K. Narasimha Chary, Judicial Member
1. Aggrieved by the order dated 30/1/2021 passed under section 143(3) read with section 144C of the Income Tax Act, 1961 (for short "the Act"), passed by the assistant Commissioner of income tax, circle-(3) (1) (2), International Taxation, New Delhi ("learned Assessing Officer") pursuant to the directions dated 16/11/2020 given by the Ld. Dispute Resolution Panel (DRP)-2, New Delhi ("Ld. DRP"), in the case of M/s Samsung Electronics Co Ltd ("the assessee"), for the assessment year 2017-18, assessee preferred this appeal.
2. Brief facts of the case as are relevant for the purpose of this appeal and as could be culled out from the record are that the assessee is a company incorporated under the laws of South Korea and is a tax resident of South Korea; that its principal activity is manufacturing and sales of various categories of televisions, home appliances, telecommunication terminals, semi-conductors as well as other state of the art IT products for global markets; that the assessee company also has two wholly owned subsidiaries in India under the name and style of Samsung India Electronics Private Limited ('SIEL') and Samsung R&D institute Bangalore India Private Limited ('Samsung R&D'). For the assessment year 2017-18 the assessee filed its return of income on 29.11.2017 declaring a total income of Rs. 2555,57,30,380/-.
3. During the course of assessment , it was found that the assessee has seconded certain expatriate employees to Samsung India Electronics Private Limited (a wholly owned Indian subsidiary of SEC) ('SIEL'); that the seconded -employees were taken specifically into employment by SIEL for the purpose of its own business operations and they performed business activities of SIEL under its control and supervision.
4. Assessee pleaded that mere presence of seconded expatriate employees does not create a fixed place PE of SEC under Article 5(1) of the Double Taxation Avoidance Agreement (DTAA) between India and Korea. In suppoit of above, we invite your kind attention to the relevant extract of Article 5 of the DTAA which defines permanent establishment.
5. Learned Assessing Officer, however, took the view that considering that the facts of the present case are similar to the facts examined in the assessments of earlier years, in this case PE is established; that some profits are required to be attributed to PE for taxation in India; and, therefore, recourse was made to Rule 10 of the IT Rules, 1961; that in view of the directions of the Ld. DRP and since Clause (iii) of this Rule provides that the Assessing Officer may determine the income of the non-resident in such other manner, as deem suitable where the profit attributable to the PE cannot be definitely ascertained, learned Assessing Officer took the remuneration cost for Rs. 224,65,05,417/- in respect of the expatriate employees seconded to SIEL for the year under consideration as the base for attributing income, consistent with tire past years, added a mark-up of 1 0 % on it on the understanding that had such services were rendered by an unrelated entity to SIEL, 10% would be a reasonable mark up that would have been earned by it. Assessee is, therefore, before us in this appeal.
6. In the circumstances, the main issue involved is, whether the expatriate employees seconded by the assessee to its subsidiary, viz., Samsung India Electronics Pvt. Ltd. (SIEL) constituted fixed place Permanent Establishment (PE) under Article 5(1) of India Korea DTAA or not.
7. Ld. AR brought it to our notice that the issue involved in this matter is no longer res Integra and was considered by the Tribunal in assessee's own case for assessment years 2004-05 to 2009-10, 2011-12 to AY 2015-16 in ITA numbers 65 to 70/del/2013, 315, 982/del/2016 and 4705 and 4706/del/2017 by order dated 22/3/2018, which was followed by another Bench in assessee's own case for the assessment years 2013-14 and 2015-16 in ITA numbers 5759 and 5760/del/2018 by order dated 14/12/2018. Ld. AR submitted that since the facts giving rise to the additions for all these years are identical, the consistent view taken by the Tribunal in assessee's own case may be followed in view of the addition of the Hon'ble Supreme Court in the case of Radha Soami Satsang Vs. CIT,193 ITR 321 (SC).
