MUDRA ONLINE TECHNOLOGIES PRIVATE LIMITED,MUMBAI vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-14(2)(2),MUMBAI, MUMBAI
Facts
The assessee, engaged in advertising and wind energy generation, made payments of Rs.15,60,955/- to Facebook Ireland Ltd. for digital advertising services. The assessee did not deduct tax at source on these payments. The Assessing Officer treated these payments as royalty, disallowed the expenses under Section 40(a)(i) of the Income Tax Act, 1961, and the CIT(A) upheld this disallowance.
Held
The Tribunal held that the assessee failed to provide any agreement or MOU with Facebook Ireland Ltd. for the services availed. The nature of the transaction and whether the payments were royalty could not be verified without these documents. The Tribunal noted that Facebook's platform uses patented technology and algorithms to analyze user data for targeted marketing, which could be construed as royalty.
Key Issues
Whether the payment made to Facebook Ireland for digital advertising services constitutes royalty income, and if so, whether the disallowance of expenses for non-deduction of TDS is justified.
Sections Cited
40(a)(i), 9(1)(vi), 143(3)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI SUNIL KUMAR SINGH
PER OM PRAKASH KANT, AM
This appeal by the assessee is directed against order dated 30.04.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2015-16, raising following grounds:
Mudra Online Technologies Pvt. Ltd. Mudra Online Technologies 2 ITA No. 3164/MUM/2024
On the facts and circumstances of the case as well as in law, the On the facts and circumstances of the case as well as in law, the On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the actions of the Learned CIT(A) has erred in confirming the actions of the Learned CIT(A) has erred in confirming the actions of the Learned Assessing officer in disallowing the payment made to Facebook Ireland Assessing officer in disallowing the payment made to Facebook Ireland Assessing officer in disallowing the payment made to Facebook Ireland Ltd. amounting toRs.15,60,955/ Ltd. amounting toRs.15,60,955/-u/s.40(a)i) of the Income Tax Act, 1961, u/s.40(a)i) of the Income Tax Act, 1961, on the alleged plea that the TDS was not deducted, without considering on the alleged plea that the TDS was not deducted, without considering on the alleged plea that the TDS was not deducted, without considering the facts and circumstances of the the facts and circumstances of the case. 2 On the facts and circumstances of the case as well as in law, the 2 On the facts and circumstances of the case as well as in law, the 2 On the facts and circumstances of the case as well as in law, the Learned CIT(A) has erred in confirming the actions of the Learned Learned CIT(A) has erred in confirming the actions of the Learned Learned CIT(A) has erred in confirming the actions of the Learned Assessing officer in making an addition ofRs.15,60,955/ Assessing officer in making an addition ofRs.15,60,955/- by making the disallowance of the said payment to Face book disallowance of the said payment to Face book Ireland Ltd. u/s.40(a)(i) of Ireland Ltd. u/s.40(a)(i) of the Act without appreciating the fact that the said paymerit was not in the the Act without appreciating the fact that the said paymerit was not in the the Act without appreciating the fact that the said paymerit was not in the nature of Royalty, thus attracting provisions for Tax Deduction. nature of Royalty, thus attracting provisions for Tax Deduction. nature of Royalty, thus attracting provisions for Tax Deduction. 3 On the facts and circumstances of the case as well as in law, the On the facts and circumstances of the case as well as in law, the On the facts and circumstances of the case as well as in law, the Learned CIT(A) ha Learned CIT(A) has erred in confirming the actions of the Learned s erred in confirming the actions of the Learned Assessing officer in making an addition of Rs.15,60,955/ Assessing officer in making an addition of Rs.15,60,955/- bỷ making the disallowance of the said payment to Facebook Ireland Ltd. u/s.40(a)(i) of disallowance of the said payment to Facebook Ireland Ltd. u/s.40(a)(i) of disallowance of the said payment to Facebook Ireland Ltd. u/s.40(a)(i) of the Act without appreciating the fact that the said payment w the Act without appreciating the fact that the said payment w the Act without appreciating the fact that the said payment was for merely digital