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Income Tax Appellate Tribunal, “I” BENCH, MUMBAI
Before: SHRI M. BALAGANESH, AM & SHRI AMARJIT SINGH, JM
O R D E R
PER AMARJIT SINGH, JM:
The assessee has filed the present appeal against the order dated 27.12.2016 passed by the Disputes Resolution Panel -I, Mumbai [hereinafter referred to as the “DRP”] relevant to the A.Y. 2013-14.
The assessee has raised the following grounds of appeal: - “Based on the facts and iii the circumstances of the case and in law, the Appellant respectfully craves leave to prefer an appeal against the assessment order issued by the learned Deputy Commissioner of Income-tax - 2(1)(I) (learned AO') tinder Section 143(3) read with Section I 44C( 13) of the Act ('Assessment order'). in pursuance of the directions issued by the Dispute Resolution Panel - ('Hon'ble DRP'), Mumbai. A.Y.2013-14 On the facts and in the circumstances of the case and in law, the learned AU based on the directions of Hon'ble DRI has; Wrong determination of the total taxable income of the appellant I. erred in determining the total income of the Appellant at Rs.6,36,07,608 as against 'Nil' income declared in the return of income filed by the Appellant for the subject AY; Non-taxability of the income earned by the Appellant as 'royalty' income 2. erred in holding that the income received by the Appellant from provision of software solutions to Celltick Mobile Media (India) Private Limited (Celltick India') for onward distribution to third party customers in India is taxable in India as 'royalty' income tinder Section 9(l)(vi) of the Act; 3. erred in holding that the income received by the Appellant from provision of software solutions to Celltick India for onward distribution Co third party customers in India is taxable in India as 'royalty' income tinder the provisions of Article 12 of the India-Israel Tax Treaty; 4. erred in holding that the income received by the Appellant from provision of software solutions to Celltick India for onward distribution to third party customers in India is taxable in India as 'royalty' income under the provisions of Article 12 of the India-Israel Tax Treaty, without appreciating the fact that there is no 'use' or 'right to use' of the 'copyright' in the software solutions provided by the Appellant to celltick India for onward distribution to third party customers in India; 5. erred in holding that the income received by the Appellant from provision of the software solutions for onward distribution to third party customers in India is taxable in India as 'royalty' income under the provisions of Article 12 of the India-Israel Tax Treaty, without appreciating the fact the definition of the term 'royalty' under the India- Israel Tax Treaty is restrictive in nature as compared to the 'royalty' definition tinder the Act; Wrongly treating Celltick India as a Dependent Agent Permanent Establishment ‘DAPE') of the Appellant in India and taking the income of the Appellant as business profits' under the India-Israel Tax Treaty 6. erred in holding that Celltick India is the DAVE of the Appellant in India under Article 5 of the India-Israel Tax Treaty and taxing the income received by the Appellant as 'business profits' under Article 7 of the India-Israel Tax Treaty; A.Y.2013-14 7. erred in holding that Celliick India is the DAVE of the Appellant in India under Article 5 of the India-Israel Tax Treaty' without appreciating the fact that the agreement between the Appellant and Celltick India. and, between Celltick India and third party customers, are entered on a principal to principal basis and hence, Celltick India cannot be treated as a DAPE of the Appellant in India; S. erred in holding that Celltick India is the DAPE of the Appellant in India under Article 5 of the India-Israel Tax Treaty without appreciating the fact that the conditions prescribed in Article 5(5) of the India-Israel Tax Treaty for treating Celltick India as a DAVE of the Appellant are not satisfied; Wrong attribution of income and profits to the alleged DAPE of the Appellant in India Without prejudice to ground No. 6 to 10 above, even assuming (without admitting) that the Appellant has a DA PE in India; 9. erred in