2012 (2) TMI 555 - AT - Income Tax

Nature of payment - payments were made to six non-resident entities - purely on account of services or nature of royalty - Held that - As transactions in respect of which the impugned payments were made was purely on account of services and there is no transfer of right to use the goods. In the result, it is held that the Assessing Officer was not justified in treating the payment as royalty and invoking the provisions of sec. 195. See CIT Vs. Godavari Devi Saraf Smt 1977 (9) TMI 24 - BOMBAY High Court

Summary

Issues:
Revenue's appeal against CIT(A) order on nature of payments made to non-resident entities.

Analysis:
The Revenue appealed against the CIT(A) order regarding payments made to non-resident entities, arguing that the transactions were in the nature of royalty. The Revenue contended that the Delhi Special Bench's decision in a similar case was not considered by the Delhi High Court in its ruling. However, the Revenue conceded that the Delhi High Court had already decided a similar issue in favor of the assessee.

The CIT(A) had determined that the payments made by the appellant to foreign parties were for services and not royalty. The Assessing Officer treated the payments as royalty for the use of equipment, resulting in tax demands and interest. The appellant argued that the equipment used was not under its exclusive control, negating the characterization of the payments as royalty. The CIT(A) analyzed the definitions of royalty under the Income Tax Act and relevant case laws to support the conclusion that the payments were for services, not for the use of equipment.

The Tribunal found that the Delhi High Court's decision was the only one on the issue, requiring adherence. Citing a Bombay High Court case, the Tribunal upheld the CIT(A)'s order, dismissing the Revenue's appeals. The Tribunal concluded that the transactions were purely for services, not involving the transfer of rights to use goods, and therefore, the payments were not to be treated as royalty. As a result, the demands raised by the Assessing Officer under section 195 were canceled for both assessment years.

In summary, the Tribunal's decision was based on the interpretation of the nature of payments made to non-resident entities, distinguishing between services and royalty. The Tribunal relied on legal definitions and precedents to support the conclusion that the payments were for services, following the Delhi High Court's ruling on a similar issue. The Tribunal dismissed the Revenue's appeals, confirming the CIT(A)'s order and canceling the tax demands raised by the Assessing Officer.