advertising and no right of user or access of the Facebook Ad digital advertising and no right of user or access of the Facebook Ad digital advertising and no right of user or access of the Facebook Ad Platform had: been made available to the Appellant by the Advertiser by Platform had: been made available to the Appellant by the Advertiser by Platform had: been made available to the Appellant by the Advertiser by virtue of the same. virtue of the same. 2. Briefly stated, facts of the case are that the assessee company Briefly stated, facts of the case are that the assessee company Briefly stated, facts of the case are that the assessee company was engaged in the business of advertising agency related services n the business of advertising agency related services n the business of advertising agency related services and wind energy generation. For the year under consideration, the and wind energy generation. For the year under consideration, the and wind energy generation. For the year under consideration, the assessee filed return of income on 28.11.2015 declaring total assessee filed return of income on 28.11.2015 declaring total assessee filed return of income on 28.11.2015 declaring total income at Rs.11,21,15,120/ income at Rs.11,21,15,120/-. Subsequently, the return of income . Subsequently, the return of income filed by the assessee was selected for scrutiny assessment and he assessee was selected for scrutiny assessment and he assessee was selected for scrutiny assessment and statutory notices under the Income statutory notices under the Income-tax Act, 1961 (in short ‘the Act’) tax Act, 1961 (in short ‘the Act’) were issued and complied with. In the course of scrutiny, the were issued and complied with. In the course of scrutiny, the were issued and complied with. In the course of scrutiny, the Assessing Officer noticed that the assessee made payments of Assessing Officer noticed that the assessee made payments of Assessing Officer noticed that the assessee made payments of Rs.15,60,955/- to to ‘Facebook Ireland Ltd’.(in short ‘Facebook (in short ‘Facebook Ireland’) for digital advertising etc services availed. Ireland’) for digital advertising etc services availed. But, no tax was deducted at source on on said payments. The Assessing Officer asked . The Assessing Officer asked the assessee to file the assessee to file a copy of any agreement or Memorandum of copy of any agreement or Memorandum of Understanding (MoU) entered into with standing (MoU) entered into with ‘Facebook Ireland’ Ireland’ in respect
Mudra Online Technologies Pvt. Ltd. Mudra Online Technologies 3 ITA No. 3164/MUM/2024
of services availed. However, no such agreement was filed by the of services availed. However, no such agreement was filed of services availed. However, no such agreement was filed assessee. The Assessing Officer therefore, in absence of any . The Assessing Officer therefore, in absence of any . The Assessing Officer therefore, in absence of any agreement relied on the material available on the internet and agreement relied on the material available on the internet and agreement relied on the material available on the internet and observed that ‘Facebook advertising ‘Facebook advertising platform’ is driven by a complex driven by a complex algorithm that capture data from various users and allows the algorithm that capture data from various users and allows the algorithm that capture data from various users and allows the advertiser to effectively reach his target audience. The Assessing r to effectively reach his target audience. The Assessing r to effectively reach his target audience. The Assessing Officer referred to definition of the Officer referred to definition of the ‘royalty’ provided u/s 9(1)(vi) of provided u/s 9(1)(vi) of the Act and opined that the Act and opined that ‘Facebook Ireland’ has granted has granted he assessee company a right to use right to use ‘Facebook Advertising platform platform’ which is a complicated and sophisticated computer complicated and sophisticated computer program. A program. Accordingly, the assessee has been granted the license assessee has been granted the license to use said software of to use said software of advertising platform. Therefore, the payment made by the assessee platform. Therefore, the payment made by the assessee platform. Therefore, the payment made by the assessee is consideration on account of license is consideration on account of license