Purchase of software being copyrighted article would not be covered by the term ‘royalty’ under section 9(1)(vi). Where the assessee did not acquire any copyright in the software, is not covered under Explanation 2 to section 9(1)(vi). Further; amended definition of ‘royalty’ under the domestic law cannot be extended to the definition of ‘royalty’ under DTAA, where the term ‘royalty’ originally defined has not been amended. As per definition of ‘royalty’ under DTAA, it is payment received in consideration for use or right to use any copyright of literary, artistic or scientific work, etc.; thus, purchase of copyrighted article does not fall in realm of ‘royalty’
IN THE ITAT PUNE BENCH ‘A’
Sandvik Tooling Sverige AB
v.
Deputy Commissioner of Income-tax (International Taxation), Circle 2, Pune
AND ANIL CHATURVEDI, ACCOUNTANT MEMBER
IT APPEAL NOS. 195 TO 197(PUN) OF 2017
[ASSESSMENT YEARS 2010-11, 2011-12 AND 2013-14]
MARCH 29, 2019
Nikhil Pathak for the Appellant. S.B. Prasad, CIT for the Respondent.
ORDER
Ms. Sushma Chowla, Judicial Member. – This bunch of three appeals filed by assessee are against separate orders of DCIT(International Taxation), Circle-2, Pune, all dated 29.11.2016 relating to assessment years 2010-11, 2011-12 and 2013-14 passed under section 144C(13) r.w.s. 143(3) r.w.s. 147/144C(13) r.w.s. 143(3) of the Income-tax Act, 1961 (in short ‘the Act’).
2. All the three appeals relating to the same assessee for different assessment years on similar issue were heard together and are being disposed of by this consolidated order for the sake of convenience. In order to adjudicate the issues, we make reference to the facts and issues in ITA No.195/PUN/2017, relating to assessment year 2010-11.
3. The assessee in ITA No.195/PUN/2017, relating to assessment year 2010-11 has raised the following grounds of appeal:—
| 1. | Ground 1: | |
| On the facts and circumstances of the case, and in law, the Learned Dispute Resolution Panel (‘Ld. DRP’) erred in confirming the action of the Learned Assessing Officer (‘Ld.AO’) in reopening the assessment proceedings by invoking the provisions of Section 147 of the Income-tax Act, 1961. | ||
| It is prayed that the reassessment initiated by the Ld.AO and confirmed by the Hon’ble DRP is invalid and void and hence be quashed. | ||
| 2. | Ground 2: | |
| Without prejudice to Ground 1 above, on the facts and circumstances of the case, and in law, Ld. DRP have erred in confirming the action of the Ld. AO. of taxing the receipt for granting limited user access to CAD/CAM utility of Rs. 84,68,627 as ‘Royalty’ within the meaning of Article 12 of the Double Taxation Avoidance Agreement between India and Sweden (‘DTAA’ or ‘the tax treaty’). | ||
| It is prayed that the addition made by the Ld. AO and confirmed by the Ld. DRP be deleted. | ||
| 3. | Ground 3 | |
| Without prejudice to Ground 1 above, on the facts and circumstances of the case, and in law, Ld. AO has erred in classifying the receipts for GSS maintenance charges of INR 20,33,898 as IT support services connected with licencing of software and taxing the same as ‘Fees for Technical Services’ within the meaning of Article 12 of the Double taxation Avoidance Agreement between India and Portugal referred via protocol to Double Taxation Avoidance Agreement between India and Sweden. | ||
| It is prayed that the addition made by the Ld. AO and confirmed by the Ld. DRP be deleted. | ||
| 4. | Ground 4 | |
| Without prejudice to the above grounds and on the facts and circumstances of the case and in law, should the addition be confirmed Ld. AO has erred in levying education cess on the rate of tax specified in the tax treaty. | ||
| It is prayed that education cess levied by Ld. AO be deleted | ||
| 5. | Ground 5 | |
| Without prejudice to the above grounds and on the facts and circumstances of the case, and in law, should the addition be confirmed Ld. AO has erred in levying interest under section234B of the Income Tax Act, 1961 (‘the Act’) while computing the tax and interest liability on income of the assessee foreign Company. | ||
| It is prayed that the interest under section 234B levied by the Ld. AO be deleted. |
4. Briefly, in the facts of the case, the assessee was non-resident foreign company. The assessee had received IT support services fees of Rs. 1,05,02,525/- from Sandvik Asia Pvt. Ltd. The case of assessee was picked up for scrutiny and the Assessing Officer in draft assessment order observed that the said receipts were not offered to tax. The Assessing Officer was of the view that payment received by assessee constitute fees for technical services as per section 9(1)(vi) and 9(1)(vii) of the Act as well as Article 12 of DTAA between Indian and Switzerland. The Assessing Officer then takes note of the services provided and also notes the fact that in the case of Sandvik Asia Pvt. Ltd. for assessment years 2008-09 and 2009-10 order under section 201(1) and 201 (1A) of the Act was passed and the Assessing Officer held the payment under IT support services to