Business Standard

ITAT rules in favour of Domino’s Pizza

Tribunal says Jubilant Foods will have to pay 10% tax on royalty instead of the earlier demand of 40%

- INDIVJAL DHASMANA

The Income Tax Appellate Tribunal (ITAT) has rejected a 40 per cent tax demand on sales at Jubilant Foods stores, and has allowed the chain to pay 10 per cent tax on royalty.

Julibant Foods operates the chain of Domino’s Pizza stores in India.

The issue relates to permanent establishm­ent of multinatio­nal corporatio­ns when these companies have a franchisee agreement with Indian players.

The ITAT has turned down the revenue department’s appeal that Jubilant Foods constitute­s a permanent establishm­ent of US-based Domino’s Pizza Internatio­nal Franchisin­g Inc. The case relates to assessment year 2012-13 and an income of ~10.65 million.

The assessing officer contended that Jubilant Foods had an exclusive franchise in India and was dependent on Dominos, said Naveen Wadhwa, tax expert at Taxmann.

The quality of material and equipment used by Jubilant Foods has to be approved by the US-based company, he argued. Prices are decided by the assessee and not by Jubilant Foods or sub-franchise, he said.

According to the assessing officer, Jubilant Foods does not have economic independen­ce and should be treated as a dependent agent for the purpose of determinin­g a permanent establishm­ent. The assessing officer, accordingl­y, passed a draft assessment order and treated the company's receipt from operations in India as a business receipt, taxable at 40%.

In response, Domino’s filed an appeal before the Dispute Resolution Panel, objecting on the grounds that the assessee did not constitute a dependent agency or permanent establishm­ent in India, according to Article 5 of India-US Double Taxation Avoidance Agreement (DTAA).

The Dispute Resolution Panel accepted the contention of the assessee and set aside the action of the assessing officer in treating the royalty income as profit and gain from business.

The revenue department contested this case at the ITAT, Mumbai.

The tribunal examined the master franchise agreement between Domino’s and Jubilant Foods. According to the agreement, the assessee was entitled to only 3 per cent of the sale proceeds as its franchise fee. Profit and loss from the franchise business belonged to Jubilant Foods or its sub-franchise.

Jubilant Foods does not maintain any stock or merchandis­e in India on behalf of Domino’s and no activities are carried out by Jubilant Foods on behalf of the assessee.

The tribunal held that master franchisee­s are independen­t business entities. Restrictio­ns provided in the agreement, with respect to pricing or advertisem­ent, are only to safeguard the brand value and ensure the correct receipt of royalty income. Accordingl­y, the tribunal ruled that franchisee fees are to be taxed as royalty at 10 per cent.

 ??  ?? Jubilant Foods operates the chain of Domino’s Pizza stores in India
Jubilant Foods operates the chain of Domino’s Pizza stores in India

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