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Income Tax Appellate Tribunal, “I” Bench, Mumbai
Before: Shri M.Balaganesh & Shri Ravish Sood
O R D E R
PER RAVISH SOOD, JM
The present appeal filed by the assessee is directed against the order passed by the A.O under Sec. 143(3) r.w.s 144C(13) of the Income Tax Act, 1961 (for short „I-T Act‟), dated 26.04.2017. The assessee assailing the assessment framed by the A.O pursuant to the directions of the Dispute Resolution Panel-1, Mumbai (for short „DRP‟) under Sec.144C(5) of the I.T Act, dated 29.03.2017 has raised before us the following grounds of appeal: “Based on the facts and in 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)(1) ('learned AO') under Section 143(3) read with Section 144C(13) of the Act P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax ('Assessment order'), in pursuance of the directions issued by the Dispute Resolution Panel -
1. ('Hon'ble DRP'), Mumbai. On the facts and in the circumstances of the case and in law, the learned AO based on the directions of Hon'ble DRP has: Wrong determination of the total taxable income of the Appellant
1. erred in determining the total income of the Appellant at Rs.6,52,66,290/- 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 ('Celli.ick India') for onward distribution to third party customers in India is taxable in India as 'royalty' income under Section 9(1)(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 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; 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 that the definition of the term 'royalty' under the India-Israel Tax Treaty is restrictive in nature as compared to the 'royalty' definition under the Act; Wrongly treating Celltick India as a Dependent Agent Permanent Establishment (‘DAPE’) of the Appellant in India and taxing the income of the appellant as ‘business profits’ under the India- Israel Tax Treaty 6. erred in holding that Celitick India is the DAPE 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; 7. 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 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; 8. erred in holding that Celitick 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 DAPE 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 8 above, even assuming (without admitting) that the Appellant has a DAPE in India; 9. erred in attributing further income to the alleged DAPE, 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 DAPE 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 DAPE in India; 11. 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 without appreciating the global financial loss position of the Appellant for the subject year under consideration: Initiation of penalty proceedings under Section 271(1)(c) of the Act 12. 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.”
P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax 2. Briefly stated, the assessee which is a foreign company incorporated in Israel is engaged in the business of developing software and marketing active content for mobile phones across the globe. The assessee had filed its return of income for A.Y. 2014-15 on 28.11.2014, declaring total income at Rs. Nil. As per the return of income the assessee had claimed a refund of Rs. 93,32,756/-. Subsequently, the case of the assessee was selected for scrutiny assessment. The A.O as per his draft assessment order passed under Sec. 144C(1) r.w.s 143(3), dated 06.12.2016 proposed to assess the income of the assessee at an amount of Rs. 6,52,66,294/-. Aggrieved, the assessee filed objections with the Dispute Resolution Panel-1, Mumbai (for short „DRP‟), who not finding favour with the contentions advanced by the assessee upheld the proposed action of the A.O.
The facts involved in the present case lies in a narrow compass. As stated hereinabove, the assessee which is carrying on the business of developing and marketing active content for mobile phones across the globe is engaged with more than 50 major operators across three continents. As for the year under consideration, the assessee was providing “Live Screen Media technology software solutions” to the telecom operators. The software solutions provided by the assessee allowed telecom operators, advertisers and content providers to send interactive content to mobile phones, which were otherwise not able to access such content. The copyright in the software solutions was at all times owned, developed and maintained by the assessee.
During the course of the assessment proceedings, it was observed by the A.O, that the assessee was marketing and distributing its software solutions and also providing certain support services in India through a company incorporated in India viz. M/s Celltick Mobile Media (India) Pvt. Ltd. As per the facts discernible from the P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax records, it was gathered by the A.O that the assessee during the year had earned income from provision of its software solutions to M/s Celltick Mobile Media (India) Pvt. Ltd. for onward distribution to third party customers in India. The A.O held a conviction that the amount received by the assessee from providing the software solutions to its third party customers in India constituted sale of copyright right, and not sale of a copyrighted article. Accordingly, the A.O concluded that the amount of Rs.16,31,65,734/- that was received by the assessee from the provision of software solutions to the telecom operators in India was towards „royalty‟ both as per the provisions of the I-T Act and the India-Israel tax treaty. Further, the A.O was of the view that M/s Celltick Mobile Media (India) Pvt. Ltd. was the dependant agent PE of the assessee in India. As such, the A.O being of the view that the assessee had generated the revenue from provision of software solutions to its third party customers in India with the joint efforts of its PE in India viz. M/s Celltick Mobile Media (India) Pvt. Ltd., thus, attributed 50% of the total receipts of the assessee to the said Indian PE. Further, in absence of any specific details, the A.O allowed a deduction of 20% towards expenses and assessed the balance receipts of Rs.6,52,66,294/- attributable to the Indian PE as the „business income‟ of the assessee that was liable to be taxed in India.
