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TMI Blog2019 (5) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under section 201(1) & 201(1A) and 271C of the Income-tax Act, 1961 (in short 'the Act'). 2. Both the appeals filed by assessee and Revenue relating to same assessee were heard together and are being disposed of by this consolidated order for the sake of convenience. 3. The assessee in ITA No.1440/PUN/2014 has raised the following grounds of appeal:- 1. On the facts and circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) - IT / TP ['the learned CIT(A)'] erred in treating the payments for software licenses fees (as 'Royalty' as per Section 9(1)(vi) of the Income-tax Act, 1961 ('the Act') a. On the facts and circumstances of the case and in law, the learned CIT(A) has err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has erred in treating the retrospective amendment to Section 9(1)(vi) vide Finance Act 2012 as clarificatory in nature and that the amendment has not created a new charge of withholding tax with a retrospective effect. 6. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding the appellant as 'assessee in default' under Section 201(1) of the Act for not deducting the tax under section 195 of the Act on the payments made for purchase of software and determining the total tax liability of Rs. 2,264,484 (including interest of Rs. 974,224) under section 201(1A) of the Act. The Appellant submits that each of the above grounds of appeal are independent and without prejudice to one another. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal in ITA No.1440/PUN/2014. The issue raised in the present appeal is against orders of authorities below in treating the payment for software license fees as royalty as per section 9(1)(vi) of the Act and also as per DTAA agreement. 7. The learned Authorized Representative for the assessee at the outset pointed out that additional grounds of appeal are not pressed and hence, the same are dismissed as not pressed. 8. The learned Authorized Representative for the assessee pointed out that the assessee had entered into an End-user agreement with the suppliers and the Assessing Officer was of the view that it is case of payment of royalty since the use of software was in secret process. The Assessing Officer held the case of assessee to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on the ratio laid down by Pune Bench of Tribunal in the case of Cummins Inc for assessment years 2004-05 and 2006-07 in ITA Nos.73 & 74/PN/2011, order dated 08.08.2013 and the decision of Mumbai Bench of Tribunal in DDIT Vs. Reliance Infocom / Luscent Technologies (TS-433-ITAT-2013(Mum) and held that the assessee was required to deduct tax out of such payments made for acquiring software. 11. We find that the said issue has been elaborately considered by us in the recent decision of Pune Bench of Tribunal in John Deere India Pvt. Ltd. Vs. DDIT (IT) (supra), wherein it was held as under:- "90. In conclusion, we hold that purchase of software by the assessee being copyrighted article is not covered by the term "royalty‟ under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of tax under section 201(1) of the Act and interest charged under section 201(1A) of the Act. We thus, direct the Assessing Officer to delete demand created under section 201(1) of the Act and interest charged under section 201(1A) of the Act. The grounds of appeal raised by assessee are thus, allowed. 13. Now, coming to ITA No.1080/PUN/2015, wherein penalty under section 271C of the Act for such non deduction of tax at source out of payment made for purchase of royalty, was deleted by the CIT(A), against which the Revenue is in appeal. 14. We have already held that the assessee has not defaulted in non deduction of tax at source in the paras hereinabove and hence, the assessee is not liable for any penalty under section 271C of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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