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Income Tax Appellate Tribunal, MUMBAI BENCH “L”, MUMBAI
Before: SHRI G.S. PANNU & SHRI AMARJIT SINGH
PER G.S. PANNU, AM :
The captioned are five appeals preferred by the assessee for Assessment Year 2003-04, 2005-06, 2008-09, 2009-10 & 2010-11. In all the appeals, a common substantive issue relates to the taxability of amount received by the assessee-company from Indian customers as subscription fee.
At the time of hearing, it was a common point between the parties that the facts and circumstances in relation to the said dispute are similar in all the assessment years, therefore, appeal of the assessee
2 M/s. Gartner Ireland Ltd. to 2622 & 4534/Mum/2014 for Assessment Year 2003-04 is taken as lead case in order to appreciate the controversy.
ITA NO. 2619/MUM/2014 (A.Y : 2003-04)
This appeal by the assessee is directed against the order of CIT(A)-10, Mumbai dated 08.11.2013, pertaining to the Assessment Year 2003-04, which in turn has arisen from the order passed by the Assessing Officer, Mumbai under section 144C(3) r.w.s. 147 r.w.s. 143(3) of the Income Tax Act, 1961 (in short ‘the Act’).
Briefly put, the relevant facts are that the appellant is a tax resident of Ireland and is engaged in the business of distributing Gartner group’s research products in the form of subscription, both in Ireland and through distributors in territories where Gartner group does not have a local presence. The research products of the assessee entail qualitative research and analysis which aids decision-making for information technology buyers, users and vendors. Assessee-company sells its subscription to Indian customers/subscribers by providing them access to its products over the internet from its data server which is located outside India. Assessee-company enters into service agreements with its Indian customers/subscribers for each of Gartner services purchased, which sets out the details of the services to be provided and the applicable subscription fee, etc. In accordance with such service agreements, the Indian subscribers/customers pay a subscription/access fee to the assessee-company. During the year under consideration, assessee-company received an amount of 3 M/s. Gartner Ireland Ltd. to 2622 & 4534/Mum/2014 Rs.24,94,591/- from its Indian subscribers/customers in terms of the service agreements. The stand of the assessee was that such receipts are not liable to be taxed in India as assessee does not have any fixed place of business or permanent establishment in India. However, Assessing Officer took the view that such subscription fee was liable to be taxed in India as ‘Royalty’ within the meaning of Sec. 9(1)(vi) of the Act as also per Article 12 of the Double Taxation Avoidance Agreement (DTAA) between India and Ireland. Accordingly, Assessing Officer treated the amount of Rs.24,94,595/- received by the assessee from Indian customers/subscribers as Royalty. The total income was determined at Rs.24,94,591/- and it has been taxed @ 10% on gross basis by relying on Article 12 of the Indo-Ireland DTAA.
5. Notably, the said assessment has been finalised by the Assessing Officer after issuance of notice of reopening u/s 148 of the Act on 30.3.2010. The Assessing Officer reopened the assessment for Assessment Year 2003-04 on the ground that similar amounts earned by the assessee in Assessment Years 2004-05 and 2007-08 were held to be taxable as ‘Royalty’ in terms of Article 12 of Indo-Ireland DTAA read alongwith Sec. 9(1)(vi) of the Act. The CIT(A) has also sustained the stand of Assessing Officer primarily by relying on the judgment of Hon'ble Karnataka High Court in the case of CIT (International Taxation) v. Wipro Ltd., 203 Taxman 621 (Kar). Against such a decision of the CIT(A), assessee is in further appeal before us.
6. Before us, it was a common point between the parties that similar issue had come up before the Tribunal in assessee’s own case
4 M/s. Gartner Ireland Ltd. to 2622 & 4534/Mum/2014 for Assessment Year 2007-08 whereby vide dated 24.7.2013 the stand of the Revenue has been upheld. In this context, the following discussion in the order of Tribunal dated 24.7.2013 (supra) is relevant :-
“4. We have heard the rival submissions and perused the relevant material on record. At the very outset, the learned Departmental Representative relied on the judgment of the Hon’ble Karnataka High Court in the case of CIT (IT) v. Wipro Limited [(2011) 203 Taxman 621 (Kar.)] and submitted that Wipro Limited, a customer of the present assessee made payment without deduction of tax at source u/s 195 of the Act. When the matter finally came up before the Hon’ble Karnataka High Court, it was held that the payments made by Wipro Limited to Gartner for online use of database was for licence to use said database and hence the consideration was royalty, liable for deduction of tax at source u/s 195 of the Act.