The A.O after receiving the order of the DRP framed the assessment under Sec.143(3) r.w.s 144C(13), dated 26.04.2017 and assessed the total income of the assessee at Rs.6,52,66,294/-.
Aggrieved, the assessee has carried the matter in appeal before us. The ld. Authorized Representative (for short „A.R‟) for the assessee took us through the facts of the case. It was submitted by the ld. A.R that the assessee had earned revenue from provision of its software solutions to M/s Celltick Mobile Media (India) Pvt. Ltd. for onward P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax distribution of the same to its third party customers. Apart there from, it was submitted by the ld. A.R that in certain cases revenue was earned directly from third party customers in India. It was submitted by the ld. A.R that the assessee owned all the intellectual property rights related to the software solutions, and also owned, developed and maintained the software solutions at all times. It was submitted by him that the A.O/DRP by misconceiving the facts had arrived at erroneous observations viz. (i). that, the provision of software solutions by the assessee constituted sale of copyright right and not sale of copyrighted article; and (ii). that, the Indian subsidiary of the assessee viz. M/s Celltick Mobile Media (India) Pvt. Ltd. was working as a PE of the assessee in India. It was submitted by the ld. A.R that the A.O/DRP had concluded that as the revenue earned by the assessee was on account of its joint effort with its dependant agent PE viz. M/s Celltick Mobile Media (India) Pvt. Ltd., therefore, 50% of its receipts could reasonably be attributed to India. It was submitted by the ld. A.R that a similar issue in the backdrop of identical facts was involved in the appeal of the assessee for A.Y. 2012-13. The ld. A.R took us through the assessment order for the year under consideration, and submitted, that the A.O while framing the assessment had followed the view taken by his predecessor in A.Y. 2012-13. It was submitted by the ld. A.R that the assessment framed by the A.O in A.Y. 2012-13 was assailed by the assessee on identical grounds before the Tribunal viz. (i) that, the revenue earned by the assessee from provision of its software solutions to M/s Celltick Mobile Media (India) Pvt. Ltd. for onward distribution to third party customers in India did not constitute „royalty‟ under the India-Israel tax treaty; (ii) that, the Indian subsidiary of the assessee viz. M/s Celltick Mobile Media (India) Pvt. ltd. was not working as a dependant agent PE of the assessee in India; and (iii) alternatively, as 50% of the receipts from P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax the customers that was paid by the assessee to its Indian subsidiary viz. M/s Celltick Mobile Media (India) Pvt. Ltd., was reported by the latter as an international transaction within the meaning of Sec.92B, which on a reference to the TPO was accepted as being at „arms length‟, therefore, no further income was attributable to the said Indian subsidiary. The ld. A.R further took us through the „Distribution agreement‟ between the assessee and M/s Celltick Mobile Media (India) Pvt. Ltd., as per which 50% of the gross amount received by the assessee from the customers which had contracted with M/s Celltick Mobile Media (India) Pvt. Ltd. was to be paid to the latter. It was averred by the ld. A.R that now when the Indian subsidiary of the assessee viz. M/s Celltick Mobile Media (India) Pvt. Ltd. was during the year under consideration remunerated by the assessee as per the same terms, as in A.Y 2012-13, i.e on 50:50 basis, therefore, the transaction during the year under consideration was also at „arms length‟. In support of his aforesaid contention the ld. A.R relied on the order passed by the Tribunal in the assesses own case for A.Y. 2012- 13 and took us through the relevant observations of the Tribunal in the said case. It was admitted by the ld. A.R that though