2016 (11) TMI 658 - AT - Income Tax

Reopening of assessment - Held that - reopening of assessment in the present case is based on the stand of assessing authority for other assessment years, and thus there is enough cause and justification for invoking Sec. 147/148 of the Act and following the judgment of Hon ble Supreme Court in the case of Rajesh Jhaveri Stock Brokers Pvt. Ltd., (2007 (5) TMI 197 - SUPREME Court ) initiation of proceedings u/s 147/148 of the Act are upheld. Thus, on this aspect also assessee fails.

Summary

Issues Involved:
1. Taxability of subscription fee received from Indian customers.
2. Reopening of assessment under Sections 147/148 of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Taxability of Subscription Fee Received from Indian Customers:

The primary issue across all appeals pertains to whether the subscription fees received by the assessee-company from Indian customers should be taxed as 'Royalty' under Section 9(1)(vi) of the Income Tax Act, 1961, and Article 12 of the Double Taxation Avoidance Agreement (DTAA) between India and Ireland. The assessee, a tax resident of Ireland, argued that the receipts were not taxable in India due to the absence of a fixed place of business or permanent establishment in India. However, the Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] contended that the subscription fees were indeed 'Royalty' and thus taxable in India.

The Tribunal upheld the Revenue's stand by referring to its earlier decision for Assessment Year 2007-08, which relied on the Karnataka High Court's judgment in CIT (International Taxation) v. Wipro Ltd. The Karnataka High Court had ruled that payments made by Wipro Limited to Gartner for online use of the database were for a license to use the database, thus constituting 'Royalty' and liable for tax deduction at source under Section 195 of the Act. The Tribunal found no reason to deviate from this precedent, despite the assessee's reference to conflicting judgments from other High Courts, such as the Delhi High Court in Infrasoft Ltd. and various Tribunal decisions favoring the assessee.

2. Reopening of Assessment under Sections 147/148 of the Income Tax Act, 1961:

For Assessment Years 2003-04 and 2005-06, the assessee challenged the initiation of proceedings under Sections 147/148. The assessments were reopened based on the AO's stand in other assessment years. The assessee's primary contention was that no assessment was made before reopening, only an intimation under Section 143(1) was issued. However, the Tribunal upheld the reopening of assessments, citing sufficient cause and justification based on the AO's consistent stand in other years. The Tribunal referenced the Supreme Court's judgment in Rajesh Jhaveri Stock Brokers Pvt. Ltd., which supports the initiation of proceedings under Sections 147/148 when there is a justifiable reason.

Conclusion:

The Tribunal dismissed the appeals, upholding the Revenue's position that the subscription fees received by the assessee from Indian customers are taxable as 'Royalty' and affirming the validity of reopening the assessments under Sections 147/148. The decision emphasized judicial consistency and adherence to higher court rulings specific to the transaction in question.