9911796707
TMI Blog2024 (6) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration of Engineering Analysis Centre of Excellence (P.) Ltd [ 2021 (3) TMI 138 - SUPREME COURT ] Also there is no dispute that there is a DTAA entered with the countries in question, with whose residents the transactions were entered into by the assessee. It is clear that the approach of the AO in the present case was against the correct position in law as held by the Tribunal, and now also endorsed by the Supreme Court in Engineering Analysis Centre of Excellence (P.) Ltd [ 2021 (3) TMI 138 - SUPREME COURT ]. In this view of the matter, we are in agreement with Mr. Madhur Agarwal that these four Appeals would not give rise to the question of law as noted by us hereinabove. As fairly pointed out for the parties, as the facts are not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of the Act the assessee raised contentions as to why remittance made to such foreign parties was not liable to be taxed as royalty , under the provisions of Section 9 (1) (vi) of the Act. Such application of the assessee was rejected by an order dated 14th September, 2003 passed by the Deputy Director of Income Tax (International Tax). The assessee carried the matter in appeal before the CIT (A). The appeals filed by the assessee were allowed by the CIT (A), against which at the behest of the Revenue the proceedings reached the Tribunal. 5. In assailing the orders passed by the Tribunal the Revenue has urged the following substantial question of law which we have reframed:- Whether the payments made by the assessee for obtaining compute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the DTAA entered between India and U.S.A. as also the provisions of Section 9 (1) (vi) of the IT Act, to the transaction between the parties, held that the transaction involved copyright, which attracted the payment of royalty and accordingly, tax was required to be deducted at source by the Indian importer. Since this was not done, it was held that the assessee was liable to make good the payment of TDS which it had not deducted. Also interest under Section 201(1) (A) of the Act was levied. The Appeal before the Commissioner was also dismissed. 9. In these circumstances, the proceedings had reached the Tribunal at the instance of the assessee. The assessee succeeded in these proceedings, with the ITAT setting aside the concurrent findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the use or right to use any copyright. It was held that the provisions of Section 9 (1) (vi) of the Act along with Explanation 2 and 4 thereof which dealt with royalty, not being more beneficial to the assessee, had no application in the facts of the case. It would be appropriate to extract the conclusion as rendered by the Supreme Court in which reads thus:- 168. Given the definition of royalties contained in Article 12 of the DTAAs mentioned in paragraph 41 of this judgment, it is clear that there is no obligation on the persons mentioned in section 195 of the Income-tax Act to deduct tax at source, as the distribution agreements/EULAs in the facts of these cases do not create any interest or right in such distributors/end users, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispute that there is a DTAA entered with the countries in question, with whose residents the transactions were entered into by the assessee. 12. In the aforesaid circumstances, it is clear that the approach of the Assessing Officer in the present case was against the correct position in law as held by the Tribunal, and now also endorsed by the Supreme Court in Engineering Analysis Centre of Excellence (P.) Ltd (supra). In this view of the matter, we are in agreement with Mr. Madhur Agarwal that these four Appeals would not give rise to the question of law as noted by us hereinabove. 13. As fairly pointed out by the learned Counsel for the parties, as the facts are not in dispute as also the DTAA in question applicable we are not discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