during the year under consideration viz. A.Y. 2014-15 the case of the Indian subsidiary viz. M/s Celltick Mobile Media (India) Pvt. Ltd. was not referred by the A.O to the Transfer Pricing Officer (for short „TPO‟), however, as there was no change in the FAR analysis and the overall functions of the Indian subsidiary of the assessee viz. M/s Celltick Mobile Media (India) Pvt. Ltd in the said respective years had remained the same, therefore, the compensation of the Indian subsidiary by the assessee on the same basis could safely be held to be at arm‟s length. Apart there from, it was submitted by the ld. A.R that M/s Celltick Mobile Media (India) Pvt. Ltd. had for A.Y. 2015-16 to A.Y 2019-20 entered into an “Advance Pricing Agreement” (for short “APA”) with the P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax CBDT. The ld. A.R drew our attention to the functions of M/s Celltick Mobile Media (India) Pvt. Ltd. as stated in the „APA‟, which inter alia included “market and sale of various software solutions” of the assessee company. It was submitted by the ld. A.R, that the ALP of the transactions covered by the „APA‟ up to INR 50 cr. was to be taken @ 7% of its „Operating revenue‟. It was averred by the ld. A.R, that as the operating revenue of M/s Celltick Mobile Media (India) Pvt. Ltd. during the year under consideration viz. A.Y 2014-15 was Rs.32,71,03,165/-, therefore, the ALP of the covered transactions @ 7% worked out at Rs.2,30,20,874/-. It was thus submitted by the ld. A.R that as M/s Celltick Mobile Media (India) Pvt. Ltd. had shown a profit of Rs.3,65,52,479/- as per its profit and loss account for the year under consideration, therefore, the same was higher than the ALP of the covered transactions.
Per contra, the ld. Departmental Representative (for short „DR‟) relied on the orders of the lower authorities. It was submitted by the ld. D.R that the assessee had not shown any basis as per which the profitability and income attribution was to be estimated. In support of his aforesaid contention the ld. D.R took us through the relevant observations of the DRP. It was further averred by the ld. D.R that FAR analysis in the case of the Indian subsidiary viz. M/s Celltick Mobile Media (India) Pvt. Ltd. was not done by the TPO during the year under consideration.
8. The ld. A.R rebutted the contentions advanced by the counsel for the revenue. The ld. A.R further took us through the assessment order wherein Rule 10 was reproduced. Further, it was submitted by the ld. A.R, that a perusal of the „APA‟ revealed that the revenue had accepted that the functions carried out by M/s Celltick Mobile Media (India) Pvt. Ltd. were to be remunerated at a specific percentage. Accordingly, it P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax was submitted by him that as the assessee during the year under consideration i.e A.Y 2014-15 had shown income in excess of that as was worked out on the basis of the APA, therefore, no adverse inferences were liable to be drawn in its hands. It was submitted by the ld. A.R that he was confining his contention only as regards his alternative claim that now when the Indian subsidiary of the assessee viz. M/s Celltick Mobile Media (India) Pvt. Ltd., as in A.Y. 2012-13, was remunerated at „arms length‟ by the assessee, therefore, no further income could be attributed to the said Indian subsidiary. It was averred by the ld. A.R that the said issue was squarely covered by the order of the Tribunal in its own case for A.Y. 2012-13. Further, in support of his contention that a subsequent „APA‟ would also have a bearing on the earlier years, reliance was placed by the ld. A.R on the order of a coordinate bench of the Tribunal in the case of 3i India Pvt. Ltd. Vs. DCIT (ITA No. 581/Mum/2015, dated 16.09.2016). Also, reliance was placed by the ld. A.R on the order of the Tribunal in the case of Sabre Asia Pacific Pte. Ltd. Vs. DCIT [International Taxation -1(1)], Mumbai (2018) 91 taxman.com 434 (Mum).
