It was held by ITAT, Mumbai that computer software when put into a media and sold becomes goods like any other audio cassette or painting on canvass or book. Accordingly, the amount paid by taxpayer towards purchase of such computer software from a Singapore company cannot be treated as royalty as per the India-Singapore tax treaty (tax treaty).
The Supreme Court has stated that the criminal liability of a corporation would arise when an offence is committed in relation to the business of the corporation by a person or body of persons in control of its affairs. In such circumstances, it is necessary to ascertain the degree and control of the person or body of persons, such that the corporation may be said to think and act through the person or the body of persons. The Supreme Court judgment has set aside the decision of the Bombay High Court that quashed the criminal complaint filed by Iridium India Telecom Limited against Motorola Incorporated.
The Bangalore Income Tax Appellate Tribunal (Tribunal) has ruled on the transfer pricing aspects of management services fees paid by the Taxpayer to its regional headquarter company (associated enterprise or AE). The Tribunal upheld the contention of the Transfer Pricing Officer (TPO) that the Taxpayer has not proved the commensurate benefits received for the service fees paid to the AE and, hence, ruled that the payment of the management services was not justified under arm’s length principles.
The ITL permits deduction of expenditure representing statutory liabilities like sales tax etc., only upon actual payment. Under a specific provision of the ITL, if any allowance or deduction is made by way of expenditure, loss or trading liability in previous tax years and, subsequently, the taxpayer is in receipt of the amount of the loss or expenditure or certain benefit accrues to the taxpayer by way of remission or cessation of trading liability, the same is chargeable to tax as business income.
Once the payment of ‘off-the shelf software’ held not to be chargeable to tax as a royalty on the basis of the certificate obtained from a chartered accountant, no penalty and interest can be levied on the grounds that the assessee did not take prior approval of the assessing officer under section 195(2) of the Act.
It was held that the offshore supply of equipment, even on a CIF basis, under a composite contract is not taxable in India.
In a recent decision, the Federal Court of Australia (“the Court”), in the case of SNF (Australia) Pty. Ltd. v. Commissioner of Taxation [2010] FCA 635 ,ruled in favour of the taxpayer acceding to the approach of direct transactional (price) comparisons (i.e., use of Comparable Uncontrolled Price Method) adopted by the taxpayer, and rejecting the profit-based analysis (using Transaction Net Margin Method) suggested by the Commissioner of Taxation (“the Commissioner”) for benchmarking the taxpayer’s purchase (of polyacrylamide products or “the products”) transactions with its overseas affiliates. The Court also held that sustained losses do not necessarily imply that the transfer prices are not at arm’s length. In this context, the Court also observed that parent company support provided under a market penetration strategy might permit a loss-making company to continue operations over an extended period without exiting the market. After Roche Products Pty Ltd. v. Commissioner of Taxation [2008] 70 ATR 703 , this judgement is only the second substantive transfer pricing decision to have been pronounced by an Australian Court or Tribunal.
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