to use/right to to use/right to use computer program which squarely falls within the meaning of clause (v) to squarely falls within the meaning of clause (v) to squarely falls within the meaning of clause (v) to Explanation 2 to section 9(1)(vi) of the Act and therefore, Assessing Explanation 2 to section 9(1)(vi) of the Act and therefore, Assessing Explanation 2 to section 9(1)(vi) of the Act and therefore, Assessing Officer treated the payments in the nature of payments in the nature of royalty. The Assessing royalty. The Assessing Officer further referred to the Double Officer further referred to the Double Taxation Avoidance Agreement Taxation Avoidance Agreement (DTAA) between India and Ireland and observed that under the (DTAA) between India and Ireland and observed that under the (DTAA) between India and Ireland and observed that under the DTAA also payment for use of or the right to use DTAA also payment for use of or the right to use of any copyright is any copyright is in the nature of royalty. in the nature of royalty. Since the assessee failed to deduct tax at Since the assessee failed to deduct tax at source on said royalty paym source on said royalty payments, the Assessing Officer disallowed the Assessing Officer disallowed expenses of Rs.15,60,955/ expenses of Rs.15,60,955/- incurred invoking section 40(a)(i) of the incurred invoking section 40(a)(i) of the Act vide his order dated 31.12.2017 passed u/s 143(3) of the Act. Act vide his order dated 31.12.2017 passed u/s 143(3) of the Act. Act vide his order dated 31.12.2017 passed u/s 143(3) of the Act.
Mudra Online Technologies Pvt. Ltd. Mudra Online Technologies 4 ITA No. 3164/MUM/2024
On further appeal, the Ld. CIT(A) also upheld the disallowance On further appeal, the Ld. CIT(A) also upheld the disallowance On further appeal, the Ld. CIT(A) also upheld the disallowance observing as under:
“7.1. These grounds of appeal filed by the appellant relate to 7.1. These grounds of appeal filed by the appellant relate to 7.1. These grounds of appeal filed by the appellant relate to disallowance of the payment made of Rs. 15,60,955/ disallowance of the payment made of Rs. 15,60,955/- to Face book to Face book Ireland Ltd. u/s.40(a)(i) of the Act. The appellant has contested that the Ireland Ltd. u/s.40(a)(i) of the Act. The appellant has contested that the Ireland Ltd. u/s.40(a)(i) of the Act. The appellant has contested that the disallowance was made without considering the fa disallowance was made without considering the facts of the case. cts of the case. Further the appellant has also claimed that the said payments were Further the appellant has also claimed that the said payments were Further the appellant has also claimed that the said payments were made towards the digital advertisement and was not in the nature of made towards the digital advertisement and was not in the nature of made towards the digital advertisement and was not in the nature of Royalty payment. Royalty payment. 7.2 As noticed from the assessment order, the AO has considered the As noticed from the assessment order, the AO has considered the As noticed from the assessment order, the AO has considered the payment made to the payment made to the Facebook Ireland Limited as Royalty in nature Facebook Ireland Limited as Royalty in nature and the discuss the issue in depth. During the course of the assessment and the discuss the issue in depth. During the course of the assessment and the discuss the issue in depth. During the course of the assessment proceeding, the appellant was asked to produce any agreement copy or proceeding, the appellant was asked to produce any agreement copy or proceeding, the appellant was asked to produce any agreement copy or Mou entered with the Facebook Ireland Limited, however the appellant Mou entered with the Facebook Ireland Limited, however the appellant Mou entered with the Facebook Ireland Limited, however the appellant failed to submit any detail in this regard. The same was recorded in the failed to submit any detail in this regard. The same was recorded in the failed to submit any detail in this regard. The same was recorded in the Assessment order, therefore the Appellant was well aware of such fact Assessment order, therefore the Appellant was well aware of such fact Assessment order, therefore the Appellant was well aware of such fact at the time of filing of appeal. Yet, the appellant failed to submit any at the time of filing of