The
Income Tax Appellate Tribunal, Mumbai Bench, in Sky High Appeal XLIII
Leasing Company Ltd. v. Assistant Commissioner of Income-tax (International
Tax) and connected appeals, examined the taxability of lease rentals
received by Irish aircraft leasing companies from Indian airline operators and
the applicability of the Multilateral Instrument (MLI) to the India–Ireland
Double Taxation Avoidance Agreement (DTAA).
The
assessees, tax residents of Ireland and part of an international aircraft
leasing group, had entered into dry operating lease agreements with Indian
airline operators for leasing aircraft. For the relevant assessment year,
returns were filed declaring nil taxable income in India, claiming that the
lease rentals were business profits taxable exclusively in Ireland under
Articles 7 and 8 of the India–Ireland DTAA, and did not constitute “royalty”.
It was further contended that the assessees had no permanent establishment in
India.
The
Assessing Officer, invoking Articles 6 and 7 of the MLI embodying the Principal
Purpose Test (PPT), denied treaty benefits on the ground that the principal
purpose of incorporation in Ireland was to obtain DTAA benefits. The lease
rentals were characterised as royalty and, alternatively, profits attributable
to an alleged permanent establishment in India. The Dispute Resolution Panel
upheld the application of the MLI and the denial of treaty benefits.
On
appeal, the Tribunal undertook an extensive examination of the constitutional
and statutory framework governing the application of tax treaties in India.
Relying heavily on the Supreme Court judgment in Assessing Officer v. Nestlé
SA (458 ITR 756), the Tribunal held that although both the India–Ireland
DTAA and the MLI had been separately notified, the consequential
modification of the DTAA by the MLI had not been notified under Section 90(1)
of the Income-tax Act, 1961. In the absence of such specific notification,
Articles 6 and 7 of the MLI could not be read into or applied to the
India–Ireland DTAA.
The
Tribunal rejected the Revenue’s reliance on the “synthesised text” of the DTAA
as modified by the MLI, holding that such text is merely an explanatory aid
with no independent legal force. It was observed that treaty modifications
affecting rights and liabilities of taxpayers can be enforced domestically only
through a conscious and express act of incorporation by way of notification
under Section 90(1).
Having
held that the MLI was inapplicable, the Tribunal concluded that the denial of
treaty benefits on the basis of the Principal Purpose Test was unsustainable.
Without prejudice, the Tribunal also noted that, on facts, the incorporation of
the assessees in Ireland was supported by strong commercial rationale,
consistent with globally accepted aircraft leasing practices, and did not
constitute treaty abuse.
Accordingly,
the Tribunal held that the lease rentals could not be taxed in India by
invoking the MLI, and the assessments denying DTAA benefits were not
sustainable in law. The appeals were allowed in favour of the assessees
Source- https://itat.gov.in/public/files/upload/1755685447-a2gpJx-1-TO.pdf
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