Saturday, 20 May 2017

ITAT : Internal cost' of employing individual constitutes FTS, excludes deputation cost towards travel/insurance

Mumbai ITAT rules that amount received by assessee ( a US company engaged in grading and certification of diamonds) on account of reimbursement of travel expenses, group health insurance and other incidental expenses in connection with the assignment under training and technical service Agreement (‘TTA’), not FTS for AYs 2009-10 and 2011-12; Assessee had entered into TTA for training the employees of the Indian group company and providing technical services for the implementation of grading policies, procedures and processes, further separate debit notes were raised for training & technical services and reimbursement;  Rejects Revenue’s stand that the total amount received by assessee including reimbursement would constitute FTS;   Referring to the TTA, ITAT notes that assessee was entitled to receive by way of fee only the amount incurred by towards cost to ‘employ’ individuals plus mark-up of 6.5%, remarks that “the expression cost to ‘employ’ individuals is different from the expression cost incurred to ‘depute’ a person”; Rules that the cost of employment would include only internal costs incurred by organisation to employ individual, whereas any cost incurred over and above that to depute the individual for a particular assignment (i.e. travel, insurance etc.), would be external cost, not includible as FTS, relies on SC ruling in A.P. Moller Maersk A/S:ITAT

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