Payment for Background screening and Investigation Services is neither Fees for Technical Services (FTS) nor Royalty



Quick Summary
A recent ruling clarifies that payments for background screening and investigation services do not qualify as Fees for Technical Services (FTS) or royalty. The court determined that these services involve verifying candidate information, such as employment and education, rather than granting rights to use copyrighted material or making technical knowledge available to clients. Therefore, such payments fall outside the definitions of both FTS and royalty.

The definition of "royalty" requires that the consideration received must be for the use of, or right to use, any copyright of a literary, artistic, or scientific work. As envisaged in the decision of the Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence (P) Ltd. vs. CIT (2021) 125 taxmann.com 42 (SC)/432 ITR 471 (SC), it is important that payments should be made for acquiring the right to use the copyright in the product and not the product itself.

For qualifying as FTS, the information provided should involve imparting any kind of commercial experience, skill, or expertise. The report should impart some information concerning industrial, commercial, or scientific experience to the clients for the service to be called FTS. Further, the service should make available technical knowledge, experience, skill, know-how, or processes to the clients. 

Background Screening Payments: Not FTS or Royalty

The question in the case of HIRERIGHT LTD vs. ACIT, CIRCLE 2(1)(1) [2023-VIL-1277-ITAT-DEL] was whether payment for 'background screening and investigation services by a non-resident to its customers in India falls within the purview of Fees for Technical Services ("FTS") or royalty.'

The scope of the job was that the service provider provides human resource background screening services, including pre-employment background screening, employment, education, verification services, and investigative due diligence services. It verifies the details in respect of the concerned candidate, viz.

 

i) educational verification

ii) employment verification

iii) professional reference

iv) Other checks, including but not limited to global sanction checks, criminal checks, drug tests, etc. 

 

The above service was not to use a copyrighted product and did not make available technical knowledge, experience, skill, know-how, or processes to the clients. Hence, the payment was neither considered towards royalty nor FTS. This is quite a succinct but effective judgement, and the ratio may be useful in such cases.

FAQ :

The article clarifies that payments for background screening and investigation services are neither Fees for Technical Services (FTS) nor royalty.

For a payment to be considered royalty, it must be for the use of, or the right to use, any copyright of a literary, artistic, or scientific work, specifically for acquiring the right to use the copyright in a product, not the product itself.

For a payment to qualify as FTS, the information provided should involve imparting commercial experience, skill, or expertise, and the service should make available technical knowledge, experience, skill, know-how, or processes to the clients.

The case involved human resource background screening services, including pre-employment screening, employment and education verification, professional reference checks, and investigative due diligence, such as global sanction checks and criminal record checks.

The services did not involve the use of a copyrighted product and did not make technical knowledge, experience, skill, know-how, or processes available to the clients, thus not meeting the criteria for FTS or royalty.




About the Author

DESIGNATED PARTNER

Mr. Vivek Jalan is a FCA, Qualified LL.M (Constitutional Law) and LL.B. He is the Chairman of The Fiscal Affairs and Taxation Committee of The Bengal Chamber of Commerce and Industry. He is the Convenor on Indirect Taxes of the CII- Economic Affairs and Taxation Committee (ER); He is also a visiting faculty for Indirec ... Read more

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