2014 (7) TMI 221 - HC - Income Tax

Payments for the equipment and spare parts Royalty u/s 9(1)(vi) of the Act Held that - The decision in Haldor Topsoe A/s Denmark Jeevan Vihar Annexure Versus The Addl Commr of Income Tax (International Taxation) 2013 (5) TMI 491 - ITAT MUMBAI followed - The contention of Mr. Pinto cannot be accepted that the widest possible meaning of the term 'royalty' and as found in the definition of the term in the explanation (2) would include the transaction under which payment has been made for supply of Converters - the agreement postulates the payment for the equipment - The technical information that is provided is related to data plant specification flow sheet which are issued in the installation of the plant - there is no transfer of rights in the nature contemplated by clauses (i) to (v) of the Explanation 2 so as to be termed as 'royalty' - the equipment was supplied to the Indian party and for which the Indian party made payment - The contract in relation to a contract included stipulations for giving all information so as to guide the Indian party to install the equipment at site and thereafter to use it - this is a mixed question and a finding of fact has been rendered considering the peculiar facts and circumstances. The payment was found to be made towards the supply of equipment and that too on 'principal to principal' basis relying upon Commissioner of Income Tax v/s Gulf Oil (Great Britain) Ltd. 1975 (8) TMI 17 - BOMBAY High Court the order is not vitiated by any error of law apparent on the face of the record and/or suffering from any perversity enabling us to entertain the Appeal thus, no substantial question of law arises for consideration and the order of the Tribunal is upheld Decided against Revenue.

Issues Involved:
1. Taxability of payments for equipment and spare parts under section 9(1)(vi) of the Income Tax Act 1961.
2. Classification of payments towards supply of equipment as royalty under section 9 of the Income Tax Act 1961.
3. Applicability of interest under section 234B when entire income is subject to tax deduction at source.

Detailed Analysis:

Issue 1: Taxability of Payments for Equipment and Spare Parts
The first issue concerns whether payments amounting to DM 7,15,000 for equipment and spare parts constitute income accruing or arising to the Assessee under section 9(1)(vi) of the Income Tax Act 1961. The Tribunal concluded that these payments do not fall within the definition of 'royalty' as per the Income Tax Act. The Tribunal's decision was based on the interpretation that the payments were for the supply of equipment and not for the transfer of any rights or imparting of information as specified under Explanation 2 of section 9(1)(vi). The Tribunal held that the information provided was merely for the installation and use of the equipment and did not constitute a transfer of rights enabling the Indian company to manufacture the equipment itself. The High Court upheld this view, stating that the Tribunal's findings were based on factual materials and did not raise any substantial question of law.

Issue 2: Classification of Payments Towards Supply of Equipment as Royalty
The second issue pertains to whether payments of DM 13,30,000 towards the supply of equipment are in the nature of royalty. The Tribunal found that these payments were made on a 'principal to principal' basis for the supply of equipment and were not for the transfer of any rights or imparting of technical knowledge as defined under section 9(1)(vi). The Tribunal referenced its earlier decisions and the judgment of the Andhra Pradesh High Court in 262 ITR 110, which held that supplementary contracts for remittance made to supervising staff and other information related to the installation of machinery do not constitute royalty. The High Court agreed with the Tribunal's interpretation, emphasizing that the payments were for the supply of equipment and did not fall within the broader definition of 'royalty' under the Income Tax Act or the Double Taxation Avoidance Agreement (DTAA) between India and Denmark.

Issue 3: Applicability of Interest Under Section 234B
The third issue addresses whether interest under section 234B is applicable when the entire income received by the non-resident Assessee is subject to tax deduction at source. The Tribunal held that no advance tax was payable by the Assessee since the entire income was liable to tax deduction at source. This view was supported by the Division Bench judgment of the Bombay High Court in Director of Income Tax (International Taxation) v/s NGC Network Asia LLC, reported in (2009) 313 ITR 187 (Bom). The High Court acknowledged that this issue was concluded in favor of the Assessee based on the precedent and did not raise any substantial question of law.

Conclusion:
The High Court dismissed the Revenue's appeals, affirming the Tribunal's findings that the payments for equipment and spare parts and the supply of equipment did not constitute 'royalty' under section 9(1)(vi) of the Income Tax Act 1961. The court also upheld that no interest under section 234B was chargeable as the entire income was subject to tax deduction at source. The appeals did not raise any substantial questions of law and were dismissed with no order as to costs.

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