the assessee in the nature of fees for technical services and taxable in India as per Article 12 of DTAA between India and Sweden as well as section 9(1)(vii) of the Act. He then refers to the amendment by the Finance Act, 2012 to the provisions relating to definition of ‘royalty’ i.e. Explanation under section 9(1)(vi) of the Act with retrospective effect from 01.06.1976 and held that reliance placed upon by the assessee on various Judicial pronouncements were no longer good law. He thus, was of the view that the said receipts were taxable in the hands of assessee as ‘royalty’ under DTAA as well as Income Tax Act. He thus, brought income from fees for technical services to tax in the hands of assessee. The assessee filed objections before the Dispute Resolution Panel (DRP), which were rejected and directed the Assessing Officer to assess the license fees received by assessee as ‘royalty’ and the fees for connected IT support services and fees for application development services as fees for technical services. The Assessing Officer was also directed to tax even for other IT support services either as ‘royalty’ or ‘fees for technical services’. The Assessing Officer noted that license fees charged by assessee amounting to Rs. 84,68,627/- and these were held to be IT support services, which fell within ambit of ‘fees for included services’ as also in Article 12(4) of DTAA. Further, the fees for providing GSS maintenance were held to belong to category of connected IT support services and also fell within ambit of ‘fees for included services’ as defined in Article 12(4)(a) of DTAA between India and Portugal and under the provisions of Article 12 of DTAA between India and Sweden and the same was held to be taxable as ‘fees for technical services’ in India.
5. The assessee is in appeal against order of Assessing Officer/DRP.
6. The learned Authorized Representative for the assessee pointed out that the assessee was resident of Sweden and it had provided software services to Sandvik Asia Pvt. Ltd. and had also provided IT support services to the said concern. The case of Revenue was that the provision of software amounted to ‘royalty’ and provision of IT support services amounted to either ‘royalty’ or ‘fees for technical services’. He then pointed out that identical issue arose in the case of payer i.e. Sandvik Asia Pvt. Ltd., wherein though the Assessing Officer had held it to be ‘royalty’ but the DRP had stated it was not case of ‘royalty’. The Revenue then, filed an appeal before the Tribunal and the Tribunal had decided the issue and dismissed the plea of Revenue. The learned Authorized Representative for the assessee pointed out that ground of appeal No.1 raised by assessee against reopening of assessment under section 147 of the Act is not pressed. The issue raised vide grounds of appeal No.2 and 3 is on merits of case and the grounds of appeal No.4 and 5 were consequential in nature. He also pointed out that similar issue on merits has been raised in assessment years 2011-12 and 2013-14 and in assessment year 2011-12, the ground of appeal No.1 on initiation of re-assessment proceedings under section 147 of the Act is not pressed.
7. The learned Departmental Representative for the Revenue on the other hand, placed reliance on the orders of authorities below.
8. We have heard the rival contentions and perused the record. The assessee is non-resident and was providing software services to Sandvik Asia Pvt. Ltd. and also was providing IT support services to the said concern. The question which arises in the present appeal is whether the consideration received by assessee from the payer i.e. Sandvik Asia Pvt. Ltd. amounts to ‘royalty’ or ‘fees for included services’ or ‘fees for technical services under the realm of section 9(1)(vi) of the Act or under the provisions of DTAA between India and Sweden. The Assessing Officer has relied on the order in the case of Sandvik Asia Pvt. Ltd., which is the payer, wherein it was held that the said payment by the said concern to the assessee before us was in the nature of ‘royalty’. The DRP in the said case allowed the claim of said concern i.e. payer, against which the Revenue filed an appeal before the Tribunal. The Tribunal in ITA No.533/PUN/2016, relating to assessment year 2011-12 in a consolidated order with lead case in ITA No.491/PUN/2016, relating to assessment year 2011-12 vide order dated 08.03.2019 held that the payment made by Sandvik Asia Pvt. Ltd. to its associated enterprise Sandvik Tooling Sverige AB for purchase of copyrighted article was not ‘royalty’. The Tribunal in turn, relying on the decisions of Pune Bench of Tribunal in Allianz SE v. Asstt. DIT (International Taxation) [2012] 21 taxmann.com 62/51 SOT 399 (Pune – Trib.) and in John Deere India (P.) Ltd. v. Dy. DIT (International Taxation) [2019] 102 taxmann.com 267 (Pune. – Trib.) held as under:—
’23. The last issue raised by the Revenue vide ground of appeal No.4 is against corporate issue of deleting the disallowance made 40(a)(i) of the Act.
