CIT v. Siemens Aktiongesellschaft

310 ITR 320High Court2009#324 most cited

What is CIT v. Siemens Aktiongesellschaft authority for?

Reimbursements of actual expenses without any profit element are not taxable income. Additionally, mere amendments to the Income-tax Act do not override the provisions of Double Taxation Avoidance Agreements (DTAAs).

259

judgments rely on this decision, according to BharatTax’s citation analysis of 367,368 Indian tax judgments — from 2012 to 2026.

Also referred to as

CIT v. Siemens Aktiongesellschaft · 310 ITR 320 · reimbursements not taxable · no profit element · Section 9(1)(vi) · Section 9(1)(vii) · Section 195 · Section 90(2) · DTAA override · withholding tax on FTS royalty · fees for technical services · royalty income

Also reported as

177 Taxmann 81220 CTR 425

Sections most often in play

Section 143(3)Section 9(1)(vi)Section 9(1)(vii)Section 14(a)/14(b) of the Copyrights ActSection 144C(13)Section 144C(5)Section 195Section 1961

Issues it is cited on

section 195(2)fees for included servicessection 44bbsection 9(1)(vi)section 44bwithholding taxcopyrighted articleroyalty incomesection 90(2)section 9(1)fees for technical servicespermanent establishment

Judgments citing CIT v. Siemens Aktiongesellschaft

DDIT (It) 2(1), Mumbai vs. Reliance Industries Ltd, Mumbai

ITA 3578/MUM/2010[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

DDIT (It) 2(1), Mumbai vs. Reliance Industries Ltd, Mumbai

ITA 3577/MUM/2010[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

DDIT (It) 2(1), Mumbai vs. Reliance Industries Ltd, Mumbai

ITA 3576/MUM/2010[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

ITO (TDS) (Ltu), Mumbai vs. Reliance Industries Ltd, Mumbai

ITA 5832/MUM/2009[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

ITO (TDS) (Ltu), Mumbai vs. Reliance Industries Ltd, Mumbai

ITA 5829/MUM/2009[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

DDIT (It) 2(1), Mumbai vs. Reliance Industries Ltd, Mumbai

ITA 5266/MUM/2009[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

DDIT (It) 2(1), Mumbai vs. Reliance Industries Ltd, Mumbai

ITA 5265/MUM/2009[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

DDIT (It) 2(1), Mumbai vs. Reliance Industries Ltd, Mumbai

ITA 5264/MUM/2009[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

The DDIT(It)-1(2), Mumbai vs. M/S. Reliance Industries Ltd, Mumbai

ITA 2529/MUM/2008[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

The DDIT(It)-1(2), Mumbai vs. M/S. Reliance Industries Ltd, Mumbai

ITA 2523/MUM/2008[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

The DDIT(It)-2(1), Mumbai vs. M/S. Reliance Industries Ltd, Mumbai

ITA 1986/MUM/2008[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

The DDIT(It)-2(1), Mumbai vs. M/S. Reliance Industries Ltd, Mumbai

ITA 1984/MUM/2008[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

The DDIT(It)-2(1), Mumbai vs. M/S. Reliance Industries Ltd, Mumbai

ITA 1982/MUM/2008[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

The DDIT(It)-2(1), Mumbai vs. M/S. Reliance Industries Ltd, Mumbai

ITA 1981/MUM/2008[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

The DDIT(It)-2(1), Mumbai vs. M/S. Reliance Industries Ltd, Mumbai

ITA 1980/MUM/2008[]Status: DisposedITAT Mumbai18 May 2016

Bench: Shri Sanjay Garg & Shri Ashwani Taneja

Section 9(1)(vi)

…4‘ was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to provide that all consideration for user of software shall be assessable as ―royalty―, the definition in the DTAA has been left unchanged. That in ―Siemens AG‖ 310 ITR 320 (Bom), it was held that amendments cannot be read into the treaty. As the assessee has opted to be assessed by the DTAA, the consideration cannot be assessed as ―royalty‖ despite the retrospective amendments to the Act. The relevant findings of the Hon‘ble Delhi High Court as given in para 23 of the said decision, for the sake of convenience are…

Goldman Sachs India Finance P.Ltd, Mumbai vs. CIT 1, Mumbai

In the result, the assessee’s appeal for assessment year 2010-11

ITA 2227/MUM/2015[2010-11]Status: DisposedITAT Mumbai11 May 2016AY 2010-11
For Appellant: Shri J.D.MistryFor Respondent: Shri Subachan Ram
Section 115JSection 143(1)Section 143(3)Section 263Section 40

…in the nature of reimbursement of expenses since there is no element of income embedded therein:- (i) J.B.Boda Surveyors Pvt. Ltd. (ITA No.4252/Mum/2009) (ii)Mahyco Monsanto Biotech (India) Ltd. (ITA No.5842/Mum/2012) (iii)CIT vs. Siemens Aktiongesellschaft (310 ITR 320)(Bom) (iv) Bayer Material Science Pvt. Ltd. (ITA No.7977/Mum/2010) 4.1.2 The Ld. Sr. Counsel contended that the facts as submitted above clearly establish that the order of assessment dated 27/11/2013 is not erroneous as the Assessing Officer had applied his mind on the matter by considering the submissions and details put forth by the assessee o…

M/S Balmer Lawries & Co. Ltd., Kolkata vs. Income Tax Officer(It) WD-1(1), Kolkata