attributing further income to the alleged DAVE. without appreciating the fact that the alleged DAPE has been compensated at an arm's length price; 10. erred in attributing 50 percent of the gross revenues of the Appellant as being attributable to the alleged DAVE in India, on an arbitrary and ad-hoc basis, without appreciating the fact that additional attribution of 50 percent of the gross receipts of the Appellant from Celltick India would tantamount to a total attribution of 75 percent of the gross revenues to the alleged DAVE in India; 11. erred in attributing 50 percent of the gross revenues of the Appellant from third party customers in India to the alleged DAVE. without appreciating the fact that the said receipts are not attributable to the alleged DAVE of the Appellant; 12. erred in estimating the profits of the alleged DAPE of the Appellant at 40 percent of the gross revenues of the Appellant, on an arbitrary, and ad-hoc basis; Short rant of TDS credit 13. erred in granting snort credit of the IDS of Rs.49,57,443 while computing the tax liability of the Appellant for the subject AY: Wrong computation of interest under Section 234A of the Act 14. erred in computing interest under Section 234A of the Act; A.Y.2013-14 Wrong computation of interest under Section 234B of the Act 15. erred in computing interest under Section 234B of the Act; Initiation of penalty proceedings under Section 271(1)(e) of the Act 16. erred in initiating penalty proceedings under Section 271(1)(c) of the Act, on the ground that the Appellant has concealed and furnished inaccurate particulars of its income. Each of the above ground is independent and without prejudice to one another. The Appellant craves leave to add, to alter, to amend or to delete any or all of the above grounds of appeal, at or prior to hearing of the appeal so as to enable the Income Tax Appellate Tribunal to decide the appeal according to law. The Appellant prays that appropriate relief be granted based on the above grounds of appeal and the facts and circumstances of the case."
3. The brief facts of the case are that the appellant company was incorporated in Israel and was engaged in the business of developing software and marketing active content from mobile phones all over the world. During the year under consideration, assessee earned the revenue from providing of its software solutions to an India concern, namely, Celltick Mobile Media(India) Pvt. Ltd. who was its 100% subsidiary for onward distribution to third party customers. In some cases, the assessee was also providing software solution to third party customers directly. The intellectual property rights related to the software solution was admittedly owned by the assessee. In the return of income, the assessee asserted the receipts from provision of such software solutions earned from India amounting to Rs.15,90,19,023/- which was not liable to be taxable as „Royalty‟ or „Fee for Technical Services‟ or „Business Profits‟. The AO issued the notice to the assessee company and after the reply of the assessee, the AO considered the 50% of the receipt as being attributable to the activities ITA No. 1837/M/2017 A.Y.2013-14 of the PE in India. Thus, out of the total receipt of Rs.15,90,19,023/-, 50% was considered as being attributable to the assessee PE in India which comes to the tune of Rs.7,95,09,511/-. The AO also assessed the 20% of such receipt as expenditure incurred and accordingly quantified the total income liable to be taxed in India in sum of Rs.6,36,07,608/-. Against the draft assessment order, assessee raised the objection before the DRP and finally passed the assessment order dated 24.01.2017 u/s 144C(13) r.w.s. 143(3) of the I.T. Act, 1961 in terms of the directions of the DRP dated 27.12.2016. The DRP held that the income is liable to be taxable in India as „Business Profit‟ in terms of Article 7 of the India-Israel Tax Treaty and further that the subsidiary i.e. Celltick India, constituted a dependent agent PE of the assessee in India. The DRP upheld the estimation made by the AO. Hence, the present appeal has been filed before us. ISSUE NO. 1 4. Issue no. 1 is general in nature which nowhere required any adjudication. ISSUE Nos 9.