24. Brief facts relating to the issue are that the Assessing Officer had noted that assessee had made payment of Rs. 1,42,75,668/- to its associated enterprise Sandvik Tooling Sverige AB and was of the view that the same was taxable in India as royalty. Since no tax was deducted at source, the Assessing Officer disallowed the said expenditure under section 195 of the Act. The DRP held that there was no transfer of any right in respect of copyright to the assessee and it was case of mere transfer of copyrighted article. The DRP thus, concluded by holding that payment representing purchase price of an article and could not be considered as royalty. In this regard, reliance was placed on the ratio laid down by the Pune Bench of Tribunal in the case of Allianz SE v. ADIT reported in 51 SOT 399 (Pune – Trib.). In the appeal filed by Revenue in the statement of facts filed before the Tribunal, it is mentioned that the decision of DRP was not acceptable as the Department has filed an appeal before the Hon’ble Bombay High Court in the case of Allianz SEv. ADIT (supra) on similar issue and hence, the present ground of appeal being raised.
25. On perusal of record and after hearing both the learned Authorized Representatives, the limited issue which arises vide present ground of appeal is whether the payment made by assessee to its associated enterprise for purchase of copyrighted article is royalty or not.
26. We find that the issue has already been decided by Pune Bench of Tribunal in the case of Allianz SE v. ADIT(supra). Further, the learned Authorized Representative for the assessee has drawn our attention to the invoices raised for providing support services and it is not case of payment of royalty as alleged by the Assessing Officer in this regard. Further, we have also decided similar issue in the case of John Deere India Pvt. Ltd. v. DDIT (International Taxation)in ITA Nos.905 to 908/PUN/2015, relating to assessment years 2007-08 and 2008-09, order dated 23.01.2019. The relevant findings of the Tribunal are in paras 45 to 89 and the Tribunal in final analysis 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 section 9(1)(vi) of the Act. Where the assessee did not acquire any copyright in the software, is not covered under Explanation 2 to section 9(1)(vi) of the Act. We further hold that amended definition of ‘royalty’ under the domestic law cannot be extended to the definition of ‘royalty’ under DTAA, where the term ‘royalty’ originally defined has not been amended. As per definition of ‘royalty’ under DTAA, it is payment received in consideration for use or right to use any copyright of literary, artistic or scientific work, etc.; thus, purchase of copyrighted article does not fall in realm of ‘royalty’. We also hold that since the provisions of DTAA overrides the provisions of Income Tax Act and are more beneficial and the definition of ‘royalty’ having not undergone any amendment in DTAA, the assessee was not liable to deduct tax for payments made for purchase of software. In such scenario, the assessee cannot be held to be in default and the demand created under section 201(1) and interest charged under section 201(1A) of the Act is thus, cancelled.”
27. Following the same parity of reasoning, we find no merit in the ground of appeal No.4 raised by the Revenue and the same is dismissed.’
9. The assessee, non-resident has received consideration against provision of software services from Sandvik Asia Pvt. Ltd. Once the Tribunal has held the same as not royalty either under the Income Tax Act or under DTAA provisions in the hands of payer i.e. Sandvik Asia Pvt. Ltd., consequently the said receipt by the assessee cannot be termed as ‘royalty’ under both the provisions of the Act i.e. section 9(1)(vi)/9(1)(vii) or under Article 12 of the DTAA between India and Sweden. Accordingly, we hold that consideration received by assessee on providing software services is not taxable in its hands. The grounds of appeal No.2 and 3 raised by assessee on merits are thus, allowed. The grounds of appeal No.4 and 5 in respect of levying education cess and levying interest under section 234B of the Act, respectively, are consequential in nature and hence, the same are dismissed. Further, the assessee has not pressed ground of appeal No.1 in assessment years 2010-11 and 2011-12 and hence, the same are also dismissed. The grounds of appeal raised by assessee are thus, partly allowed.
10. The facts and issues in ITA Nos.196/PUN/2017 & 197/PUN/2017 are identical to the facts and issues in ITA No.195/PUN/2017 and our decision in ITA No.195/PUN/2017 shall apply mutatis mutandis to ITA Nos.196/PUN/2017 & 197/PUN/2017.
11. In the result, all the appeals of assessee are partly allowed.
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