msvk.in

86. Definitions for safe harbour rules for international transactions.— For the purposes of this rule and rules 87

to 93, —

(a) —accountant__

(i) means an accountant referred to in section 515(3)(b), who fulfils the following conditions: —

(A) if he is pursuing the profession of accountancy individually or is a valuer then —

(I) he has professional experience of not less than ten years; and

(II) his annual receipt in the year preceding the year in which cost certification is undertaken,

from the exercise of profession, exceeds fifty lakh rupees;

(B) if he is a member or partner in any entity engaged in rendering accountancy or valuation services

then, the annual receipt of the entity in the year preceding the year in which cost certification

is undertaken exceeds three crore rupees;

(ii) includes any person recognised for undertaking cost certification by the government of the country,

where the associated enterprise is registered or incorporated or any of its agencies, who fulfils

the following conditions: —

(A) the condition referred to in clause (a)(i)(A) and (B); and

(B) if he is a member or partner in any entity engaged in rendering accountancy or valuation

services then, the entity or its affiliates have presence in more than two countries;

(b) ?contract research and development services wholly or partly relating to software development? means the

following: —

(i) research and development producing new theorems and algorithms in the field of theoretical

computer science; or

(ii) development of information technology at the level of operating systems, programming languages,

data management, communications software and software development tools; or

(iii) development of internet technology; or

(iv) research into methods of designing, developing, deploying or maintaining software; or

(v) software development that produces advances in generic approaches for capturing, transmitting,

storing, retrieving, manipulating or displaying information; or

(vi) experimental development aimed at filling technology knowledge gaps, as may be necessary to

develop a software programme or system; or

(vii) research and development on software tools or technologies in specialised areas of computing

(image processing, geographic data presentation, character recognition, artificial intelligence and such other

areas); or

(viii) upgradation of existing products, where source code has been made available by the principal,

except where the source code has been made available to carry out routine functions like debugging of the

software;

(i) engine and engine parts, including piston and piston rings, engine valves and parts cooling systems

and parts and power train components; or

(ii) transmission and steering parts, including gears, wheels, steering systems, axles and clutches; or

(iii) suspension and braking parts, including brake and brake assemblies, brake linings, shock absorbers

and leaf springs; or

(iv) lithium-ion batteries for use in electric or hybrid electric vehicles;

(d) ?corporate guarantee? means explicit corporate guarantee extended by a company to its wholly owned

subsidiary being a non-resident in respect of any short-term or long-term borrowing, but does not include letter of

comfort, implicit corporate guarantee, performance guarantee or any other guarantee of similar nature;

(e) ?data centre? means a dedicated secure space within a building or centralised location, where computing and

networking equipment is concentrated for the purpose of collecting, storing, processing, distributing or allowing

access to large amounts of data;

(f) ?data centre services? means the services provided by a data centre through the use of physical infrastructure

including land, buildings, mechanical electrical power equipment, cooling system, security and information

1604 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(i)]

technology infrastructure including servers, computers, storage systems, operating systems, security solutions,

network and associated software platforms, networking and other equipment, human resource in India;

(g) ?generic pharmaceutical drug? means a drug that is comparable to a drug already approved by the regulatory

authority in dosage form, strength, route of administration, quality and performance characteristics and intended use;

(h) ?information technology enabled services? means any of the following business process outsourcing services

provided mainly with the assistance or use of information technology: —

(i) back office operations; or

(ii) call centres or contact centre services; or

(iii) data processing and data mining; or

(iv) insurance claim processing; or

(v) legal databases; or

(vi) creation and maintenance of medical transcription excluding medical advice; or

(vii) translation services; or

(viii) payroll; or

(ix) remote maintenance or recovery; or

(x) revenue accounting; or

(xi) support centres; or

(xii) website services; or

(xiii) data search integration and analysis; or

(xiv) remote education excluding education content development; or

(xv) clinical database management services excluding clinical trials,

but does not include any research and development services whether or not in the nature of contract research and

development services.

