Case Law Details
Symantec Asia Pacific Pte Ltd Vs DCIT (ITAT Delhi)
Departmental authorities have accepted the factual position that the assessee does not have any Permanent Establishment (PE) in India. Thus, the issue which requires examination is whether the amount received by assessee towards sale of software products and provision of maintenance services would be taxable as royalty under Article 12 of India-Singapore DTAA. It is a fact on record that both the Assessing Officer as well as learned DRP have relied upon their earlier decision in assessee’s own case in assessment years 2013-14 and 2014-15 to hold that the amount received by assessee from the Indian customers is in the nature of royalty. However, While deciding the issue in assessment year 2013-14, the Tribunal in ITA No.1000/Del/2017 dated 31.08.2020 has held that the amount received by assessee from the customers in India does not fit into the definition of royalty as provided under Article 12 in India-Singapore DTAA. Identical view was expressed by the co-ordinate Bench while deciding assessee’s appeal in assessment year 2014-15 vide ITA No.3013/Del/2017 dated 15.04.2021. It is a matter of record that appeals filed by the Revenue against the aforesaid orders of Tribunal have been dismissed by the Hon’ble jurisdictional High Court. It is relevant to observe, the Hon’ble jurisdictional High Court dismissed the appeals of the Revenue after recording the admission of the learned counsel appearing for the Revenue that the issue is covered by the decision of the Hon’ble Supreme Court in case of Engineering Analysis Centre of Excellence Pvt. Ltd. vs. CIT in Civil Appeal No.8733 and 8734/2018. Thus, considering the fact that the issue in dispute is squarely covered by the decisions of the Tribunal and the Hon’ble jurisdictional High Court in assessee’s own case, as discussed above, we delete the addition made by the Assessing Officer.
FULL TEXT OF THE ORDER OF ITAT DELHI
Captioned appeal has been filed by the assessee assailing the final assessment order dated 30.05.2019 passed under Section 143(3) read with section 144C(13) of the Income-Tax Act, 1961 pertaining to assessment year 2016-17 in pursuance to the directions of learned Dispute Resolution Panel (DRP).
2. The core issue arising for consideration in the present appeal is, whether the consideration received from sale of software products is taxable as royalty under the provisions of India-Singapore Double Taxation Avoidance Agreement (DTAA).
3. Briefly, the facts are, the assessee is a non-resident corporate entity incorporated under the Laws of Singapore and is a tax resident of that country. For the assessment year under dispute, assessee filed its return of income on 30.09.2016 declaring nil income and claiming refund of Rs.21,72,75,550 on account of tax deducted at source (TDS).
4. In course of assessment proceedings, the Assessing Officer called upon the assessee to furnish various details, including, the Revenue earned from India. After perusing the details furnished by the assessee including the distributor agreement, general and administrative services agreement, license agreement etc., the Assessing Officer was of the view that the consideration receive by assessee from sale of software as well as maintenance and support services to customers in India either directly or through authorized distributors, resellers or service providers in India is in the nature of royalty, both under Section 9(1)(vi) of the Act as well as under the provisions of Article 12 of India-Singapore DTAA. Thus, based on such conclusion, the Assessing Officer held that the consideration received from sale of software and provision of services amounting to Rs.217,24,54,383 is taxable in India as royalty @ 10% on gross basis as per provisions of India-Singapore DTAA. Accordingly, he proposed a draft assessment order. Against the draft assessment order, assessee raised objections before learned DRP. Relying upon their decision in assessee’s own case in assessment years 2013-14 and 2014-15, learned DRP upheld the decision of the Assessing Officer by rejecting the objection of assessee.
5. Before us, learned counsel appearing for the assessee submitted, the issue in dispute is squarely covered in favour of assessee by the decisions of the Tribunal and Hon’ble jurisdictional High Court in assessment years 2013-14 and 2014-15. In this regard, he drew our attention to the respective orders of the Tribunal and Hon’ble jurisdictional High Court.
6. The learned Departmental Representative fairly submitted that issue is covered by the decisions of the Hon’ble jurisdictional High Court and the Tribunal in earlier assessment year. However, she dutifully relied upon the observations of the Assessing Officer and learned DRP.
7. We have considered rival submissions and perused material on
8. As could be seen from facts on record, the departmental authorities have accepted the factual position that the assessee does not have any Permanent Establishment (PE) in India. Thus, the issue which requires examination is whether the amount received by assessee towards sale of software products and provision of maintenance services would be taxable as royalty under Article 12 of India-Singapore DTAA. It is a fact on record that both the Assessing Officer as well as learned DRP have relied upon their earlier decision in assessee’s own case in assessment years 2013-14 and 2014-15 to hold that the amount received by assessee from the Indian customers is in the nature of royalty. However, While deciding the issue in assessment year 2013-14, the Tribunal in ITA No.1000/Del/2017 dated 31.08.2020 has held that the amount received by assessee from the customers in India does not fit into the definition of royalty as provided under Article 12 in India-Singapore DTAA. Identical view was expressed by the co-ordinate Bench while deciding assessee’s appeal in assessment year 2014-15 vide ITA No.3013/Del/2017 dated 15.04.2021. It is a matter of record that appeals filed by the Revenue against the aforesaid orders of Tribunal have been dismissed by the Hon’ble jurisdictional High Court. It is relevant to observe, the Hon’ble jurisdictional High Court dismissed the appeals of the Revenue after recording the admission of the learned counsel appearing for the Revenue that the issue is covered by the decision of the Hon’ble Supreme Court in case of Engineering Analysis Centre of Excellence Pvt. Ltd. vs. CIT in Civil Appeal No.8733 and 8734/2018. Thus, considering the fact that the issue in dispute is squarely covered by the decisions of the Tribunal and the Hon’ble jurisdictional High Court in assessee’s own case, as discussed above, we delete the addition made by the Assessing Officer. Ground No. 1 is allowed.
9. In view of our decisions in ground no. 1, ground no. 2 raised on without prejudice basis, having become infructuous, is dismissed.
10. In the result, appeal is partly allowed, as indicated above.
Order pronounced in the open court on 26th September, 2022.
