2009 (10) TMI 38 - HC - Income Tax

Royalty ITAT held that amount paid for supply of data and information cannot be treated as a royalty under the provisions of Section 9 of the Income Tax Act, 1961 and in allowed remittances without deduction of tax at source held that - The foreign company has no business in India. It has no plant in India. The transaction took place in Singapore. The agreement was entered into between the parties at Singapore and the documents were handed over to the representative of the Indian company at Singapore. This is a case of outright purchase of plant know how and not a case of transfer of interest ITAT was right in holding that the assesse had purchased the designs, sketches, photographs etc answered in favor of assessee and against the revenue

Summary

Issues:
Whether payment of 15 million yen can be treated as royalty under Section 9 of the Income Tax Act, 1961 and remittances allowed without deduction of tax at source.

Analysis:
The case involved a dispute regarding a payment made by an Indian company to a foreign company for the supply of plant know-how and product know-how. The Assessing Officer initially considered the payment as fees for technical services, but the C.I.T (Appeals) allowed the claim of the assessee. The Income Tax Appellate Tribunal (ITAT) held that the payment was for Plant Know-How and not royalty, as it was related to technical and engineering data, design data, and other information purchased by the assessee from the foreign company in Singapore. The Tribunal concluded that the income did not arise in India, and thus, it cannot be treated as royalty under the Income Tax Act.

The key legal provisions considered in the judgment were Section 5(2), Section 9(1)(vi), and Section 9(1)(vii) of the Income Tax Act. Section 5(2) deals with income deemed to be received in India, while Section 9(1)(vi) and Section 9(1)(vii) pertain to the taxation of royalty and fees for technical services payable by residents.

The contention of the revenue was that the payment constituted royalty or fees for technical services under the Act. On the other hand, the assessee argued that the payment was for plant know-how, which was not taxable income in India. The definition of royalty under Explanation 2 to Section 9(1)(vi) was crucial in determining the nature of the payment.

The court analyzed the agreement between the companies, which involved the transfer of Plant Know-How and Product Know-How. It emphasized that the purchase of technical documents, including designs and data, constituted plant within the meaning of the Income Tax Act. Referring to previous judgments, the court established that the purchase of plant know-how did not amount to royalty income.

The court also considered the location of the transaction and the nature of the documents purchased. It highlighted that the foreign company had no business or plant in India, and the entire transaction took place in Singapore. Based on these factors and the specific terms of the agreement, the court upheld the ITAT's decision that the payment was for the purchase of plant know-how and not royalty.

In conclusion, the court ruled in favor of the assessee, affirming the ITAT's decision that the payment made was for the purchase of designs and technical information, and not royalty. The appeal was disposed of accordingly, with no order as to costs.