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Income Tax Appellate Tribunal, DELHI BENCH ‘D’, NEW DELHI
Before: SH. N. K. BILLAIYA & SH. SUDHANSHU SRIVASTAVA
This appeal by the revenue is preferred against the order of the CIT(A)-42, New Delhi dated 20.07.2017 pertaining to A.Y. 2013-14.
The grievance of the revenue reads as under :-
“1.1 That in the facts and circumstances of the case, and in law, the Ld. CIT(A) erred In deleting the addition made by the AO, and in holding that the revenue received by the assessee from supply of software is not taxable in India as royalty/s 9(l)(vi) of the Income Tax Act, as well as Article 13(3) of the India - France.
1.2 That in the facts and circumstances of the case, and in law, the Ld. CIT(A) erred deleting the addition made by the AO, without considering Explanation 5 and G to section 9(l)(vi), which have been inserted by clarificatory amendments with retrospective effect.
1.3 Thatin the facts and in circumstances of the case, and in law, the Ld. CIT(A)erredin deleting the addition made by the AO, after erroneously considering the claimed adequacy of compensation of Alcatel Lucent India while determining the income of the assessee, and in wrongly applying the ratio of Morgan Stanley 292 ITR416 (SC).
1.4 That in the factand in circumstance of the case, and in law, the Ld. CIT(A) erred in deleting the addition made by the AO by erroneously stating that he has relied on the assessee’s own case, whereas the first scrutiny assessment of Alcatel Lucent International was for 2013-14.
The appellant craves leave to add, modify, amend or alter any ground of appeal at the time of, or before, the hearing of appeal.”
3. At the very outset, the counsel for the assessee stated that the issues raised by the revenue are now well settled in favour of the assessee by the order of the Tribunal in assessee’s own case which was confirmed by the Hon’ble High Court of Delhi and the Hon’ble Supreme Court in a bunch of appeals have confirmed the order of the Hon’ble High Court of Delhi.
The Ld. DR fairly conceded to this.
We have given a thoughtful consideration to the orders of the authorities below qua the dispute under appeal. We have also gone through the judicial decisions referred by the counsel
The findings of the AO given in the assessment order dated 24.05.2016 framed u/s. 143 (3) r.w.s. 144 C of the Act is as under :-
“The equipment supplies made by assessee included both hardware and software; however, the attribution of profit can only be applied to hardware supplies and not to the software supplies. In this connection, assessment order of Alcatel-Lucent France for AY 2006- 07 is being fallowed, wherein after considering the facts and circumstances of the case, it was held that consideration towards software is taxable as royalty as per the Act and under the corresponding provisions of the India France DTAA. In the present proceedings also, the assessee filed detailed submissions as to why the software component of the telecom equipment supplies should not be treated as royalties both under the IT Act as well as the India-France DTAA. The submissions of the assessee are considered but cannot be accepted for the reasons as in earlier years and as such it is held that software supplied by the assessee is taxable as Royalty as per the Act and also under the corresponding provisions of the tax Treaty.”
From the above it can be seen that the AO has followed the assessment order of Alcatel Lucent France for A.Y.2006-07. It would be pertinent to mention here that Alcatel Lucent France has merged with the assessee w.e.f. 26.12.2013.
A similar quarrel was decided by this Tribunal in favour of the assessee and against the revenue in a bunch of appeals in and others vide order dated 04.04.2014. This order of the Tribunal was confirmed by the Hon’ble High court of Delhi in ITA Nos.119 to 157/2015 vide order dated 27.02.2015. The relevant findings of the Hon’ble High Court of Delhi read as under :-
This order of the Hon’ble High Court of Delhi has been upheld by the Hon’ble Supreme Court in a bunch of appeals in the case of Engineering Analysis Centre of Excellence Private Limited vide order dated 02.03.2021 and in the bunch of appeals the assessee is at Civil appeal No.10674 of 2016, 010673 of 2016 and SLP (C) No.28868 of 2016. The relevant findings of the Hon’ble Supreme Court read as under :-
Considering the facts of the case in the light of the decisions mentioned here in above we do not find any merit in this appeal by the revenue and the same is accordingly dismissed.
In the result, the appeal filed by the revenue is accordingly dismissed.
Decision announced in the open court in the presence of both the representatives on 30.06.2021.