appeal. Yet, the appellant failed to submit any at the time of filing of appeal. Yet, the appellant failed to submit any agreement/Mou copy in this regard eithe agreement/Mou copy in this regard either at the time of filing of appeal r at the time of filing of appeal or during the appellate proceeding. This clearly shows that the or during the appellate proceeding. This clearly shows that the or during the appellate proceeding. This clearly shows that the appellant either does not have the relevant documents or does not want appellant either does not have the relevant documents or does not want appellant either does not have the relevant documents or does not want to produce them as they might not be in accordance with the appellant to produce them as they might not be in accordance with the appellant to produce them as they might not be in accordance with the appellant contention. 7.3 During the course of the Appellate proceedings, the appellant has uring the course of the Appellate proceedings, the appellant has uring the course of the Appellate proceedings, the appellant has relied upon various case relied upon various case-laws, however the applicability of those case laws, however the applicability of those case law can only be ascertained when the Facts of the case are in line with law can only be ascertained when the Facts of the case are in line with law can only be ascertained when the Facts of the case are in line with each other. In the instant case the appellant ha each other. In the instant case the appellant has failed to submit the s failed to submit the basic documents, therefore the nature of transaction itself can not be basic documents, therefore the nature of transaction itself can not be basic documents, therefore the nature of transaction itself can not be verified. At the time of the filing of appeal, the appellant stated that the verified. At the time of the filing of appeal, the appellant stated that the verified. At the time of the filing of appeal, the appellant stated that the additional evidence will be produced during the appellate proceeding. additional evidence will be produced during the appellate proceeding. additional evidence will be produced during the appellate proceeding. However even af However even after allowing more than sufficient opportunities, the ter allowing more than sufficient opportunities, the appellant has not submitted any additional evidence/agreement/Mou appellant has not submitted any additional evidence/agreement/Mou appellant has not submitted any additional evidence/agreement/Mou copy in any of its submission. copy in any of its submission. Therefore in the absence of the Therefore in the absence of the documents to ascertain the facts of the case, the case laws relied upon documents to ascertain the facts of the case, the case laws relied upon documents to ascertain the facts of the case, the case laws relied upon by the appellant are not considered. the appellant are not considered. 7.4 During the course of the assessment proceeding, the AO discussed During the course of the assessment proceeding, the AO discussed During the course of the assessment proceeding, the AO discussed the case law in the case of Google India Private Limited vs. ADIT (2017) the case law in the case of Google India Private Limited vs. ADIT (2017) the case law in the case of Google India Private Limited vs. ADIT (2017) (86 taxmann.com (86 taxmann.com 237) which dealt with the issue of digital advertising 237) which dealt with the issue of digital advertising provided by the Google Adwords program. In the order it was noticed by the Google Adwords program. In the order it was noticed by the Google Adwords program. In the order it was noticed that the Google Adwords relies upon the keywords while the Facebook that the Google Adwords relies upon the keywords while the Facebook that the Google Adwords relies upon the keywords while the Facebook relies upon used profiles. Hon'ble ITAT also concluded that the relies upon used profiles. Hon'ble ITAT also concluded that the relies upon used profiles. Hon'ble ITAT also concluded that the Facebook platform doesnot sell ad space based on the advertiser' Facebook platform doesnot sell ad space based on the advertiser' Facebook platform doesnot sell ad space based on the advertiser's requirement bur runs a continuous advertisement campaign on the use requirement bur runs a continuous advertisement campaign on the use requirement bur runs a continuous advertisement campaign on the use profiles so that the customers are targeted in an efficient manner. profiles so that the customers are targeted in an efficient manner. profiles so that the customers are targeted in an efficient manner. Relevant portion of the order is re Relevant portion of the order is re-produced as under:
