken up extensively in the next bulletin along with the recent amendment on General anti-avoidance rules (GAAR). We hope you find this newsletter both timely and useful, and we look forward to your feedback and suggestions to improve it further. You can write to us at akshaykenkre@transprice.in Happy Reading and a very happy CA day (1 July 2016)!!!

1. TransPrice Times
Edition: 16st
– 30th
June 2016
Contact us: 607A, 7th
Floor, Ecstasy Commercial Complex, City of Joy, JSD Road, Mulund (W), Mumbai –
400 080. Tel: 022-64640494; Mobile: +91 9819245424; email: akshaykenkre@transprice.in
Siemens Aktiengesellschaft - SC
Outcome: Against taxpayer (Admission of
revenue SLP)
Category: Royalty / FTS
SC to examine cash vs. accrual basis taxation for
royalty/FTS under Indo-German treaty.
Further, SC admits Tax Department’s application
against Bombay HC judgement in case of taxpayer
were HC had upheld ‘receipt basis’ taxation of
royalty / FTS under India - Germany treaty. HC had
relied on notification dated August 26, 1985 on
amended treaty, which provides royalty / FTS
assessment only in the year amounts are received.
HC had rejected Revenue’s stand that credit entry
to taxpayer - NR’s account in Indian company’s
books amount to receipt by the non-resident.
DQ Entertainment (International)
Ltd – Hyderabad
Outcome: In favour taxpayer
Category: IPR Valuation
Tax Court holds Discounted Cash Flow (DCF)
approach for sale of IPR on actual figures & latest
information as incorrect and not good in law.
The taxpayer sells ‘IP’ at development stage to its
“AE” after independent valuing and arriving at sale
consideration and also submits future projections.
Previously, the tax officer had done IPR valuation
by replacing future projections with actual figures.
TVS Logistics Services Ltd – ITAT-
Chennai
Outcome: Against taxpayer
Category: Interest free loan
Tax court rules against taxpayer in respect of
interest free loan granted to foreign AE.
Further, holds that there is no prohibition for
expanding the business outside India by investing
its own funds outside India. The taxpayer states
interest free loan to be from equity capital and not
from borrowed capital. However, when taxpayer
borrowed funds in India and paid interest in India,
investment of funds outside India would naturally
reduce the tax liability in India.
Flakt (India) Ltd – Chennai – ITAT
Outcome: In favour of taxpayer
Category: Management Service Fees.
Tax court rules in favour of taxpayer in respect of
management service fees paid to foreign AE.
Tax officer on estimation basis had determined
arm’s length price of management service fee paid
to AE at 25% of the amount actually paid. ITAT
holds that, in the absence of any comparison of the
transaction with transaction carried out in an
uncontrolled market, tax office cannot use such
estimation. The Tax Officer cannot independently
come to a conclusion that volume and quality of
services was disproportionate to the payment.
Pricol Ltd – ITAT – Chennai
Outcome: In favour of taxpayer
Category: Tax deduction at source (TDS)
Tax Court rules in favour of taxpayer in respect of
TDS rates on payments made to non-residents as
per applicable tax treaty.
Further, tax court rejects use of higher 20% TDS
rate (without PAN) as per Section 206AA of
income-tax Act 1961 and adopts TDS at 10% under
the applicable tax treaty. As per the tax Court
206AA cannot override the tax treaty.
Recent News:
India-Switzerland move closer to
Automatic Information Exchange
Both India & Switzerland have shown clear intent
to hail the advent of BEPS and combat tax evasion
by allowing shared access to information. The aim
is to improve basic, legal and beneficial ownership
information of legal persons and legal
arrangements.
CBDT relaxes certain Non-residents
from higher TDS applicability
The necessity of obtaining PAN for non-residents
under section 206AA for being eligible for lower
withholding tax rates has been relaxed by
substituting other information from the non-
residents. Refer notification
http://www.incometaxindia.gov.in/communicatio
ns/notification/notification532016.pdf