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2018 (5) TMI 1957 - AT - Income TaxRoyalty receipt - payment received by the assessee for network access and related services for the right of access and use of software - acquisition of copyrighted software OR copyright over such software - taxable @ 10% as per the DTAA with the Netherlands - P.E. in India - business income taxed in India - HELD THAT - As decided in assessee s own case 2017 (4) TMI 763 - ITAT MUMBAI none of the conditions mentioned in section 14 of the Copyright Act is applicable as held by the learned CIT(A); and is also is evident from the terms of MSA because no such rights has been given by the assessee to the IT Service providers. Further by making use or having access to the computer programs embedded in the software it cannot be held that either WIPRO/IBM are using the process that has gone into the software or that they have acquired any rights in relation to the process as such. The software continues to be owned by the assessee and what WIPRO/IBM is getting mere access to the software. The source code embedded in the software has not been imparted to them. Hence there is no use or right to use of any process as held by the learned AO. Hence the finding of the learned CIT(A) that the payment in question cannot be reckoned as royalty is factually and legally correct and the same is upheld. Thus we hold that for all the years the payments received by the assessee from WIPRO/IBM in pursuance to the MSA cannot be treated as royalty under Article 12(4) of the India-Netherland DTAA. Thus the matter is decided in favour of the assessee
Issues Involved:
1. Assessment of total income. 2. Reimbursements as income. 3. Payments for network access to copyrighted software as royalty. 4. Payments for IT support services as Fees for Technical Services (FTS) and royalty. 5. Incorrect computation of interest under sections 234A and 234B. 6. Initiation of penalty proceedings under section 271(1)(c). Detailed Analysis: 1. Assessment of Total Income: The appellant contested the assessment of total income at ?58,69,42,743 against the returned income of ?66,870. The Assessing Officer (AO) made additions on account of income from software services taxable as royalty and income from IT support services taxable as Fees for Technical Services (FTS). 2. Reimbursements as Income: The appellant argued that the payments received were reimbursements for cost allocation without markup and should not constitute 'income' under section 2(24) of the Income Tax Act. This issue was not separately adjudicated as it was considered general in nature. 3. Payments for Network Access to Copyrighted Software as Royalty: The AO held that ?25,21,84,024 received for providing network access to use copyrighted software qualifies as royalty under section 9(1)(vi) of the Act and Article 12 of the India-Netherlands DTAA. The appellant contended that the payments were for the use of a copyrighted article, not the copyright itself, and thus should not be taxed as royalty. The Tribunal referred to previous decisions in the appellant's own case for the assessment years 2006-07, 2007-08, and 2008-09, where it was held that such payments do not constitute royalty. The Tribunal followed these precedents and decided in favor of the appellant, allowing Grounds No. 3 and 4 of the appeal. 4. Payments for IT Support Services as Fees for Technical Services (FTS) and Royalty: The AO held that ?33,46,91,849 received for IT support services constitutes FTS under the Act and Article 12 of the India-Netherlands DTAA. The appellant argued that IT support services do not make available any technical knowledge, skill, or processes and thus should not be taxed as FTS. The Tribunal referred to its decisions in the appellant's own case for the assessment years 2009-10 and 2010-11, where it was held that such payments do not qualify as FTS or royalty. The Tribunal followed these precedents and allowed Grounds No. 5, 6, and 7 of the appeal. 5. Incorrect Computation of Interest under Sections 234A and 234B: The appellant contested the computation of interest under sections 234A and 234B, amounting to ?62,06,880 and ?2,24,99,940 respectively. The Tribunal did not separately adjudicate these grounds as they were not pressed by the appellant. 6. Initiation of Penalty Proceedings under Section 271(1)(c): The appellant challenged the initiation of penalty proceedings on the grounds of filing inaccurate particulars and concealing income. The Tribunal did not separately adjudicate this issue as it was considered general in nature. Conclusion: The Tribunal allowed the appeal in part, deciding in favor of the appellant on the issues of royalty and FTS, and dismissing the grounds related to interest computation and penalty proceedings as not pressed. The assessment order was modified accordingly.
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