2022 (3) TMI 965 - AT - Income Tax

TDS u/s 195 - disallowance of online advertisement expenditure under section 40(a)(i) - whether online advertisement services are in the nature of royalty under section 9(1)(vi) of the Act on which TDS is applicable - HELD THAT - We are of the opinion that the similar issue came up for consideration before the Tribunal in the case of Moonfrog Labs Pvt. Ltd. 2022 (1) TMI 1089 - ITAT BANGALORE - Thus we remit the issue to the file of AO with similar directions. AO shall call for the Master Services Agreement which reveals the type of services rendered by the service provider. The assessee is directed to cooperate in the proceedings before the AO by providing all relevant information. We have placed reliance on Supreme Court judgment in the case of Engineering Analysis Centre of Excellence P. Ltd. 2021 (3) TMI 138 - SUPREME COURT we have not considered the order of the coordinate Bench of the Tribunal in the case of Urban Ladder Home D cor Solutions Pvt. Ltd. 2021 (8) TMI 927 - ITAT BANGALORE . Appeal is allowed for statistical purposes.

Issues Involved:
1. Disallowance under section 40(a)(i)
2. Nature of online advertisement services as royalty
3. Applicability of judicial decisions
4. Obligation to deduct tax at source under section 195
5. Restriction of disallowance to 30% under non-discrimination clause of Treaties
6. Levy of interest under sections 234B and 234D

Issue-Wise Detailed Analysis:

1. Disallowance under section 40(a)(i):
The appellant challenged the disallowance of online advertisement expenditure amounting to ?5,06,48,758 under section 40(a)(i). The appellant argued that the disallowance was not applicable as the payments did not constitute royalty or fees for technical services and the vendors did not have a permanent establishment in India. The AO, however, treated these payments as royalty and disallowed the expenditure for non-deduction of tax at source.

2. Nature of online advertisement services as royalty:
The appellant contended that online advertisement services should not be classified as royalty under section 9(1)(vi) of the Income Tax Act. The AO and CIT(A) disagreed, relying on judicial decisions that considered similar payments as royalty, thus necessitating tax deduction at source.

3. Applicability of judicial decisions:
The appellant argued that the CIT(A) erred by relying on irrelevant judicial decisions and not considering the factual details of the services obtained. The CIT(A) upheld the AO's view, referencing the Karnataka High Court judgment in CIT Vs. Samsung-Electronics and the Supreme Court case of Transmission Corporation of A.P. Ltd. Vs. Anr. The appellant cited the Supreme Court's reversal of the Samsung Electronics decision in GE India Technology Cen (P) Ltd. Vs. CIT, arguing that their payments did not constitute royalty.

4. Obligation to deduct tax at source under section 195:
The appellant maintained that they were not obligated to deduct tax at source under section 195, supported by various judicial precedents. The CIT(A) upheld the AO's stance that the appellant should have sought adjudication under section 195(2) for non-deduction or lower deduction of tax.

5. Restriction of disallowance to 30% under non-discrimination clause of Treaties:
The appellant argued that if any disallowance were to be made, it should be restricted to 30% based on the non-discrimination clause of the applicable tax treaties. The CIT(A) did not provide findings on this ground, leading the appellant to file for rectification.

6. Levy of interest under sections 234B and 234D:
The appellant contested the levy of interest under sections 234B and 234D amounting to ?24,76,287 and ?11,297 respectively. The CIT(A) upheld the AO's computation of interest.

Tribunal's Findings:
The Tribunal noted that the CIT(A) had followed the Karnataka High Court's decision in Samsung Electronics, which was reversed by the Supreme Court in Engineering Analysis Centre of Excellence P. Ltd. The Supreme Court concluded that payments for software use did not constitute royalty and were not taxable in India, thus no TDS was required under section 195.

Order:
The Tribunal remitted the issue back to the AO for fresh examination in light of the Supreme Court's decision in Engineering Analysis Centre of Excellence P. Ltd. The AO was directed to review the Master Services Agreement to determine the nature of services rendered. The appeal was allowed for statistical purposes, with the appellant directed to cooperate by providing relevant information.

Conclusion:
The Tribunal's decision emphasized the need for fresh examination of the nature of payments for online advertisement services, applying the Supreme Court's ruling that such payments do not constitute royalty and are not subject to TDS under section 195. The appeal was allowed for statistical purposes, remitting the matter back to the AO for further consideration.

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