Business Standard

ITAT rules in favour of Yum Restaurant­s

- DILASHA SETH

The income-tax appellate body has ruled that the services of the India vice-president (V-P) of Yum Restaurant­s (Asia) — which operates KFC, Pizza Hut, and Taco Bell — are not be taxable. The case pertains to an agreement between Yum Restaurant­s (Asia), the assessee, and its Indian counterpar­t, where Vinod Mehboobani was deputed as the vice-president at the time. The assessing officer held that technical services were being provided by the V-P on behalf of the assessee company, hence, the salary reimbursem­ent was ‘fee for technical services’ (FTS).

However, the income tax appellate tribunal (ITAT), Delhi, held that the V-P took part in the day-to-day functionin­g of the Indian counterpar­t, attended board meetings, signed its financial statements, and was under the direct control and superinten­dence of Yum Restaurant­s India. Besides, he did not “make available” any technology, knowledge, or skill.

During the period under considerat­ion, salary was paid by the assessee in Singapore and was reimbursed by Indian counterpar­t on a cost-to-cost basis. Therefore, the ITAT held that the V-P was an employee of the Indian concern and not of the assessee-company. Besides, the V-P had paid tax on his salary in India and taxing it as FTS would lead to double taxation, the Bench noted. India and

Singapore have a double taxation avoidance agreement. Yum Restaurant­s (Asia), the assessee, is a company incorporat­ed in Singapore. The assessing officer had also alleged the existence of a service/dependent agent permanent establishm­ent (PE) of the assessee in India and sought for attributio­n of business income to the PE on account of marketing activities carried out by the Indian counterpar­t. However, the ITAT held that the assessee did not have service PE in India. It pointed out the deduction of the salary cost would result in nil income and there would be no income attributio­n to the PE.

Neha Malhotra, director, Nangia Andersen LLP, said: “Judgments like these instil the faith of taxpayers in the Indian judiciary that a benefit enshrined under the tax treaty shall not be denied where the taxpayer deserves it.”

 ??  ?? The case pertains to an agreement between Yum Restaurant­s (Asia), the assessee, and its Indian counterpar­t, where Vinod Mehboobani was deputed as the vice-president at the time
The case pertains to an agreement between Yum Restaurant­s (Asia), the assessee, and its Indian counterpar­t, where Vinod Mehboobani was deputed as the vice-president at the time

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