9911796707
TMI Blog2022 (7) TMI 1375X X X X Extracts X X X X X X X X Extracts X X X X ..... on that issue stood squarely covered in assessee s favour by the lead decision of this Tribunal in assessee s own case for the A.Y. 2006-07[ 2011 (12) TMI 195 - ITAT MUMBAI] wherein it is held As rightly held by the CIT (A) even if income arises to the Non-Resident due to the business connection in India, the income accruing or arising out of such business connection can only be taxed to the extent of the activities attributed to permanent establishment. In this case, the assessee does not have any permanent establishment in India. Since the Indian company who obtained the rights is acting independently, Agency PE provisions are not applicable to the assessee company. The assessee relied on the decision of Ishikawajma-Harima Heavy Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roup studios or produced by other third parties. Warner Bros Pictures International, a Division of Warner Bros Distributing Inc. (WBDI) has entered into an agreement with Warner Bros Pictures (India) Pvt. Ltd. ('WBPIPL') in April 01, 2009 granting exclusive rights of distribution of cinematographic film to WBPIPL, on payment of specified royalty in terms of the above referred Agreement. During the year under consideration the assessee has received ₹.42,59,04,410/- from WBPIPL under the terms of agreement, which has been characterized as 'Royalty Income' by the assessee and claimed exempt under the Act and the India-USA DTAA, both. The income was claimed to be non-taxable as Royalty income by the assessee on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the issue under appeal is squarely stood covered in assessee's favour by various decisions of this Tribunal right from A.Y. 2006-07 to 2017-18, copies of orders has been placed on record. SrNo Assessment Year ITA No. Date of Order Finding of Hon'ble ITAT 1 2006-07 ITA No. 3160/Mum/2010 30.12.2011 Para 11 2 2007-08 ITA No. 8734/Mum/2010 10.10.2012 Para 5.3 3 2008-09 ITA No. 8627/Mum/2011 22.02.2013 Para 4.3 4 2009-10 ITA No. 7553/Mum/2012 05.03.2014 Para 5, 5.1 5 2010-11 ITA No. 1405/Mum/2014 27.10.2016 Para 4 6 2011-12 ITA No. 1615/Mum/2015 08.11.2016 Para 6 7 2012-13 ITA No. 4877/Mum/2015 26.07.2017 Para 5 8 2013-14 ITA No. 7635/Mum/2016 26.07.2017 Para 11 9 2014-15 ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for use in connection with Radio or T.V. broadcasting. In view of this specific provisions, the amount received by the assessee cannot be considered as royalty as was done by the Assessing Officer while invoking the Article 12(2) of the DTAA for taxing the amounts. To that extent the findings of the CIT (A) are correct and there is no need to deviate from such findings. In view of this the amount received by the assessee cannot be considered as royalty within the meaning of Indian Income Tax Act or under the DTAA. 10) The issue can be examined in another dimension whether the amount is taxable under the Indian Income Tax Act in India if not as royalty, but as business income. The CIT (A) finding is that assessee has a business connect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing independently, Agency PE provisions are not applicable to the assessee company. The assessee relied on the decision of Ishikawajma-Harima Heavy Industries Ltd vs. Director of Income Tax 2007-(158)-TAXMAN 0259-SC that incomes arising to a Non-Resident cannot be taxed as business income in India, without a PE. As the assessee does not have any permanent establishment in India, the incomes arising outside Indian Territories cannot be brought to tax. Therefore, there is no need to differ from the findings of the CIT (A) and accordingly the Revenue Appeal is dismissed. 12) In the cross objection, the assessee is contesting about the findings of the CIT (A) that the general principles of section 9(1)(i) will apply in the absence of inclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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