Case: eBay
International AG vs Dy DIT (Mumbai – Trib)
Facts: The
assessee, eBay International AG, was incorporated in Switzerland. It operated specific
websites in India that provided an online platform for facilitating the
purchase and sale of goods and services to users based in India.
The assessee had entered into
marketing support agreements with eBay India and eBay motors, for availing of
certain support services in connection with its business in India.
The
AO concluded that the payments received by the assessee from operations of
websites were mainly in the nature of FTS. Further, it also held that the
assessee had a PE in India in the form of its entities namely, eBay India and
eBay motor. On appeal by the assessee, the DRP upheld the order of AO.
Aggrieved-assessee filed the instant appeal.
HELD
by the Tribunal in favour of assessee:
·
Fees accruing to assessee on successful
completion of the transactions between the buyer and seller could not be
described as FTS, as the assessee had no role to play in effecting sales and
these were in nature of business profits;
·
The existence of PE as per Article 5 of
India-Singapore DTAA (‘treaty’) is a must for bringing to charge any business
profits as per Article 7 of treaty. The eBay India and eBay motors were
dependent agents of assessee, as they were assisting it in carrying on business
in India and if any of the conditions given in para 5 of Article 5 of treaty
was satisfied, then they would constitute dependent agent PE of the assessee in
India
·
First condition: "has and habitually
exercises in that State, an authority to negotiate and enter into contracts for
or on behalf of the enterprise”. By performing the activities as narrated in
the agreement, it was seen that eBay India had at no stage negotiated or
entered into contract for or on behalf of the assessee
·
Second condition: “dependent agent habitually
maintaining a stock of goods for or on behalf of the enterprise”. This
condition was not satisfied as eBay India didn’t maintain any stock of goods
for delivery for or on behalf of the assessee
·
Third condition: “dependent agent manufactures
or processes the goods or merchandize in that State for the enterprise”.
Obviously, this clause was also not applicable because eBay Motors was not
required to manufacture or process the goods or merchandise on behalf of the
assessee;
·
Thus, the eBay India and eBay motors were
dependent agents of assessee but they did not constitute dependent agent PE
and, thus, profits earned by assessee could not be taxed as per Article 7 of
treaty
CA
Rahul Jain
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