Offshore services not taxable under DTAA, despite being covered in Section 9(1)(vii) post-amendment
Income from offshore activities, even though taxable under Section 9(1)(vii) in view of the Explanation substituted by the Finance Act, 2010, cannot be taxed in India if it is not effectively connected with its PE in India.
The assessee, a tax resident of Japan, carried out the offshore and onshore contract of supply of equipments and services. In respect to income from offshore contracts, the assessee did not offer to tax any income therefrom by claiming that it had not accrued or arisen in India. It provided that all activities in connection with the offshore supplies were undertaken outside India and project office in India, set-up for onshore contract, had no role to play in respect of such offshore services. Since the transfer of property in goods as well as the payments were carried on outside India, the income from such transaction was not taxable in India.
The Tribunal held in favour of assessee as follows:
Position under Section 9:
1) Before amendment, the provisions of Section 9(1)(vii) envisaged fulfilment of two conditions for treating the payment as ‘Fees for technical services’, viz., the services which were the source of income must have been utilized in India and such services must have been rendered in India;
2) However, the amendment by the Finance Act, 2010 had diluted these twin conditions. Now the rendering of services even outside India would be a good case for bringing the income of NR from fees for technical services within the purview of Section 9(1)(vii), if such services were utilized in India;
3) Thus, the payment for offshore service contract, even though carried outside India, would fall within the domain of Section 9(1)(vii).
Position under DTAA:
1) The Supreme Court in the case of Ishikawajma-Harima Heavy Industries Ltd v. DIT  158 TAXMAN 259 (SC) has held that Article 7 – Business Profits would be relevant insofar as the income from offshore services were concerned;
2) Since the entire services rendered outside India were not connected with the permanent establishment (‘PE’) in India, there could not be any taxability of this amount in India;
3) Hence, the income arising from the offshore services would not be taxable in India.
Therefore, the income from the offshore supplies, even though chargeable to tax under Section 9(1)(vii), yet was exempt under the DTAA and could not be charged to tax in view of Section 90(2) – IHI Corporation v. ADIT  32 taxmann.com 132 (Mumbai – Trib.)