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2016 (12) TMI 1338 - AT - Income TaxTDS u/s 195 - taxability of the payment made by the assessee to Intelsat Corporation US and Intelsat Global Sales and Marketing Limited, UK for availing transponder facility in pursuance of Service Agreement read with Service orders - P.E. in India - busniss connection - Held that - The payment made by the assessee to Intelsat is not taxable as royalty in India and, therefore, assessee was not required to deduct TDS or withhold any tax on such payments. This proposition has been upheld by Hon ble Supreme Court in the case of GE Technology Centre 2010 (9) TMI 7 - SUPREME COURT OF INDIA So far as the issue relating to FTS is concerned, we find that, this Tribunal in B4U International Holdings (2012 (6) TMI 15 - ITAT MUMBAI) on similar payment made to Panamsat, it was held that they do not satisfy the test of make available as enshrined in Article 12(3) in Indo-US-DTAA and thus, the said payment cannot be held to be taxable as being for technical services and secondly, on this ground also, the provision of TDS is not attracted. In any case Ld. CIT (A) cannot hold that same payment would fall in the nature of royalty and at same time would be reckoned as FTS also. As regards the issue of business communication in India, simply because the transponders have been used in for business in India will tantamount to business connection of Intelsat in India and, accordingly, such an observation and finding of the CIT(A) is hereby rejected by us. - Decided in favour of assessee. Interest u/s 244A on refund of extra TDS deposited under section 195 - Held that - Issue should be remanded back to the file of the Assessing Officer to decide the matter after considering the latest CBDT Circular No.11 of 2016 dated 26th April, 2016. We order accordingly
Issues Involved:
1. Whether tax is required to be deducted at source on the amount payable by the Appellant to Intelsat Corporation under the Transponder Services Agreement. 2. Whether the transponder service charges paid by the Appellant to Intelsat constitute royalty under the provisions of the Income Tax Act. 3. Whether the transponder service charges paid by the Appellant to Intelsat constitute royalty under the provisions of the Double Taxation Avoidance Agreement (DTAA) between India and the United States. 4. Whether the transponder service charges paid by the Appellant to Intelsat constitute fees for technical services under the provisions of the Income Tax Act. 5. Whether Intelsat has a business connection in India through the uplink station of Esse Shyam Communication Limited and the cable and direct-to-home operators located in India. 6. Whether the uplink station of Esse Shyam Communication Limited forms the source of income for Intelsat concerning the transmission of programs of the Appellant’s television channels uplinked from India. 7. Whether the Delhi High Court's decision in the case of Intelsat, which held that the receipts for rendering transponder services are not taxable in India, applies to the present case. 8. Whether the Appellant is entitled to interest under Section 244A of the Income Tax Act on the taxes deposited. Detailed Analysis: 1. Tax Deduction at Source: The Tribunal examined whether the Appellant was required to deduct tax at source on payments made to Intelsat Corporation under the Transponder Services Agreement. The Appellant argued that the payments were not taxable in India either as royalty or fees for technical services under the Domestic Law or the DTAA. The Assessing Officer, however, held that the payments constituted royalty and directed the Appellant to deduct taxes at a specified rate. 2. Transponder Service Charges as Royalty under the Income Tax Act: The Tribunal analyzed whether the transponder service charges paid by the Appellant to Intelsat constituted royalty under the Income Tax Act. The Assessing Officer relied on the Delhi Tribunal's decision in the case of New Skies Satellites BV, which held that services rendered through satellites for telecommunication or broadcasting amounted to a 'process,' and therefore, payments for such services constituted 'royalty.' However, the Tribunal noted that the Delhi High Court in the case of Intelsat Corporation ruled that such payments do not constitute royalty. 3. Transponder Service Charges as Royalty under the DTAA: The Tribunal considered whether the transponder service charges constituted royalty under the DTAA between India and the United States. The Appellant cited the Delhi High Court's ruling in the case of Intelsat Corporation, which held that such payments do not constitute royalty under the DTAA. The Tribunal agreed with this interpretation, noting that the definition of royalty in the DTAA did not include payments for transponder services. 4. Transponder Service Charges as Fees for Technical Services: The Tribunal evaluated whether the transponder service charges could be considered fees for technical services under the Income Tax Act. The Appellant argued that the use of transponder services was solely for transmitting satellite signals and did not involve any technical knowledge or experience being made available to the Appellant. The Tribunal concurred, referencing previous rulings that established such payments do not qualify as fees for technical services. 5. Business Connection in India: The Tribunal examined whether Intelsat had a business connection in India through the uplink station of Esse Shyam Communication Limited and the cable and direct-to-home operators located in India. The Assessing Officer contended that the uplink station formed a business connection, making the income taxable in India. However, the Tribunal referred to the Delhi High Court's decision, which indicated that the presence of uplink facilities in India did not establish a business connection that would render the payments taxable. 6. Source of Income: The Tribunal considered whether the uplink station of Esse Shyam Communication Limited formed the source of income for Intelsat concerning the transmission of programs of the Appellant’s television channels. The Tribunal found that the Delhi High Court had already addressed this issue, ruling that the transponder services provided by Intelsat did not constitute a source of income in India. 7. Applicability of Delhi High Court's Decision: The Tribunal noted that the Delhi High Court had ruled in favor of Intelsat Corporation, holding that the receipts for rendering transponder services were not taxable in India. The Tribunal emphasized that this ruling applied to the present case, as the nature and terms of the arrangement remained the same. 8. Entitlement to Interest under Section 244A: The Tribunal addressed the Appellant's claim for interest under Section 244A of the Income Tax Act on the taxes deposited. The Tribunal remanded this issue back to the Assessing Officer to decide after considering the latest CBDT Circular No. 11 of 2016. Conclusion: The Tribunal concluded that the payments made by the Appellant to Intelsat were not taxable as royalty or fees for technical services under the relevant DTAA provisions. Consequently, the Appellant was not required to deduct TDS on such payments. The Tribunal also remanded the issue of interest under Section 244A to the Assessing Officer for further consideration. All appeals filed by the Appellant were treated as allowed.
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