2023 (6) TMI 926 - AT - Income Tax

TDS u/s 195 - Income taxable in India - Royalty - payments made for purchases for copyrighted articles as per AO consideration for software constitutes Royalty under the Act and such royalty is taxable in India and hence the company was required to deduct TDS on payments made to Innovative Education Services PTE Ltd, Singapore - HELD THAT - It is a fact that the Hon'ble Supreme Court in the case of Engineering Analysis Centre of Excellence 2021 (3) TMI 138 - SUPREME COURT has settled the dispute in favour of the assessee and against the Revenue The present appellant comes under Category III concerns cases wherein the distributor happens to be a foreign, non-resident vendor, who, after purchasing software from a foreign, non- resident seller, resells the same to resident Indian distributors or end-users The amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of which the persons referred to in section 195 were not liable to deduct any TDS under section 195 of the Income-tax Act. Decided in favour of assessee.

Summary

Issues involved:
The issues involved in the judgment are the treatment of payments made for purchases of copyrighted articles as royalty, disallowance of payment made to a foreign entity under section 40(a)(1) of the Income-tax Act, and the applicability of tax deduction at source on payments made for software solutions.

Treatment of payments for copyrighted articles as royalty:
The appellant challenged the addition made by the Assessing Officer, arguing that the payments made for purchases of copyrighted articles should not be treated as royalty. The Assessing Officer relied on section 9(1)(vi) of the Income-tax Act, stating that consideration for software constitutes royalty and is taxable in India. The appellant contended that the products in question were software solutions, not journals as mentioned in the filings. The dispute was settled in favor of the appellant by referring to the decision of the Hon'ble Supreme Court in a similar case.

Disallowance of payment to a foreign entity under section 40(a)(1):
The Assessing Officer disallowed the payment made to a foreign entity under section 40(a)(1) of the Act due to non-deduction of tax at source. The appellant argued against the disallowance, stating that the payments were for software solutions, not subscriptions for journals as mentioned in the filings. The Hon'ble Supreme Court's decision in a related case supported the appellant's position, leading to the direction to delete the impugned addition.

Applicability of tax deduction at source on payments for software solutions:
The dispute involved whether tax deduction at source was applicable on payments made for software solutions. The Assessing Officer insisted on the deduction of TDS, while the appellant argued against it based on the nature of the transactions. The decision of the Hon'ble Supreme Court clarified that the payments for software solutions did not constitute royalty, leading to the deletion of the addition made by the Assessing Officer.

The judgment resolved the issues in favor of the appellant based on the interpretation of relevant legal provisions and the decision of the Hon'ble Supreme Court.