Facts of the Case

The assessee, AAPC Singapore Pte. Ltd., a company incorporated in Singapore, entered into franchise agreements with Indian entities to sub-license hotel brand names to third-party hotels operating in India.

The assessee offered certain receipts such as franchise and license fees as royalty income in India. However, receipts arising from reservation services, marketing services and loyalty programme services were not offered to tax in India on the ground that such receipts were neither royalty nor fees for technical services under the Income-tax Act or the India–Singapore Double Taxation Avoidance Agreement (DTAA).

The Assessing Officer held that the payments received for these services were connected with the use or right to use trademarks and therefore treated them as royalty / fees for technical services taxable in India. The Dispute Resolution Panel (DRP) affirmed the order of the Assessing Officer.

Issues Involved

  1. Whether receipts from reservation services, marketing services and loyalty programme services could be treated as royalty under Section 9(1)(vi) of the Income-tax Act.
  2. Whether such receipts could alternatively be taxed as fees for technical services under Section 9(1)(vii).
  3. Whether these receipts were taxable in India under Article 12 of the India–Singapore DTAA. 

Petitioner’s Arguments

  • The receipts from reservation services, marketing services and loyalty programme were independent service activities and were not consideration for the use of any trademark or intellectual property.
  • There was no transfer of right to use any trademark, equipment, design, or process in relation to these services.
  • These services did not involve any technical knowledge, skill, or process being made available to the Indian entities.
  • Accordingly, such receipts could not be characterized as royalty or fees for technical services either under the Income-tax Act or under the India–Singapore DTAA.

Respondent’s Arguments

  • The services were intrinsically connected with the use of the hotel brand and trademarks licensed to Indian hotels.
  • Payments received for reservation systems, marketing support and loyalty programmes facilitated the commercial exploitation of the brand.
  • Therefore, the receipts should be treated as royalty income or alternatively as fees for technical services under Section 9 and Article 12 of the DTAA. 

Court Order / Findings

  • In the assessee’s own case for an earlier assessment year on similar facts, it had been held that there was no transfer of right to use any industrial, commercial, or scientific equipment.
  • The services relating to reservation, marketing and loyalty programmes were support services and were not consideration for the use of trademarks or intellectual property.
  • Since there was no transfer of any right to use intellectual property, the receipts could not be characterized as royalty.
  • The services also did not satisfy the requirements for fees for technical services under the Act or the DTAA. 

Important Clarification

  • Mere provision of reservation systems, marketing support, or loyalty programme services does not automatically result in royalty income.
  • For a payment to qualify as royalty, there must be transfer of a right to use intellectual property, equipment, or similar rights.
  • If services are only facilitative or supportive in nature, they cannot be treated as royalty under Section 9(1)(vi) or under Article 12 of the DTAA.

Sections Involved

  • Section 9(1)(vi) – Income deemed to accrue or arise in India (Royalty)
  • Section 9(1)(vii) – Fees for Technical Services
  • Article 12 – India–Singapore DTAA 

Link to download the order - https://itat.gov.in/public/files/upload/1704093835-ITA%20581%20-%20AAPC%20Singapore%20Pte.%20Ltd.pdf

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