Mudra Online Technologies Pvt. Ltd. Mudra Online Technologies 5 ITA No. 3164/MUM/2024
The appellant makes use of the user data/customer data The appellant makes use of the user data/customer data The appellant makes use of the user data/customer data (persona (personal information, general information like user profile, age, l information, general information like user profile, age, sex, language, type of mobile, time when customer is visiting sex, language, type of mobile, time when customer is visiting sex, language, type of mobile, time when customer is visiting particular web site/searching on search engine, how much time particular web site/searching on search engine, how much time particular web site/searching on search engine, how much time is spent on internet and on which website, etc. for the purposes is spent on internet and on which website, etc. for the purposes is spent on internet and on which website, etc. for the purposes of targe of targeted/focus marketing campaign for the advertisers) and ted/focus marketing campaign for the advertisers) and the the the patented patented patented technology, technology, technology, with with with algorithm algorithm algorithm to to to advertise/disseminate ads. Present case is not a case of merely advertise/disseminate ads. Present case is not a case of merely advertise/disseminate ads. Present case is not a case of merely displaying or exhibiting of advertisement by the advertiser on displaying or exhibiting of advertisement by the advertiser on displaying or exhibiting of advertisement by the advertiser on the website, case in hand is a c the website, case in hand is a case of use of patented ase of use of patented technology, technology, technology, secret secret secret process, process, process, use use use of of of trademark trademark trademark by by by the the the appellant........ appellant........ ....Therefore, the payment made by the appellant to Google ....Therefore, the payment made by the appellant to Google ....Therefore, the payment made by the appellant to Google Ireland is royalty and not the business profit and therefore Ireland is royalty and not the business profit and therefore Ireland is royalty and not the business profit and therefore chargeable to tax in India. chargeable to tax in India. 7.5 The facts o The facts of the case similar to appellant wherein, Facebook Ad f the case similar to appellant wherein, Facebook Ad Platform analyses through its patented technology/algorithm the analyses through its patented technology/algorithm the analyses through its patented technology/algorithm the data/information/content (personal information, general information data/information/content (personal information, general information data/information/content (personal information, general information like user profile, age, sex, language, type of mobile, time when custom like user profile, age, sex, language, type of mobile, time when custom like user profile, age, sex, language, type of mobile, time when customer is visiting particular web site with respect to the is visiting particular web site with respect to the preferences set by the preferences set by the advertiser and the bidding amount. Hence, the payment made by the advertiser and the bidding amount. Hence, the payment made by the advertiser and the bidding amount. Hence, the payment made by the assessee to FIL is in the nature of Royalty under the Act and the DTAA. assessee to FIL is in the nature of Royalty under the Act and the DTAA. assessee to FIL is in the nature of Royalty under the Act and the DTAA. 7.6 In view of the above discussion and 7.6 In view of the above discussion and after careful consideration of after careful consideration of the facts of the case, the appellant's claim can not be accepted and the facts of the case, the appellant's claim can not be accepted and the facts of the case, the appellant's claim can not be accepted and accordingly, these grounds of appeal are hereby dismissed. accordingly, these grounds of appeal are hereby dismissed.” ” 4. Before us, the Ld. counsel for the assessee relied on the Before