(i) ?intra-group loan? means loan advanced to an associated enterprise being a non-resident, where the loan —

(i) is not advanced by an enterprise, being a financial company including a bank or a financial

institution or an enterprise engaged in lending or borrowing in the normal course of business; and

(ii) does not include credit line or any other loan facility which has no fixed term for repayment;

(j) ?knowledge process outsourcing services? means any of the following business process outsourcing services

provided mainly with the assistance or use of information technology requiring application of knowledge and

advanced analytical and technical skills: —

(i) geographic information system; or

(ii) human resources services; or

(iii) engineering and design services; or

(iv) animation or content development and management; or

[??? II—??? ? 3(i)] ???? ?? ??????? : ??????? 1605

(v) business analytics; or

(vi) financial analytics; or

(vii) market research,

but does not include any research and development services, whether or not in the nature of contract research and

development services;

(k) ?low value-adding intra-group services? means services that are performed by one or more members of a

multinational enterprise group on behalf of one or more other members of the same multinational enterprise group

and which —

(i) are in the nature of support services;

(ii) are not part of the core business of the multinational enterprise group, that is, such services neither

constitute the profit-earning activities nor contribute to the economically significant activities of the

multinational enterprise group;

(iii) are not in the nature of shareholder services or duplicate services;

(iv) neither require the use of unique and valuable intangibles nor lead to the creation of unique and

valuable intangibles;

(v) neither involve the assumption or control of significant risk by the service provider nor give rise to

the creation of significant risk for the service provider; and

(vi) do not have reliable external comparable services that can be used for determining their arm's length

price,

but does not include the following services: —

(A) research and development services;

(B) manufacturing and production services;

(D) knowledge process outsourcing services;

(E) business process outsourcing services;

(F) purchasing activities of raw materials or other materials that are used in the manufacturing or

production process;

(G) sales, marketing and distribution activities;

(H) financial transactions;

(I) extraction, exploration, or processing of natural resources; and

(J) insurance and reinsurance;

(l) ?non-core auto components? means auto components other than core auto components;

(m) ?no tax or low tax country or territory? means a country or territory in which the maximum rate of incometax

is less than 15%;

(n) ?operating expense? means —

1606 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(i)]

(i) the costs incurred in the tax year by the assessee in relation to the international transaction during

the course of its normal operations including costs relating to Employee Stock Option Plan or similar stockbased

compensation provided for by the associated enterprises of the assessee to the employees of the

assessee;

(ii) reimbursement to associated enterprises of expenses incurred by the associated enterprises on

behalf of the assessee at cost;

(iii) amounts recovered from associated enterprises on account of expenses incurred by the assessee on

behalf of those associated enterprises and which relate to normal operations of the assessee at cost; and

(iv) depreciation and amortisation expenses relating to the assets used by the assessee,

but does not include —

(A) interest expense;

(B) provision for unascertained liabilities;

(D) loss arising on account of foreign currency fluctuations;

(E) extraordinary expenses;

(F) loss on transfer of assets or investments other than assets, on which depreciation is

included in the operating expense;

(G) expense on account of income-tax; and

(H) other expenses not relating to normal operations of the assessee;

(o) ?operating revenue? means the revenue earned by the assessee in the tax year in relation to the international

transaction during the course of its normal operations including costs relating to Employee Stock Option Plan or

similar stock-based compensation provided for by the associated enterprises of the assessee to the employees of the

assessee, but does not include —

(i) interest income;

(ii) income arising on account of foreign currency fluctuations;

(iii) income on transfer of assets or investments other than assets, on which depreciation is included in

the operating expense;

(iv) refunds relating to income-tax;

(v) provisions written back;

(vi) extraordinary incomes; and

(vii) other incomes not relating to normal operations of the assessee;

(p) ?operating profit margin? in relation to operating expense means the ratio of operating profit, being the

operating revenue in excess of operating expense, to the operating expense expressed in terms of percentage;

(q) ?relevant tax year? means the tax year for which the option for safe harbour is validly exercised;

(r) ?software development services? mean —

(i) business application software and information system development using known methods and

existing software tools; or

[??? II—??? ? 3(i)] ???? ?? ??????? : ??????? 1607

(ii) ancillary or support services for existing systems; or

(iii) converting or translating computer languages; or

(iv) adding user functionality to application programmes; or

(v) debugging of systems; or

(vi) adaptation of existing software; or

(vii) preparation of user documentation;

but does not include any research and development services whether or not in the nature of contract research and

development services.