We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record. As observed by us hereinabove, the assessee is a tax resident of Israel. The assessee in terms of its arrangement with its Indian subsidiary viz. M/s Celltick Mobile Media (India) Pvt. Ltd. was during the year under consideration engaged in providing software solutions for onward distribution to third party customers in India. As per the terms of the „distribution agreement‟, it stands revealed that the amount realised by the assessee from the customers was shared between the assessee and its Indian subsidiary viz. M/s Celltick Mobile Media (India) Pvt. Ltd. on 50:50 basis. We find that pursuant to the directions of the DRP, the A.O had assessed the receipts as the P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax „business profits‟ of the assessee in terms of Article 7 of the India- Israel tax treaty. The ld. A.R had in the case before us confined his contentions to the aspect that the addition made by the A.O/DRP was untenable, for the reason, that once the „arms length‟ principle had been satisfied qua the relevant transaction between the assessee and its Indian subsidiary viz. M/s Celltick Mobile Media (India) Pvt. Ltd., then, no further profits could be attributed to the assessee in India, even if it was to be held that the latter had a PE in India. At this stage, we may herein observe that the assessee while canvassing the aforesaid contention had not assailed the observations of the lower authorities that the assessee had a PE in India. In sum and substance, it is the claim of the assessee that now when during the year the Indian subsidiary of the assessee viz. M/s Celltick Mobile Media (India) Pvt. ltd. as in A.Y. 2012-13 was remunerated by the assessee on a sharing of the amounts realised from its ultimate customers on 50:50 basis, therefore, in the absence of any change in the FAR analysis and the overall functions of the Indian subsidiary viz. M/s CElltick Mobile Media (India) Pvt. Ltd which remained the same, it could safely be concluded that the profit attributed to the Indian subsidiary viz. M/s Celltick Mobile Media (India) Pvt. Ltd. during the year under consideration duly satisfied the „arms length‟ principle. We find that the issue that where the attribution of profits to the Indian subsidiary of the assessee i.e M/s Celltick Mobile Media (India) Pvt. ltd. was found to be adequate and justified on the basis of the transfer pricing analysis, then, no further income could be attributed to it is squarely covered by the order of the Tribunal in the assesses own case for A.Y 2012-13. The Tribunal while disposing off the appeal of the assessee for A.Y. 2012-13, had observed 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 P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax 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 realised 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 income tax 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. 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 Rs.5,75,43,604/- made to the returned income. We hold so.”
10. Apart there from, we find that the Indian subsidiary of the assessee viz. M/s Celltick Mobile Media (India) Pvt. Ltd. had for A.Y. 2015-16 to A.Y 2019-20 entered into an „APA‟ with the CBDT. As is discernible from the „APA‟, the functions of the subsidiary company inter alia included “marketing and sale of various software solutions”
P a g e | Celltick Technologies Ltd. Vs. The Deputy Commissioner of Income Tax of the assessee company. As per the „APA‟ the operating profit margin of M/s Celltick Mobile Media (India) Pvt. Ltd. up to its revenue of Rs. 50 crore was to be taken at 7% of its „Operating revenue‟. Admittedly, the FAR analysis and overall functions of the subsidiary company i.e M/s Celltick Mobile Media (India) Pvt. ltd. had remained the same during the period covered by the „APA‟ and that for the year under consideration i.e A.Y 2014-15. Though, the APA in the case of the assessee had been entered into for the period spread over A.Y. 2015- 16 to A.Y 2019-20, however, as held by the ITAT, Mumbai in the case of 3i India Pvt. Ltd. Vs. DCIT (ITA No. 581/Mum/2015, dated 16.09.2016), a subsequent „APA‟ would also have a bearing on the earlier years. Accordingly, we find that the ALP of the transactions covered by the „APA‟ up to INR 50 cr. was to be taken @ 7% of its operating revenue. As such, as the operating revenue of M/s Celltick Mobile Media (India) Pvt. Ltd. during the year under consideration viz. A.Y 2014-15 was Rs.32,71,03,165/-, therefore, the ALP of the covered transactions @ 7% worked out at Rs.2,30,20,874/-. As against the aforesaid ALP, the Indian subsidiary of the assessee viz. M/s Celltick Mobile Media (India) Pvt. Ltd. had shown a profit of Rs.3,65,52,479/- as per its profit and loss account for the year under consideration. Accordingly, we are of the considered view that as the income disclosed by M/s Celltick Mobile Media (India) Pvt. Ltd. is higher than the ALP as per its „APA‟ for the succeeding years, therefore, no further income on the said count also could be attributed to it.
We thus finding ourselves to be in agreement with the view taken by the Tribunal in the assesses own case for A.Y 2012-13, thus, conclude that now when the amount remunerated by the assessee to M/s Celltick Mobile Media (India) Pvt. Ltd. is found to be satisfying the „arms length‟ principle, therefore, no further profits could be attributed to the assessee in India even if it was to be held that the latter had a