8. Per contra, Ld. DR submitted that the view taken by the Tribunal for the earlier assessment years has not been accepted by the Department and is under challenge by the Department before the Hon'ble High Court and therefore, the matter needs to be decided afresh. He, however, does not dispute that the facts giving rise to the additions for all these years are identical and, for that matter, there is no change in the law governing the issue.
9. We have gone through the record in the light of the submissions made on either side. The orders of the authorities below clearly establish that the facts involved in this appeal are identical to the facts involved for the earlier assessment years rights Assessment Year 2004- 05 to 2015-16. It could be seen from the record that during thecourseof reassessment /assessment proceedings for earlier years (i.e., AY's 2004- 05 to AY 2009-10., AY:s 2011-12 to AY 2015-16), in assessee's own case learned Assessing Officer held that the seconded expatriates constitute a Fixed Place Permanent Establishment (PE) of the assessee in India; that the assessee filed objections before the Hon'ble DRP against such draft orders passed by the learned Assessing Officer wherein the Hon'ble DRP upheld the addition proposed in the draft assessment orders; that thereafter the learned Assessing Officer passed the final assessment orders holding that the assessee furnishes services within India through the expatriate employees seconded to SIEL and thus there exists a fixed place PE of SEC in India. It could further be seen that aggrieved by the directions of the Ld. DRP, the assessee preferred appeals before the Tribunal for all the aforementioned years i.e., AY 2004-05 to AY 2009-10 and AY's 2011-12 to 2015-16, wherein by way of a common order dated 22/3/2018 the Tribunal held that there is no fixed place PE of SEC in India on account of expatriate employees.
10. A coordinate Bench of this Tribunal in deciding the main issue in ITA No. 5759 and 5760/del/2018 followed the view taken by the Tribunal in ITA numbers 65 to 70/del/2013 and batch by way of a common order dated 22/3/2018. For the sake of completeness, we deem it just and proper to refer to the observations of the coordinate Bench in Samsung Electronics Company Ltd., GURGAON v. ACIT in ITA No. 5759/Del/2018 by order dated 14-12-2018 for the assessment year 2013-14 and 2015-16, which read thus,-
7. We find that this issue has been discussed threadbare by the Tribunal right from the Assessment Years 2004-05 to 2014-15 (except for Assessment Year 2013-14) which is impugned before us on exactly similar points. The relevant observation and the discussion of the Tribunal including the statement of expatriates employees are as under:-
20. It is the argument on behalf of the assessee that the assessee is the holding company of the Indian subsidiary, (SIEL) in a highly globalised and competitive business environment, it is essential for group companies spread across the globe to communicate with each other to sustain its supply chain management, without which exchange of information on the aspects as to what sort of models/designs are preferred by the customers in the market on mid-term to long-term basis, relevant forecast, plan strategy to sell the products, detailed stock/Logistics status etc it would not be possible for any company to place optimized purchase orders at a right timing nor to acquire most promising manufacturing technologies. In this case also, as is evident from the statements recorded by the assessing officer, there is a constant exchange of information between the subsidiary and the Global Business Management ( "GBM") to perform the product/strategy functions from a global market perspective.
21. Learned AR submitted that it is to be noted that none of the statements of the employees reveal that the key decisions with regard to the products, pricing, launching etc are taken by the assessee but they are well within the realm of the Indian subsidiary. He submits that none of the statements recorded by the assessing officer would show that any activity of the GBM is done in India. He further submitted that the assessee does not carry out any market survey in India, but whatever the market survey that was spoken by the employees was in relation to the business of the subsidiary to understand the business of the Indian customers and provide India specific information to GBM's which in turn then carry out research and development to develop India specific products.
