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2019 (3) TMI 154 - AT - Income TaxRectification u/s 254(2) - Royalty - Levy of tax on receipt from other advertisers towards sale of online ad space in Inida under AdWord Program - PE in India - it was contended that, the revenue assessed the receipts in the hands of GIL as business profits should be rectified suitably - HELD THAT - It was never the case of the AO or the DRP/CIT(A) that receipts from sale of Advertisements under the AdWord Program was business profits of GIL and that it was taxable in the hands of GIL because GIPL constituted PE of GIL in India. The case of the revenue has always been that the said receipts were in the nature of royalty. It was the case of GIL that the receipts were not in the nature of royalty and were in the nature of business profits of GIL and since GIL did not have a PE in India, the said receipts are not chargeable to tax in India. To this extent it can be said that there appears to be a mistake in the order of the Tribunal in paragraph 190 of the order. The appeals were not heard by either of us. We are therefore unable to fathom as to why the Tribunal remanded the case to the AO to reframe assessment in the light of the directions contained in the order. The issue sought to be agitated in this MP before the Tribunal is highly debatable and two views are possible on the issue. In such circumstances, we are of the view that it would not be appropriate to exercise powers u/s.254(2) of the Act as the order does not suffer from any mistake apparent on the face of the record. None of the observations in this order should influence the mind of the parties in their interpretation of the order.- Miscellaneous petition dismissed.
Issues Involved:
1. Whether the sum received by the Assessee from Google India Private Limited (GIPL) and other advertisers towards the sale of online ad space under the AdWord Program is chargeable to tax as 'Royalty' under the Income Tax Act and the Double Taxation Avoidance Agreement (DTAA). 2. Validity of initiation of reassessment proceedings under section 147 of the Income Tax Act. 3. Whether there was an apparent error in the Tribunal's order regarding the characterization of payments and the treatment of GIPL as a Permanent Establishment (PE) of GIL in India. Issue-Wise Detailed Analysis: 1. Taxability of Payments as 'Royalty': The primary issue was whether the payments received by the Assessee from GIPL and other advertisers for online ad space sales under the AdWord Program should be taxed as 'Royalty' under the Income Tax Act and DTAA. The Tribunal had previously ruled that these payments were in the nature of royalty and chargeable to tax in India. This decision was based on the characterization of the payments made by GIPL to GIL under the Google AdWord Distribution Agreement as royalty. Consequently, since GIPL did not deduct tax at source on these payments, the amounts were disallowed under section 40(a)(ia) of the Act and added to the Assessee's total income. 2. Reassessment Proceedings under Section 147: The Assessee had challenged the validity of the reassessment proceedings initiated under section 147 of the Income Tax Act. However, the judgment does not provide detailed discussions on this issue, focusing more on the characterization of the payments and the treatment of GIPL as a PE of GIL. 3. Apparent Error in Tribunal's Order: The Revenue filed a petition under section 254(2) of the Income Tax Act, alleging apparent errors in the Tribunal's order. The Revenue contended that the Tribunal mistakenly assumed that the assessment was made by treating the receipts as business profits and GIPL as a PE of GIL. The Tribunal clarified that the assessment was based on the receipts being in the nature of royalty, not business profits. The Tribunal emphasized that the scope of section 254(2) is limited to rectifying mistakes apparent from the record and does not extend to review or revision of the order. The Tribunal noted that the appeals involved multiple cases, including 14 appeals related to GIPL and one appeal related to GIL. The Tribunal's decision in the case of GIPL was based on the non-deduction of tax at source on payments made to GIL, which were characterized as royalty. The Tribunal also observed that the facts of the case differed from other cited cases where payments were considered business receipts. The Tribunal acknowledged that the Assessee's interpretation of the order suggested that payments received directly from advertisers could be considered business profits and not taxable in India due to the absence of a PE. However, the Tribunal clarified that it was not the case of the AO or CIT(A) that the receipts were business profits. The Tribunal concluded that the issue was debatable and not suitable for rectification under section 254(2). Conclusion: The Tribunal dismissed the miscellaneous petition, stating that the order did not suffer from any apparent mistake on the face of the record. The Tribunal emphasized that its observations should not influence the parties' interpretation of the order and maintained that the issue was highly debatable, warranting no interference under section 254(2) of the Act. The order was pronounced in the open court on 20th February 2019.
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