2014 (10) TMI 988 - AT - Income Tax

Royalty payment - capital expenditure - whether transaction between Shri Tarun Mohan, Prop of M/s Phoneytunes.com and the company whereby 2% of sale consideration has been paid as royalty, is a sham transaction? - Held that - Phoneytunes.com had invented technology of creating ring tones and it can be down loaded by individual mobile user and for this invention the company has agreed to pay a royalty @ 2%. The Revenue has rejected this contention in the absence of any documentary evidence. It has to be appreciated that in case of intellectual property, it is not necessary that there would be a documentary evidence because invention is a technology and stored in the computer. The last allegation of revenue is that this is a colourable device used by the assessee to reduce the profits. We have already seen that this is not a colorable device but a pure and simple transaction through which the business of phoneytunes.com have been sold to the assessee-company and the assessee-company has agreed further to give royalty @ 2%. Secondly it is very important that the assessee-company and Tarun Mohan have duly paid the taxes on full amounts received against royalty and have not been set off against any losses etc. It is absolutely clear that the assessee-company has paid royalty for the particular invention which belonged to phoneytunes.com and therefore in our opinion, the claim for payment of royalty deserves to be allowed - Decided in favour of assessee.

Summary

Issues Involved:
1. Justification of the transaction between the appellant and the company regarding the payment of 2% of the sale consideration as royalty.
2. Confirmation of the addition of Rs. 20,31,774/- as royalty paid to the proprietor of M/s Phoneytunes.com.
3. Treatment of the royalty payment as capital expenditure.

Issue-Wise Detailed Analysis:

1. Justification of the Transaction:
The appellant argued that the transaction between the proprietor of M/s Phoneytunes.com and the company, which involved paying 2% of the sale consideration as royalty, was legitimate. The Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] considered the transaction a sham, citing that the company did not have any product with a copyright or patent, and the brand value was not established. The appellant countered that Phoneytunes.com was a registered website under the Copyright Act/Trade Marks Act and had established itself as a premier provider for mobile VAS services. The ITAT found that the technology developed by Phoneytunes.com for creating ring tones was indeed an intellectual property right (IPR), and thus the transaction was justified.

2. Confirmation of the Addition of Rs. 20,31,774/-:
The AO and CIT(A) confirmed the addition of Rs. 20,31,774/- on the grounds that Phoneytunes.com did not have any exclusive product warranting royalty payments. The AO also noted that the transaction appeared to be a tax avoidance scheme. The appellant argued that the royalty was paid for the right to use the brand name and technology developed by Phoneytunes.com, which had significant market recognition. The ITAT observed that the business of Phoneytunes.com was sold to the appellant company, which included technology for creating ring tones, and the royalty payments were genuine business expenses. Additionally, the royalty income was duly taxed in the hands of the recipient, Tarun Mohan, at the highest tax slab, negating the tax avoidance argument.

3. Treatment of Royalty Payment as Capital Expenditure:
The AO treated the royalty payment as capital expenditure, claiming it provided an enduring benefit to the appellant company. The appellant contended that the payment was for the right to use the brand name, not for acquiring any asset, and thus should be treated as a business expenditure. The ITAT agreed with the appellant, stating that the royalty payment was for the use of intellectual property and not for acquiring a capital asset. Therefore, it should be treated as a revenue expenditure.

Conclusion:
The ITAT concluded that the royalty payment was a legitimate business expense for the use of intellectual property developed by Phoneytunes.com. The transaction was not a sham, and there was no tax avoidance involved as the royalty income was taxed at the highest slab. The royalty payment should be treated as a revenue expenditure, not capital expenditure. Consequently, the appeals were allowed, and the AO was directed to allow the claim for royalty.

Order:
The ITAT set aside the order of the CIT(A) and directed the AO to allow the claim for royalty. All the appeals of the assessee were allowed. The order was pronounced in the open court on 28.10.2014.