2010 (10) TMI 185 - AT - Income Tax

DTAA - Demand - The payment for purchase of Shrink Wrap Software is payment of Royalty is not correct under section 9(1)(vi) of the Income tax Act, 1961 TDS on Royalty u/s 195(2) - The claim of the assessee was that Off the Shelf software purchased by the assessee did not have tax implication in India in asmuch as the assessee has not purchased any copyrights in the software but only a copyright product In the light of Motorala Inc v. DCIT, 95 ITD SB 269 and In the recent case of GE India Technology Centre Pvt Ltd v. CIT, 2010 -TMI - 77380 (SC), Hon ble Supreme Court Accordingly it was held that unless the amount remitted by the assessee constitute taxability in India in the hands of recipients, the tax withholding liability u/s.195 cannot arise Appeal is dismissed

Summary

Issues:
1. Correctness of CIT(A)'s order on tax withholding demand for purchase of software under section 195 of the Income Tax Act, 1961.

Analysis:
1. The appeal concerns the correctness of the CIT(A)'s order on tax withholding demand raised on the assessee under section 201 r.w.s. 195 of the Income Tax Act, 1961, for the assessment year 2006-07. The primary contention revolved around whether the payment for the purchase of software constitutes "Royalty" under section 9(1)(vi) of the Income Tax Act and within the meaning of the term "Royalty" under the Indo USA DTAA.

2. The Assessing Officer required the assessee to justify the remittance made for the purchase of software without deduction of tax at source. The Assessing Officer argued that the payment made by the assessee was in the nature of "Royalty" since it was for a license to use the software, thus taxable under section 9(1)(vi) of the Income Tax Act. Consequently, the Assessing Officer raised a demand under section 201(1A) for non-deduction of tax at source under section 195(1) of the Act.

3. The CIT(A) observed that the payment made for "off the shelf software packages" did not attract tax liability in India based on various decisions by the Tribunal and the Special Bench in similar cases. The CIT(A) ruled in favor of the assessee, quashing the demand raised under section 201(1A) r.w.s. 195. The Assessing Officer challenged this decision, leading to the appeal.

4. The Tribunal noted that the issue was settled in favor of the assessee by numerous Tribunal decisions. It emphasized the distinction between a copyright article and copyright per se, stating that payment for a copyright article does not constitute payment of copyright or "Royalty." The Tribunal also highlighted that tax deduction liability at source is vicarious and can only be invoked when the primary liability of the recipient in India exists.

5. Referring to a recent Supreme Court case, the Tribunal reiterated that tax withholding liability under section 195 cannot arise unless the amount remitted by the assessee is taxable in India in the hands of the recipients. The Tribunal upheld the CIT(A)'s conclusions based on the Supreme Court's decision and declined to interfere with the ruling, ultimately dismissing the revenue's appeal.