The learned AR countered the submissions advanced on behalf of the Revenue by stating that the issue as to whether the payment should be considered as `royalty’ or `business profits’ is not free from doubt in view of the conflicting judgments rendered by the Hon’ble Karnataka High Court in the case of Wipro Limited (supra) and the Hon’ble Delhi High Court in the case of Ericsson A.B. *(2012) 204 Taxman 192 (Del.)]. It was submitted that the Mumbai Bench of the Tribunal in the case of DDIT (IT) v. M/s. Solid Works Corporation [ITA No.3219/Mum/2010] vide its order dated 08.01.2012 considered both the judgments and thereafter took a view in favour of the assessee by holding that the amount was in the nature of `business profits’ and not `royalty’. The said decision of the Mumbai Bench was subsequently followed by the Mumbai Bench in another case and the Pune Bench of the tribunal in Allianz SE v. ADIT (IT) [(2012) 51 SOT 399 (Pune)]. In view of these three decisions given by the Tribunal in assessee’s favour, the learned AR contended that the view taken in assessee’s favour should be taken.
5 M/s. Gartner Ireland Ltd. to 2622 & 4534/Mum/2014
We are not convinced with the submissions advanced on behalf of the assessee for the obvious reason that the Hon’ble Karnataka High Court considered a case in which Wipro Limited made payment to the assessee and the same has been held to be in the nature of `royalty’, liable for deduction of tax at source u/s 195. The Hon’ble High Court noticed in the penultimate para of the judgment that : “the payment made by the respondent to M/s.Gartner, which is a non-resident company, would amount to `royalty’ and wherefor, there is a statutory obligation on the part of the respondent to make tax deduction ......”. We are unable to see as to how the contrary view expressed by the Tribunal in three orders can be adopted in the case of the payee-assessee, when the Hon’ble Karnataka High Court has rendered judgment on the very same transaction in the hands of the payers. If the argument tendered by the ld. AR is accepted, it would amount to delivering an opinion contrary to that of the Hon’ble High Court, which is obviously out of question. We, therefore, do not find any substance in the arguments put forth by the ld. AR. The impugned order is upheld.”
The learned representative for the assessee did not controvert that the aforesaid decision of the Tribunal continues to hold the field inasmuch as it has not been altered by any higher authority. So however, the learned representative pointed out that the judgment of the Hon’ble Karnataka High Court in the case of Wipro Ltd. (supra), which has been relied by the Tribunal, to decide the issue against the assessee be not be followed for varied reasons. Firstly, according to him, assessee was not a party before the Hon’ble Karnataka High Court and it was a case where the issue related to the nature of payments made by M/s. Wipro Ltd. as a customer of the assessee-company; and secondly, that subsequently the Hon’ble Delhi High Court in the case of Infrasoft Ltd., 39 Taxmann.com 88 (Delhi) has examined payment of a similar nature and found it to be not in the nature of royalty after
6 M/s. Gartner Ireland Ltd. to 2622 & 4534/Mum/2014 specifically dissenting from the view of the Hon’ble Karnataka High Court. It has been canvassed that the aforesaid development has taken place after the decision of Tribunal in assessee’s case for Assessment Year 2007-08 on 24.7.2013 (supra) and, therefore, under the changed circumstances, the later view represented by the decision of Hon’ble Delhi High Court in the case of Infrasoft Ltd. (supra) be preferred, which ostensibly supports the plea of assessee that impugned sums are in the nature of business receipts not taxable in India in the absence of any permanent establishment or fixed place of business. In this regard, it is pointed out in the case of M/s. Capgemini Business Services (India) Ltd., dated 29.2.2016 the Mumbai Bench has followed the decision of Hon'ble Delhi High Court in preference to that of Hon'ble Karnataka High Court. Apart therefrom, the learned representative for the assessee also referred to certain decisions of various Benches of the Tribunal, including that of the Mumbai Benches, to point out that similar payments have not been found to be in the nature of royalty. On this aspect, learned representative also referred to the relevant discussion in para 10 of the order of CIT(A) to point out that it is a case which involves payment for use of a copyrighted work and not for transacting in copyright itself. Such decisions are as follows :- i) M/s. Baan Global B V, ITA No. 7048/Mum/2010 dated 13.6.2016 ii) Allianz SE, [2012] 21 taxmann.com 62 (Pune) iii) M/s. Reliance Industries Ltd., [2016] 69 taxmann.com 311 (Mumbai –Trib) iv) M/s. Solid Works Corporation, ITA No. 3219/Mum/2010 dated 8.1.2012
7 M/s. Gartner Ireland Ltd. to 2622 & 4534/Mum/2014
On the other hand, the ld. DR has reiterated the decision of Tribunal in assessee’s own case for Assessment Year 2007-08 dated 24.7.2013 (supra) which according to him fully covers the controversy before us.