5. At the very outset, the Ld. Representative of the assessee has argued that the issue has squarely been covered by the decision of the Hon‟ble ITAT in the assessee‟s own case for the A.Y. 2012-13 in IT(TP)A. No.883/M/2016 dated 28.02.2019, therefore, in the said circumstances, the issues are liable to be decided in favour of the assessee. However, on the other hand, the Ld. Representative of the A.Y.2013-14 Department has refuted the said contention. The copy of order dated 28.02.2019 is on the file and the relevant finding has been given as under: - “7. We have carefully considered the rival submissions. The appellant before us is a tax resident of Israel and in terms of the arrangement with its subsidiary in India, i.e. Celltick India, it is engaged in providing software solutions for onward distribution to third party customers in India. In terms of such arrangement effective from March, 2011, a copy of which has been placed in the Paper Book at pages 5 to 18, it emerges that the price realized from the ultimate customer is shared between the assessee and its Indian subsidiary, i.e. Celltick India, on 50-50 basis. The Assessing Officer has characterised such receipts as ‘Royalty’ in the draft assessment order, whereas the DRP treated the same as ‘business profits’ in terms of Article 7 of India-Israel Tax Treaty. Be that as it may, for the present, the issue relating to characterisation of income is not being contested by the assessee as it has sought to challenge the untenability of the addition only on the basis of the proposition that once ‘arm’s length principle’ has been satisfied qua the relevant transactions, there can be no further profits attributable to the assessee in India even if it has a PE in India. While canvassing such proposition, assessee also does not bring into question the stand of the Revenue that there is a PE of the assessee in India. The point sought to be made by the assessee is that the compensation remaining with the Indian subsidiary, i.e. Celltick India, is adequate and justified on the basis of the Transfer Pricing analysis, and the same has been so accepted by the incometax authorities in the case of Celltick India for the very same assessment year. In this regard, a copy of the order of TPO dated 25.01.2016 (supra) in the case of Celltick India has also been placed in the Paper Book at pages 123 to 124. Therefore, according to the assessee, no further income could be attributable to it on account of its PE in India. In our considered opinion, the proposition sought to be canvassed by the assessee has the approval of the Hon'ble Supreme Court in the case of Morgan Stanley & Co. (supra). In fact, in a subsequent judgment in the case of E-Funds IT Solution Inc. (supra), the Hon'ble Supreme Court reiterated the earlier proposition laid down in the case of Morgan Stanley & Co. (supra), and in doing so, it took into consideration the transfer pricing assessment made in the case of the Indian subsidiary. In that case too, in the case of the Indian subsidiary, the transaction with the foreign assessee was accepted to be at an arm’s length price. Accordingly, it was held by the Hon'ble Supreme Court that the ‘arm’s length principle’ stood satisfied and, therefore, no further profits could be attributable even if there existed a PE of the foreign assessee in India. A.Y.2013-14 In our considered opinion, the manner in which the proposition has been applied by the Hon'ble Supreme Court in the case of E-Funds IT Solution Inc. (supra) is clearly attracted in the present case too. In the present case also, the transactions of the assessee with its Indian subsidiary, i.e. Celltick India, have been found to be at an arm’s length price by the income-tax authorities in the case of the Indian subsidiary, i.e. Celltick India for the instant assessment year.
In view of the aforesaid discussion, in our view, since the appropriate ‘arm’s length principle’ has been satisfied in the present case, nothing more would be left to be taxable in India by attributing any further income to the PE of the assessee in India. Therefore, the point raised by the assessee by way of Ground of appeal
no. 11 is allowed and the Assessing Officer is directed to delete the addition of `5,75,43,604/- made to the returned income. We hold so.”
6. Since the issue has been squarely covered by the decision of Hon‟ble ITAT in the assessee‟s own case for the A.Y. 2012-13 dated 28.02.2019 (supra), therefore, we allowed the claim of the assessee and direct the assessee to delete the addition in sum of Rs.6,36,07,608/-.
ISSUE NOs. 2 to 8
Since the issue no. 9 has been decided in favor of the assessee, therefore, in the said circumstances, these issues have become academic in nature, hence, nowhere required to be decided.
ISSUE NOs. 10 to 15
8. Since the issue no. 9 has been decided in favor of the assessee, therefore, in the said circumstances, these issues have become academic in nature, hence, nowhere required to be decided.