2022 (3) TMI 447 - AT - Income Tax

Royalty receipt - payments received by MOL from MO for grant of licence for use of software - AO was of the opinion that the term Royalty takes into its ambit industrial and copyright royalties. Transfer of the right in the property is not subject matter - India - US DTAA - HELD THAT - As decided in own case 2013 (11) TMI 1382 - DELHI HIGH COURT stating that there is no transfer of any right in respect of copyright by the assessee and it is the case of mere transfer of copyrighted article and the payment was for a copyrighted article and represents the purchase price of an article and cannot be considered as royalty even under the Income Tax Act, 1961 or under the DTAA. When once we reach such a conclusion, we do not find any need for further verification of any fact at the end of the Assessing Officer. Insofar as the law laid down by the Hon'ble High Court is concerned, whether or not this particular judgement was available before the Assessing Officer at the time of framing of the assessment, it makes little difference because the decision of the Hon'ble High Court binds the learned Assessing Officer in the same way as it binds this Tribunal also. We, therefore, do not find any need to remand the matter back to the file of the learned Assessing Officer - issue decided in favour of assessee. - Decided in favour of assessee.

Issues involved:
1. Taxability of revenue from sale of software
2. Application of tax rate on alleged royalty income
3. Initiation of penalty proceedings under section 271(1)(c) of the Act

Comprehensive Analysis:
1. Taxability of revenue from sale of software:
The appeals were filed against the order framed under section 144C(13) r.w.s 143(3)/254 of the Income-tax Act, 1961 for Assessment Years 2007-08 to 2010-11. The main issue revolved around whether the revenue earned by the assessee from the sale of software to distributors in India is taxable as "Royalty." The Assessing Officer considered the entire sum received by the assessee as taxable royalty income. However, the assessee argued that the consideration for the sale of software should not be treated as royalty as no right to commercially exploit the copyright in the software was granted. The Tribunal referred to various judgments and ultimately held in favor of the assessee, stating that the consideration for the sale of software was for a copyrighted article and not for the transfer of copyright, thus constituting business income and not royalty income.

2. Application of tax rate on alleged royalty income:
Another issue raised in the appeals was the application of the tax rate on the alleged royalty income. The assessee contended that the tax rate applied by the Assessing Officer was incorrect and should have been at a lower rate prescribed under section 115A of the Income-tax Act, 1961. The Tribunal, after considering the arguments and previous decisions, directed the Assessing Officer to apply the beneficial tax rate of 10% plus applicable surcharge and education cess on the alleged royalty income, in line with the provisions of the Act.

3. Initiation of penalty proceedings under section 271(1)(c) of the Act:
The third issue involved in the appeals was the initiation of penalty proceedings under section 271(1)(c) of the Act against the assessee. The assessee challenged the penalty proceedings, arguing that they were not justified given the nature of the income and the tax treatment. The Tribunal, after analyzing the facts and legal provisions, allowed the appeals of the assessee and directed the Assessing Officer to delete the impugned addition, thereby resolving the issue of penalty proceedings in favor of the assessee.

In conclusion, the Tribunal's decision in the appeals addressed the taxability of revenue from the sale of software, the application of the tax rate on alleged royalty income, and the initiation of penalty proceedings under section 271(1)(c) of the Act, ultimately ruling in favor of the assessee on all counts.

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