us, the Ld. counsel for the assessee relied on the Before us, the Ld. counsel for the assessee relied on the decision of the Co-ordinate Bench o ordinate Bench of the Tribunal dated 19.10.2022 f the Tribunal dated 19.10.2022 in the case of M/s Google India Pvt. Ltd. v. Dy. CIT in ITA No. 1513 in the case of M/s Google India Pvt. Ltd. v. Dy. CIT in ITA No. 1513 in the case of M/s Google India Pvt. Ltd. v. Dy. CIT in ITA No. 1513 to 1516/Bang/2013 for assessment years 2009 to 1516/Bang/2013 for assessment years 2009-10 to 2012 10 to 2012-13. The Ld. counsel also relied on the decision of the Hon’ble Karnataka Ld. counsel also relied on the decision of the Hon’ble Karnataka Ld. counsel also relied on the decision of the Hon’ble Karnataka High Court in the case of G High Court in the case of Google India (P.) Ltd. v. Addl. CIT in ITA oogle India (P.) Ltd. v. Addl. CIT in ITA No. 879/2017 which has been reported in (2021) 435 ITR 284 No. 879/2017 which has been reported in (2021) 435 ITR 2 No. 879/2017 which has been reported in (2021) 435 ITR 2 (Karnataka) dated 17.04.2021. The Ld. counsel also filed copy of the (Karnataka) dated 17.04.2021. The Ld. counsel also filed copy of the (Karnataka) dated 17.04.2021. The Ld. counsel also filed copy of the invoices raised by the invoices raised by the ‘Facebook Ireland’ for advertisement book for advertisement booking. On perusal of those invoices it is seen that assessee has booked se invoices it is seen that assessee has booked se invoices it is seen that assessee has booked
Mudra Online Technologies Pvt. Ltd. Mudra Online Technologies 6 ITA No. 3164/MUM/2024
advertisements for advertisements for ‘McDonalds India’. The description of the ’. The description of the services provided under the two invoices is services provided under the two invoices is reproduced as under: reproduced as under:
Invoice #: 220346932 Invoice #: 220346932 Invoice Date : 21-04-2024 Invoice Date : 21 Id/Group: Account Account Id/Group: 1374332989499451 1374332989499451 Payment Terms : NET 30 Payment Terms : NET 30 Page : 1 of 1 Page : 1 of 1 BILL TO: Mudra Online Technologies Private Limited "Mudra House", BILL TO: Mudra Online Technologies Private Limited "Mudra House", Opp. Grand Hyatt, Santacruz (E), MUMBAI MAHARASHTRA 400055 Opp. Grand Hyatt, Santacruz (E), MUMBAI MAHARASHTRA 400055 INDIA ATTN : Accounts Payable Advertiser : Hardcastle Restaurants Advertiser : Hardcastle Restaurants Pvt. Ltd. (Mcdonalds) Customer I.O. # : IO Line # Description Total Total 1. Orders 30,695.02 30,695.02 2. Posts Engagement 455,959.20 455,959.20 3. Breakfast Day - Post Engagement Post Engagement 60,000.00 60,000.00 4. McDonalds India - Post Engagement Post Engagement - Ahmed... - 13-35 210,000.00 210,000.00 5. McDonalds India - Post Engagement Post Engagement - Ahmed.. - 13-35 30,000.00 30,000.00 6. MCD Elections - Video Post Video Post 72,296.82 72,296.82 7. McD Eloctions - Viduo Post Viduo Post - 3 22.261.60 22.261.60 8. McD Elections - Video Post Video Post - Final 31,026.00 31,026.00 Subtotal 912,238.70 912,238.70 Froight 0.00 VAT @ 0% 0.00 Invoice Total 912,238.70 912,238.70 ----------------------------------------------------------------------------------- ----------------------------------------------------------------------------------- -----------------------------------------------------------------------------------
Invoice #: 220370703 220370703 Invoice Date : 28 28-May-2014 Billing Period: APR-14 Billing Period: APR Account Account ID/Group ID/Group : : 1374332989499451 1374332989499451 Payment Terms: NET 30 Payment Terms: NET 30 Page : 1 of 1 BILL TO: Mudra Online Technologies Private Limited "Mudra Mudra Online Technologies Private Limited "Mudra House", House", Opp. Opp. Grand Grand Hyatt, Hyatt, Santacruz Santacruz (E), (E), MUMBAI MUMBAI MAHARASHTRA 400055 INDIA ATTN : Accounts Payable Advertiser : Hardcastle Restaurants Pvt. Ltd. (Mcdonalds) Advertiser : Hardcastle Restaurants Pvt. Ltd. (Mcdonalds) Customer I.O. # : IO Line # Description Total 1. McD Elections - Revised Revised - Day 9 31.000.30 2. McD Elections - Revised Revised - Day 10 42,819.07 3. McD Elections - Revised Revised - Day 11 31.000.33 4. McD Elections - Revised Revised - Day 12 31,000.33 5. McD Elections - New Setup New Setup - Day 13 31,000.33 6. Orders (MDS) 30.422.50 7. McD Elections - McRoyale Duo Sweeps Into 31.000.00
Mudra Online Technologies Pvt. Ltd. Mudra Online Technologies 7 ITA No. 3164/MUM/2024