22. It is further submitted on behalf of the assessee that is not the case of even the assessing officer that any core management decision relating to the assessee business was taken in India and the involvement of the seconded expatriate employees working under the control of the Indian subsidiary in the decision-making process with regard to product and pricing, marketing, strategizing etc one taken in respect of the business of the Indian subsidiary and not for the business of the assessee. According to the ld. counsel for the assessee, all the communication between the employees of the assessee in Korea and the seconded employees in India relate only to the business of the Indian subsidiary and the seconded employees were discharging the duties of the subsidiary towards the holding company. He submits that no business of assessee is carried out by the seconded employees according to the statements recorded by the Ld. assessing officer. He, therefore, submitted that there is no basis for the authorities below to conclude that the seconded employees were acting in furtherance of the business of the assessee by sitting in the premises of the Indian subsidiary, thereby they constitute a fix replace permanent Establishment.
23. Per contra, it is argument of the Ld. DR that it is evident from the statements of the expatriate employees well corroborated by the material that the amount was paid to the foreign parent but not to the account of the employees and if it all shouldn't be any convenience as pleaded by the assessee, the part of the salary should've been limited to a foreign account of the expatriate employee but not to the account of the foreign parent. Further, as could be seen even from the mode of payment the salaries are not paid to the expatriate employees after it is received from the SIL. As a matter of fact it was confronted to one of the employees with reference to the bank accounts that SEC paid the amount to personal bank account of the employees when such amount is limited to SEC, however the remittance of salaries are made to SEC on quarterly basis, which means that a person would get his salary in the his South Korean bank after 3 months of the receipt of salary in India and certainly it's not the to the convenience of such person.
24. Ld. DR further argued that the details are available show that the debit note has been raised by SEC, Korea and then after payment is made from SIL India, which implies the salaries are not paid to the employees of SIL after the payment has been received from India but the salaries are paid as if such expats were their own employees and then a debit note in respect of such salaries is raised by SIL India. Basing on this he argues that the expatriate employees are in fact the employees of the Korean entity and the beneficiary of the payments from SIL is the Korean entity.
25. Ld. DR further drew our attention to Point No. 9 of the letter of appointment of Mr K W Cho, wherein it is stated that, -
"your services may be utilized in any of the offices of the branches of the company or in any department of the company or in any of the associated companies as may be required from time to time. Your services can be transferred to any of the branches of the company located in India, whether in existence at the time of your appointment are set at a later date at the sole discretion of the management without detriment to your status and emoluments."
and to point No 12 where it is stated that,- during your appointment with a company, since you are on depredation, you will be governed by service as rules as applicable to Samsung India Electronics Co Ltd Korea employees.
26. He lastly submitted that the expatriate employees, as revealed by their statements, are working in furtherance of the business interests of the Korean entity and their work description does not fit in the description of preparatory or auxiliary in nature as such there is no employer to employer relationship between the Korean parent and Indian subsidiary.
27. It is pertinent to note that having gone through the statements and also some other material relating to the aspects as to who pays the salary, whom the senior employees reported to, frequency of communication with headquarters in Korea etc, ld. DRP dealt with almost all the aspects argued by the ld. DR before us. They found that the assessee is not exercising that kind of absolute control over posting of employees to the Indian subsidiary, but the assessee has been posting the employees only pursuant to the Triparte agreements between the assessee, Indian subsidiary and the concerned employee. Ld. DRP further held that the Indian subsidiary is a company incorporated under the laws governing the companies in India and is confirming to all the rules and regulations that govern the operations of a corporate body in the country, by filing its returns and paying the taxes under the income tax at and other statutes. It was further observed by the library DRP that the international transactions have been reported under the transfer pricing regulations and examined by the TPO.
28. Ld. DRP vide paragraph No. 188.8.131.52 recorded that the observations of the Ld. AO in respect of the assertion as to the subsidiary as PE, the conclusions made by the AO are based on the statement of the various employees of SIEL during the survey conducted at its premises. Since SIEL is a company incorporated under the laws governing the companies in India and is confirming to all the rules and regulations that govern the operations of a cooperate body, filing its returns of income and paying taxes by reporting the international transactions under Transfer Pricing Regulations, it cannot be said that the SIEL which is subsidiary company is a PE and rejected the findings of the AO on that aspect.