We have carefully considered the rival submissions. At the outset, we may notice that so far as the similarity of fact-position in the instant year vis-a-vis Assessment Year 2007-08 (supra) is concerned, there is no divergence between the parties before us. In Assessment Year 2007-08 (supra), Tribunal considered the judgment of Hon'ble Karnataka High Court in the case of Wipro Ltd. (supra). Wipro Ltd., as a customer of the captioned assessee, had made payments for subscription/access fee to the assessee-company without deduction of tax at source u/s 195 of the Act. The Tribunal noticed that when the matter came up before Hon’ble Karnataka High Court it has been held that payment made by Wipro Ltd. to assessee, M/s. Gartner Ireland Ltd., as subscription fee was in the nature of royalty, thus liable for deduction of tax at source u/s 195 of the Act. Ostensibly, the Hon’ble Karnataka High Court has considered the nature of a ‘transaction’ which is one under consideration before us. Therefore, under these circumstances, in our view, the Tribunal made no mistake in following the judgment of Hon’ble Karnataka High Court in the case of Wipro Ltd. (supra) and holding that the amounts received by the assessee from Indian customers is liable to be treated as royalty. In the present year too, the said circumstance has not undergone a change and we find no reason to depart from the earlier stand of the Tribunal in assessee’s own case for Assessment Year 2007-08 (supra). The reliance placed by 8 M/s. Gartner Ireland Ltd. to 2622 & 4534/Mum/2014 learned representative on the subsequent decision of Hon’ble Delhi High Court in the case of Infrasoft Ltd. (supra), in our view, does not justify departure from the decision of Tribunal dated 24.7.2013 (supra) because the decision of Hon’ble Karnataka High Court in the case of Wipro Ltd. (supra) is specific to the transaction before us, albeit in the hands of the payer of such income. Therefore, as per principles of judicial consistency and considering that the decision of Tribunal dated 24.7.2013 (supra) has not been altered by any higher authority, we deem it fit and proper to decide the issue in favour of Revenue and against the assessee. Thus, following the precedent, stand of the Revenue is upheld and assessee fails. The plea of the learned representative before us, based on the judgment of Hon'ble Supreme Court in the case of Vegetable Products Ltd., 88 ITR 192 (SC), that where two views are possible, one that is favourable to the assessee should be preferred, is also not acceptable. This is for the reason that the view of Hon'ble Karnataka High Court is specific to the transaction which involves the assessee herein, whereas the contrary view of the Hon'ble Delhi High Court is not specific to the assessee before us. In this view of the matter and in the absence of any decision of the jurisdictional High Court, we find no reason to depart from the earlier decision of the Tribunal in assessee’s own case for Assessment Year 2007-08 with a view of maintaining consistency.
In Assessment Years 2003-04 and 2005-06, assessee has raised another issue whereby the initiation of proceedings by issuance of notices u/s 147/148 of the Act has been challenged. As noted earlier, the assessments have been reopened for the said two assessment years
9 M/s. Gartner Ireland Ltd. to 2622 & 4534/Mum/2014 primarily based on the stand of Assessing Officer taken in the assessment proceedings for Assessment Years 2004-05 and 2007-08. On this aspect, the only plea raised by the learned representative was that in Assessment Year 2003-04 only an intimation u/s 143(1) was originally made and no assessment was made as such before reopening the assessment by issuance of notice u/s 148 of the Act dated 30.3.2010. Similarly, for Assessment Year 2005-06 it is pointed out that the return of income was filed on 15.11.2006 and no assessment was made and it was reopened by issuance of notice u/s 148 of the Act dated 29.3.2010. The learned representative has not made any serious arguments on this aspect of the matter.
In any case, in our view, reopening of assessment in the present case is based on the stand of assessing authority for other assessment years, and thus there is enough cause and justification for invoking Sec. 147/148 of the Act and following the judgment of Hon’ble Supreme Court in the case of Rajesh Jhaveri Stock Brokers Pvt. Ltd., 291 ITR 500 (SC) initiation of proceedings u/s 147/148 of the Act are upheld. Thus, on this aspect also assessee fails.
Resultantly, captioned appeals of the assessee are dismissed.
Order pronounced in the open court on 21st September, 2016.