Assessee, who merely acted as dealer in sale of Microsoft products, not liable to deduct tax

High Court of Delhi

CIT Vs. Dynamic Vertical Software India Pvt. Ltd.

ITA No. 1692 of 2010

Decided on: 22 February 2011

 Judgment

1. Although, two issues are raised in this appeal, the only issue which is pressed is the dis allowance of expenses incurred by the assessee under section 40(a)(i) of the Income Tax Act, on the ground that in the said expenses no tax at source was deducted. The Assessing Officer treated the payment made by the assessee to Microsoft as royalty and, therefore, came to the conclusion that tax at source was to be deducted thereupon and on failure to do so, the respondent’s expenses shall be disallowed.

2. The CIT(A) confirmed this order of the Assessing Officer, however, the ITAT has deleted the addition. After going through the order of the authorities below, whereby, the ITAT dealt with the transaction between the assessee examined the true nature of it.

3. What is found, as a matter of fact, is that the assessee has been purchasing the software from Microsoft and sold it further in Indian market. By no stretch of imagination it would be termed as “royalty”.

4. The assessee, in fact, acted as a dealer of Microsft as is evident. Under these circumstances, section 40(a)(i) of the Income Tax Act has no application at all. We find that no question of law arises for consideration. The present appeal, is accordingly, dismissed.

NF