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2021 (6) TMI 845 - AT - Income TaxTDS u/s 195 - assessee received as consideration towards software licensed to Indian distributors/customer - Royalty u/s. 9(1)(vi) of the Act and Art 12 of India-Singapore DTAA - AO also proposed to tax the consideration received from Indian distributors/customers for sale of hardware as royalty on the basis that hardware and software are inseparable and that the software cannot function in the obscene of hardware - HELD THAT - Respectfully following the above view in case of Engineering Analysis Centre of Excellence Pvt. Ltd. 2021 (3) TMI 138 - SUPREME COURT we hold that purchase of software in the present facts does not amount to give rise to any taxable income in India as a result of which provisions of sec. 195 of the Act are not attracted. The assessee does not have any obligation to deduct tax at source. Therefore, provisions of sec. 9(1)(vi) along with Explanation 2 is not applicable to present assessee's.
Issues:
1. Taxability of consideration received for sale of software as royalty. 2. Taxability of consideration received for sale of hardware as royalty. 3. Applicability of Article 24 of the DTAA. 4. Credit of tax deducted at source. 5. Initiation of penalty. Issue 1: Taxability of consideration received for sale of software as royalty The appellant, a Singapore based company, filed appeals against orders passed by the ITO for assessment years 2010-11 to 2013-14. The appellant claimed that the consideration received for the sale of software and hardware to Indian distributors/customers was made outside India. The ITO treated the consideration as royalty under section 9(1)(vi) of the Act and India-Singapore DTAA. The DRP upheld the decision. However, the Tribunal, following the decision of the Supreme Court in the case of Engineering Analysis Centre of Excellence Pvt. Ltd. vs CIT, concluded that the purchase of software did not give rise to taxable income in India. Therefore, the provisions of section 195 of the Act were not attracted, and the appellant was not obligated to deduct tax at source. Consequently, the appeal was allowed on this ground. Issue 2: Taxability of consideration received for sale of hardware as royalty The ITO proposed to tax the consideration received for the sale of hardware as royalty based on the inseparability of hardware and software. However, the Tribunal's decision on the taxability of software as royalty also applied mutatis mutandis to the sale of hardware. As a result, the Tribunal held that the consideration received for the sale of hardware did not give rise to any taxable income in India, and the appellant was not required to deduct tax at source. Therefore, the appeal on this ground was allowed. Issue 3: Applicability of Article 24 of the DTAA The appellant contested the applicability of Article 24 of the DTAA. The Tribunal did not find the provisions of Article 24 applicable to the appellant's case, especially considering the findings on the taxability of software and hardware sales. Therefore, the appeal on this issue was not upheld. Issue 4: Credit of tax deducted at source The appellant claimed a credit of tax deducted at source, which the ITO did not grant fully. However, since the Tribunal found that the appellant was not liable to deduct tax at source on the consideration received for software and hardware sales, the issue of credit of tax deducted at source became irrelevant. Therefore, the appeal on this ground was not considered. Issue 5: Initiation of penalty The ITO initiated penalty proceedings under section 271(1)(c) of the Act. However, since the Tribunal allowed the appeals on the primary issues of taxability of software and hardware sales, the question of penalty did not arise. Therefore, the appeal against the initiation of penalty proceedings was not addressed. In conclusion, the Tribunal allowed all the appeals filed by the appellant concerning the taxability of consideration received for the sale of software and hardware, based on the decision of the Supreme Court and the non-applicability of tax deduction at source provisions. The other issues raised in the appeals became academic in light of the primary findings.
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