we are paying some technical knowhow fees to a party in Netherlands but we have not utilised any services in india and are even not planning to utilise in future.We acquired 15CA CB from the consultant but he did not deduct tax on the basis of transfer of technology - income not due and arising in INdia. But our statutory auditors are not accepting.
Is this correct or we will have to pay tax, pls suggest.
As we are closing books, It would help me to take decision on urgent basis for FY 13-14.
Dear Ekta,
Since the services are not rendered in India and nor are they used in India, the CA is correct in issuing a No TDS Certificate.
you can show your auditors, the following clause in the India-Netherlands DTAA which talks about the place of taxability of the services.
It says, the same is taxable in the country in which the services have actually been provided.
If you have any queries...pl ask
Royalties and Fees for Technical Services - 1. Royalties and fees for technical services arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State
For purposes of this Article, “fees for technical services” means payments of any kind to any person in consideration for the rendering of any technical or consultancy services (including through the provision of services of technical or other personnel) if such services :
(a) are ancillary and subsidiary to the application or enjoyment of the right, property or information for which a payment described in paragraph 4 of this Article is received; or
(b) make available technical knowledge, experience, skill, know-how or processes, or consist of the development and transfer of a technical plan or technical design.
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