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TMI Blog2019 (6) TMI 1689X X X X Extracts X X X X X X X X Extracts X X X X ..... The Hon'ble High Court [ 2019 (4) TMI 2092 - DELHI HIGH COURT] relying on the judgment in the case of GE Packaged Power Inc [ 2015 (1) TMI 1168 - DELHI HIGH COURT] confirmed the order of the Tribunal - we allow the grounds raised by the assessee. - ITA No. 5534/DEL/2016 - - - Dated:- 20-6-2019 - SHRI R.K. PANDA ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER For the Assessee : Shri Rishab Malhotra, Shri Ravi Sharma, Adv For the Revenue : Shri G.K. Dhall, CIT- DR ORDER PER SUDHANSHU SRIVASTAVA, JM:- This appeal by the assessee is preferred against the order of the DRP - 1, New Delhi dated 26/08/2016 pertaining to A.Y. 2013-14. 2. The assessee has raised the following grounds of appeal: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n section 9(i)(vi) of the Act as retrospectively amended by Finance Act, 2012, for the purpose of interpreting the definition of royalties as provided under Article 12(3) of the India-USA DTAA, when it is a settled position in law that amendment in Act cannot have any effect for the purpose of interpretation of DTAA. 3. That without prejudice to the above, on the facts and in the circumstances of the case and in law, the Panel and Ld. AO erred in holding that the revenues earned from non-resident customers of the Appellant are also chargeable to tax in India as per the provisions of section 9(i)(vi)(c) of the Act and Article 12(7) of the India-USA DTAA. 4. That without prejudiceto the above, the Panel and Ld. AO erred in categorizin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of the assessee. 3. Assessee is the owner and operator of global network of telecommunication satellites located in outer space and is engaged in active business of transmitting telecommunication signals to/from its customers and various TV channels, NICNET and Internet Service providers are using the satellites for various purposes including telecommunication, broadcasting etc; that for such purpose the assessee enters into contract with various parties around the world; and that during the FY 2011-12, the assessee leased out the transponders/bandwidth to various customers in India and customers outside India, who are using the transponder for their business in India and they as a part of their business, the assessee provided ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and Article 12(7)(b) of the tax treaty and are taxable @ 10% of the gross amount. On this premise, learned AO summarized the following amounts to tax: Particulars Total Revenue (Rs.) Attributed Revenue (Rs.) Tax (Rs.) Indian Customers (100%) 75,61,01,260/- 75,61,01,260/- 7,56,10,126/- Global Customers (Attribution @ 90%) 12,36,83,972/- 11,13,15,575/- 1,11,31,557/- Global Customers (Attribution @ 50%) 6,44.62,617/- 3,22,31,309/- 32,23,131/- Glo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and reiterated the arguments advanced in the above batch of appeals as could be culled out from para 10 of the said order. In view of the similarity of the facts and the nature of arguments, we do not deem it necessary to reiterate all the contentions of the parties here again. 8. It could be seen from the order dated 26.2.2018 in ITA No.2234/Del/2009 and batch, the contention of the assessee is that the impugned receipts cannot be held to be royalty and consequently cannot be brought to tax in India, so upheld by a coordinate bench of this Tribunal while referring to the decisions of the Hon'ble jurisdictional High Court in the case of Asia Satellite (supra) and New Skies Satellite BV (supra). It is not the case of the revenue tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour of the assessee and answer the issue stating that the income received by the assessee cannot be taxed as royalty in India. Needless to say, that the question of interest is only consequential in nature. 6. Aggrieved by this order of the Tribunal, the Revenue went in further appeal before the Hon'ble High Court of Delhi. The Hon'ble High Court, vide order dated 10.04.2019, relying on the judgment in the case of GE Packaged Power Inc 373 ITR 65, confirmed the order of the Tribunal. 7. Accordingly, respectfully following the findings of the co-ordinate bench and the Hon'ble High Court, we allow the grounds raised by the assessee. 8. In the result, the appeal filed by the assessee is allowed. Order pronounced in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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