29. So also the Ld. DRP by paragraph no. 184.108.40.206 rejected the contention of the AO that SIEL may be treated as a dependent agent for the purpose of Article 5. Ld. DRP also rejected the view of the AO that SIEL is a place of management for south east operations and held that no PE of the assessee exists under Article 5(2)(a) of the treaty with regard to south east operations.
30. Vide paragraph no. 220.127.116.11, Ld. DRP rejected the suggestion of the Ld. AO that SIEL can be considered as a service PE of the assessee. Lastly Ld. DRP held that the SIEL had nothing to do with the provision for royalty and fee for technical services.
31. Having rejected all the grounds pleaded by the AO, Ld. DRP reached a conclusion that SIEL be treated as a deemed fixed place PE of the assessee, and the relevant observation is to the effect that,-
"Although they derive their remuneration from SIEL, their formal contract of employment is with the Parent company. The statements of some of these employees report frequently to SEC. Sh. B. D Park, Director (Mobile and I.T business), who is at number two position in SIEL has acknowledged that he communicates with SEC almost daily. Sh. J. H Kyung, Chief Financial Officer has stated that he is in touch with SEC two to three times a week. Sh. H. K Seo, President Marketing and Sales also stated that he communicates with SEC once a week in general. Sh. Yong Hee Cho, who is in charge of sales has stated that he communicates with SEC once a week. Statements of some of these officers who are of the rank of Division Heads, also show that they continue to be under some control of the SEC for certain activities like research and development of products for the Indian market, development of marketing strategy, decisions relating to pricing of product, exploration and development of new markets in the neighboring countries. These are the functions that would normally have been performed by SEC through its own employees, or such functions would have been outsourced by it to some third party, in which case the third party would be entitled to some remuneration for these services. However in the present case it is the seconded employees of SEC are performing these functions jn addition to their own duties performed by them for SIEL. For performing the above functions of SEC these employees have a 'fixed place of business' i.e the premises of SEiL available to them. Moreover, it is an admitted fact that apart from these 'seconded employees' who are in the payroll of SIEL, other employees of SEC also come from time to time to India and use the premises of SIEL for the functions performed by them for SEC. This is quite evident from the statement of Sh. Mahesh Sutagatti and Sh. Anshuman Sah, VP (Sales & Marketing). Sh. Suttagati is himself an employee of SEC who was in India for the development of assessee's Wi-max business in India. Sh. Sah has admitted that the employees of SEC come from time to time and work with the local personnel."
32. We have considered the observations of ld. DRP in the light of the above statements. There is no doubt that there is seemless information exchange between the employees of the assessee and the expat employees. However, on a careful consideration of the entire matter including the statements of the expatriate employees, extracted supra, we are of the considered opinion that the statements show that such information exchange relates to the models/designs to the liking of the Indian consumers, plans and strategies relating to the sale of the products, detailed stock/logistical status, the market strategies both the mid and long terms etc.
33. As rightly argued by the Ld. AR that none of the statement would go to show that the any activity of the global business management (GBM) has ever been conducted in India or that the market survey that is conducted in India, as spoken by the expatriate employees has nothing to do with the business of the Indian subsidiary and it is solely for the benefit of the assessee. All the activities that are spoken by the expatriate employees related to the specificity of the products, stock verification, they designs according to the preferences of the Indian consumers, the market strategies to be adopted etc are clearly within the ambit of the business of the Indian subsidiary. Such a communication would primarily benefit the Indian subsidiary, and would help the assessee in its GBM to sustain its supply chain management and to place optimized purchase orders at a right timing or to acquire the most promising manufacturing technologies, as is submitted on behalf of the assessee.