In the result, assessee’s appeal stands allowed

ITA 2079/KOL/2014[2012-2013]Status: DisposedITAT Kolkata27 Apr 2016AY 2012-2013

Bench: Shri Mahavir Singh & Shri Waseem Ahmedassessment Year :2012-13 M/S Balmer Lawrie & Co. V/S. Income Tax Officer Ltd., 21, N.S.Road, (International Taxation), Kolkata-700 001 Ward-1(1), Aayakar [Pan No. Aabcb 0984 E] Bhawan (Poorva), 2Nd Floor, R. No.215, 110, Shanti Pally, Kolkata- 700 107 .. अपीलाथ" /Appellant ""यथ"/Respondent Shri M.K.Poddar, Sr-Advocate अपीलाथ" क" ओर से/By Appellant Shri C.P.Bhatia, Jcit-Dr ""यथ" क" ओर से/By Respondent 18-02-2016 सुनवाई क" तार"ख/Date Of Hearing 27-04-2016 घोषणा क" तार"ख/Date Of Pronouncement

Section 195Section 201(1)Section 5(2)(b)

…in its Circular No.333 dated 2nd April, 1982 reported in (1982) 137 ITR(St.) 1 as well as by the Hon’ble Calcutta High Court in CIT v. Davi Ashmore India Ltd. (1991) 190 ITR 626 (Cal). The Hon’ble Bombay High Court in CIT v. Siemens Aktiongesellschaft (2009) 310 ITR 320 (Bom), and the Hon’ble Delhi High Court in Van Oord ACZ India Pvt. Ltd. v. CIT (2010) 323 ITR 130 (Del), the Authority for Advance Rulings in HMS Real Estate Pvt. Ltd., In re (2010) 325 ITR 71 (AAR) and Ernst & Young Pvt. Ltd., In re (2010) 323 ITR 184 (AAR), as well as the Special Bench of the Income Tax Tribunal, Mumbai in Mahindra and Mahindra…

Gifford & Partners Ltd.(Since Merged With Gifford LLP), Kolkata vs. ADIT (International Taxation) - 1(1), Kolkata

In the result ITA No.1489/Kol/11 is partly allowed

ITA 1489/KOL/2011[2005-06]Status: DisposedITAT Kolkata06 Apr 2016AY 2005-06

Bench: Hon’Ble Shri N.V.Vasudevan, Jm & Shri Waseem Ahmed, Am] Assessment Year : 2007-08

For Appellant: Shri S.K.Agarwal, FCAFor Respondent: Shri G.Mallikarjuna, CIT (DR)
Section 143(3)Section 144C

…s, there is no business connection. The Assessee relied on the following decisions wherein the contentions referred to above have been accepted: • Ishikawajima Harima Heavy Industries Ltd. vs. CIT 288 ITR 408 (SC) • CIT vs. Siemens Aktiongesellschaft (2009) 310 ITR 320 BOM) • Mahindra vs. DCIT (2009-TIOL-255-ITAT-MUM-SB) • Reymonds Ltd. vs. DCIT (2003) 86ITD 791, ITAT BOM Gifford and Partners Ltd. (since merged with Gifford LLP). A.Yr.2007-08 • Intertek Testing Services India Pvt. Ltd. (2008) 307 ITR 418AAR It was again reiterated that during the relevant AY, the Assessee was involved in Phase-II of the cont…

Gifford & Partners Ltd.(Since Merged With Gifford LLP), Kolkata vs. DDIT, International Taxation - 1(1), Kolkata

In the result ITA No.1489/Kol/11 is partly allowed

ITA 2082/KOL/2010[2007-08]Status: DisposedITAT Kolkata06 Apr 2016AY 2007-08

Bench: Hon’Ble Shri N.V.Vasudevan, Jm & Shri Waseem Ahmed, Am] Assessment Year : 2007-08

For Appellant: Shri S.K.Agarwal, FCAFor Respondent: Shri G.Mallikarjuna, CIT (DR)
Section 143(3)Section 144C

…s, there is no business connection. The Assessee relied on the following decisions wherein the contentions referred to above have been accepted: • Ishikawajima Harima Heavy Industries Ltd. vs. CIT 288 ITR 408 (SC) • CIT vs. Siemens Aktiongesellschaft (2009) 310 ITR 320 BOM) • Mahindra vs. DCIT (2009-TIOL-255-ITAT-MUM-SB) • Reymonds Ltd. vs. DCIT (2003) 86ITD 791, ITAT BOM Gifford and Partners Ltd. (since merged with Gifford LLP). A.Yr.2007-08 • Intertek Testing Services India Pvt. Ltd. (2008) 307 ITR 418AAR It was again reiterated that during the relevant AY, the Assessee was involved in Phase-II of the cont…

ITO (TDS), New Delhi vs. Bharti Airtel Ltd., Gurgaon

In the result, all the Appeals of the Assessee are allowed and all the Revenue’s Appeals are dismissed

ITA 4077/DEL/2012[2009-10 (F.Y. 2008-09)]Status: DisposedITAT Delhi17 Mar 2016

Bench: Shri H.S. Sidhu & Shri J. Sudhakar Reddy

For Appellant: Sh. S.K. Tulsiyan, Adv., ShFor Respondent: Sh. Anuj Arora, CIT(DR)
Section 194JSection 201Section 201(1)Section 9Section 9(1)(vii)

…ntinue to be viewed as business profits under art. 7 of the treaty and since the assessee had no PE in India the business profits cannot be taxed in India." 43. Similarly, the Hon’ble Bombay High Court in the case of CIT vs. Siemens Aktiongesellschaft (2009) 310 ITR 320 (Bom) "Double taxation relief Agreement between India' and' Federal Republic of Germany-Royalty vis-a-vis industrial and commercial profits-Even though s. 9 would apply, provisions of DTAA, if more beneficial, would prevail- Assessee having no PE in India, amount of royalty, sought to be assessed as industrial or commercial profit, is not assess…