Tribunal held that referral fee did not fall within realm of “FTS” as envisaged in Article 12 of India-USA, DTAA; and (ii) that as said payment made to foreign concern for services which were rendered entirely in USA, constituted its business profits within meaning of Article 7 of India-USA DTAA, therefore, in absence of any PE of said foreign concern in India, said amount could only be brought to tax in USA. Even as per s. 90(2), in pursuance of beneficial provisions of India-USA DTAA, as referral fees received by foreign concern was not taxable in India, therefore, no obligation was cast upon assessee to have deducted any TDS on said payment. Accordingly no disallowance can be made (AY. 2012-13)
Knight Frank (India) Pvt. Ltd. v. Asst.CIT (2020) 185 DTR 292 / 203 TTJ 117 (Mum.)(Trib.)
S. 40(a)(i) : Amounts not deductible–Deduction at source-Royalty-Fees for technical services-Not liable to deduct tax at source on referral fee paid to the foreign concern as the same did not fall within the realm of “Fees for included services” and there was no Permanent Establishment of the said foreign concern in India-No disallowance can be made-DTAA-India-USA. [S. 9(1)(vii), 90(2), Art. 7, 12]