34. At the best, the statements and other material relied upon by the revenue show that by way of the seamless communication between the Indian subsidiary and the assessee, the expatriate employees were only discharging the duties of the subsidiary company towards the holding company. Whatever the benefits that are derived by the Indian subsidiary by such communication are offer to tax in India. We therefore find that the activities spoken by the expatriate employees in their statements are in the nature of reporting required in the course of discharge of the functions of the subsidiary company towards the holding company, and such activities do not constitute a PE under Article 5(4)(d), (e) and (f) of the DTAA.
35. As rightly pointed out by the Ld. AR, even if the impugned activities of seconded employees amount to rendering of services to subsidiary by the assessee, in view of the fact that there is no provision for a service PE in India- South Korea DTAA, no question of Service PE arises in this matter. As a matter of fact, Ld. DRP vide paragraph No 18.104.22.168 of their Order observed the same.
36. From a reading of Art.5 of the DTAA, we understand that in order to constitute a PE, there must be a fixed place of business available to the assessee, through which the business of assessee is wholly or partly carried on. In the preceding paragraphs we held that what the expat employees are doing is only the discharge of the functions of subsidiary towards the holding company, which is for the benefit of the business of the subsidiary to make the GBM understand the priorities and preferences of the Indian customers by providing India specific information to GBM's which in turn then carry out research and development to develop India specific products. By no stretch of imagination could it be said that it is in furtherance of the business of the assessee de hors the business of the subsidiary.
37. In the absence of proof as to any management activity of the assessee being conducted in India or that it is established that the decisions relating to the products to be manufactured, pricing in the domestic markets, or the decisions relating to the launch of such products in India is taken by the assessee, we find it difficult to agree with the authorities below that through the expatriate employees the assessee has been conducting the business of assessee in India. Further, except stating that 10% of the remuneration of these employees has to be assumed as the income of the assessee, absolutely there is no evidence that is placed on record by the assessing officer to show that by way of business through these expatriate and seconded employees, the assessee derived any business income in India.
38. For these reasons, we are of the considered opinion that there is neither any business co
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nducted by the assessee in India through the expatriated employees nor any income is derived by them though the activities of the employees. Consequently, we hold that there is no fixed place PE of the assessee constituted through the expatriated employees. Issue is, therefore, answered in favour of the assessee. ADDITION OF 10% ESTIMATED INCOME ON THE TOTAL REMUNERATION COST OF EXPATRIATE EMPLOYEES SECONDED TO SIEL IN INDIA, 40. Ld. AO, in the assessment order, proceeded to attribute income in respect of such permanent establishment as per Article 7 of the Indo South Korean treaty. While making recourse to clause (iii) of Rule 10 of the Income Tax Rules, 1962, he took the remuneration cost of the expatriate employees seconded to SIEL as the basis for attributing income and added an estimated income of 10% on the understanding that had such services been rendered by an unrelated entity to SIEL, 10% would be a reasonable markup that would have been earned by it. Ld. DRP confirmed this finding of the Ld. AO. However, in view of our finding that there is no business activity that is conducted by the assessee through the expatriate employees, the question of estimated income does not arise." 11. The above finding of the Tribunal consistently for the earlier years stand supplied to the facts of this case insofar as the grounds No. 1 to 6 are concerned. Ground No. 7 is in respect of not granting the credit for TDS of Rs. 76, 45, 955/-and in the fitness of things we direct the assessing officer to verify and give credit for TDS as per law, and for such purpose, we remand issue to the file of the learned Assessing Officer. Interest under section 234B and the initiation of penalty under section 270 A of the Act are consequential in nature and do not require any separate adjudication. 12. In the circumstances, we find that the issue covered by the grounds in this appeal is answered in favour of the assessee by Tribunal in earlier assessment years and therefore, in view of the consistent stand taken by the Tribunal in assessee's own cases for previous assessment years, while respectfully following the decision of the Hon'ble Apex Court in the case of Radha Soami Satsang Vs. CIT,193 ITR 321 (SC), we hold the issue in favour of the assessee and direct the assessing officer to delete the addition of Rs. 22,46,50,541. 13. In the result, appeal of the assessee is allowed in part and for statistical purpose.