Power! - Day 1 8. McD Elections - McRoyale Duo Sweeps Into 31.000.00 Power! - Day 2 9. McD Elections - McRoyale Duo Sweeps Into 31.000.00 Powerl-Day 3 10. McD Elections - McRoyale Duo Sweeps Into 31,000.00 Power! - Day 4 11. McD Elections - McRoyale Duo Sweeps Into 37,125.14 Powert - Day 5 12. McD Elections - McRoyale Due Sweeps Into 31,000,00 Powerl - Day 6 13. McD Elections - Revised Revised - Day 7 31.000.00 14. McD Elections - Revised Revised - Day 8 31.000.00 Subtotal : 451,368.00 Freight : 0.00 Invoice Total : 451,368.00 4.1 From the above invoices, it is not clear exactly what kind of From the above invoices, it is not clear exactly what kind of From the above invoices, it is not clear exactly what kind of services were actually rendered by ‘Facebook Ireland’. We find that services were actually rendered by ‘Facebook Ireland’. services were actually rendered by ‘Facebook Ireland’. in this case the assessee in this case the assessee was asked to file the copy of the agreement asked to file the copy of the agreement entered into with ‘Facebook Ireland Facebook Ireland’. Before the ld CIT(A) , ’. Before the ld CIT(A) , the assessee informed that same that same should be filed during the course of be filed during the course of the appellate proceedings the appellate proceedings before him but it was not file but it was not filed. In our opinion, verification of the agreement or MO n of the agreement or MOU with the ‘F with the ‘Facebook Ireland’ in relation to the services of advertising in relation to the services of advertising in relation to the services of advertising is relevant and important for determination of the kind of services for determination of the kind of services rendered and for determination of the kind of services whether same are in the nature of the royalty whether same are in the nature of the royalty or not or not. It is also relevant for determination of the issue as to determination of the issue as to whether the agreement whether the agreement was entered with any Indian agent entered with any Indian agent of ‘Facebook Ireland acebook Ireland’ i.e. ‘Facebook India’ as in that case the issue of permanent as in that case the issue of permanent as in that case the issue of permanent establishment (PE) of assessee in India may also arise. In the facts establishment (PE) of assessee in India may also arise. establishment (PE) of assessee in India may also arise. and circumstances of the case es of the case, reliance placed by the assessee by the assessee on the decisions cited without ascertaining the factual background of the decisions cited without ascertaining the factual background of the decisions cited without ascertaining the factual background of the assessee will not be in the assessee will not be in the interest of justice, and therefore, we and therefore, we
Mudra Online Technologies Pvt. Ltd. Mudra Online Technologies 8 ITA No. 3164/MUM/2024
feel it appropriate to restore the matter back to the file of the Ld. feel it appropriate to restore the matter back to the file of the L feel it appropriate to restore the matter back to the file of the L Assessing Officer with the direction to the assessee to file the copy Assessing Officer with the direction to the assessee to file the Assessing Officer with the direction to the assessee to file the of the agreement or the MO of the agreement or the MOU entered into with U entered into with regard to the services availed. If the assessee does not co . If the assessee does not co-operate then the operate then the Assessing Officer may collect the said agreement directly from the Assessing Officer may collect the said agreement directly fr Assessing Officer may collect the said agreement directly fr Facebook Ireland invoking the authority provided under the invoking the authority provided under the invoking the authority provided under the Act. Accordingly, the grounds raised by the assessee are restored back. Accordingly, the grounds raised by the assessee are restored back. Accordingly, the grounds raised by the assessee are restored back.
In the result, the appeal of the assessee is allowed for In the result, the appeal of the assessee is allowed for In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Order pronounced in the open Court on 27/09/2024. /09/2024. Sd/- Sd/ Sd/ Sd/- (SUNIL KUMAR SINGH SUNIL KUMAR SINGH) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 27/09/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai
