“Section 9(1)(vi)”

Section References (mined)Section 9Section 9(1)(vi)770 judgments

The decision most relied on for Section 9(1)(vi) is Engineering Analysis Centre of Excellence (P) Ltd. v. CIT (432 ITR 471), cited in 914 judgments on BharatTax.

Leading authorities on Section 9(1)(vi)

Engineering Analysis Centre of Excellence (P) Ltd. v. CIT

432 ITR 471 · 2021 · Supreme Court

914

citing judgments

Payments for the supply or use of computer software, where there is no transfer of copyright but only a right to use the copyrighted product, are generally considered business profits and not 'royalty' or 'fees for technical services' under the Income Tax Act, 1961 or relevant DTAAs. This principle also applies to transponder fees, which are not taxable as royalty.

CIT v. Samsung Electronics Ltd.

345 ITR 494 · 2012 · High Court

461

citing judgments

Payments by Indian residents to non-resident foreign software suppliers for software are considered royalty, constituting income deemed to accrue in India under section 9(1)(v), thereby requiring tax deduction at source under section 195.

Asia Satellite Telecommunications Co. Ltd. v. DIT

332 ITR 340 · 2011 · High Court

359

citing judgments

Payments for the use of equipment, such as satellite transponders, do not constitute 'royalty' under Section 9(1)(vi) of the Income-tax Act, 1961, or under applicable tax treaties, especially when there is no transfer of the right to use a process or underlying technology.

DIT v. New Skies Satellite BV

382 ITR 114 · 2016 · High Court

325

citing judgments

An amendment to the Income Tax Act, such as the Finance Act, 2012 amendment to Section 9(1)(vi) defining royalty, does not automatically override or alter the definition of 'royalty' as provided in a Double Taxation Avoidance Agreement (DTAA) unless the DTAA itself is bilaterally amended. The definition of royalty in a DTAA remains unaffected by unilateral changes to domestic law.

DIT v. Nokia Networks OY

358 ITR 259 · 2013 · High Court

276

citing judgments

Payments for the supply of software along with telecom equipment are not in the nature of royalty if they are for the use of a copyrighted article, not the copyright itself. Such payments are not taxable in India in the absence of a Permanent Establishment (PE).

DIT v. Infrasoft Ltd.

39 Taxmann.com 88 · 2013 · High Court

269

citing judgments

Payments for the use of copyrighted software, without the transfer of any rights in the underlying copyright itself, do not constitute 'royalty' under the Income-tax Act or tax treaties. Such payments are often treated as business income, taxable only if a permanent establishment exists.

CIT v. Siemens Aktiongesellschaft

310 ITR 320 · 2009 · High Court

259

citing judgments

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).

DIT v. Ericsson A.B

343 ITR 470 · 2012 · High Court

256

citing judgments

Payments for the use of copyrighted software or reimbursement of data processing costs do not constitute 'royalty' under Section 9(1)(vi) of the Income-tax Act or Article 12(3) of a DTAA where there is no transfer of copyright or rendering of services that "make available" technical knowledge. This position was later upheld by the Supreme Court.

Judgments citing Section 9(1)(vi)

DCIT, Circle-3(1)(2), Int. Taxation, New Delhi vs. Starwood (M) International Inc., Noida

In the result, appeals are dismissed

ITA 1627/DEL/2023[2018-19]Status: DisposedITAT Delhi22 Sept 2023AY 2018-19

Bench: Shri Saktijit Dey, Hon’Ble Vice- & Dr. B.R.R. Kumarassessment Year: 2018-19 With Assessment Year: 2019-20 Dcit, Vs. Starwood (M) International Circle -3(1)(2), Inc., International Taxation, C/O- M/S. Nangia & Co. New Delhi Llp, A-109, Sector-136, Noida Pan :Aancs4030J (Appellant) (Respondent)

Section 9(1)(vii)

well as the relationship between the two parties. We have already done this exercise in the context of issue relating to applicability of section 9(1)(vi) read with Explanation 2 and after examining and analyzing all the relevant clauses and articles of the said agreements in detail, we have ... promotion. He has contended that since the same come within the purview of one or the other clauses contained in Explanation 2 to section 9(1 )(vi) and (vii) as well as Article 12(3) and 12(4) of the DTAA between India and USA, the payment/consideration attributable

DCIT, Circle 3(1)(2) Intl. Taxation, New Delhi vs. Sheraton Overseas Management Corporation, Noida

In the result, appeals are dismissed

ITA 1626/DEL/2023[2020-21]Status: DisposedITAT Delhi22 Sept 2023AY 2020-21

Bench: Shri Saktijit Dey, Hon’Ble Vice- & Dr. B.R.R. Kumarassessment Year: 2019-20 With Assessment Year: 2020-21 Dcit, Vs. Sheraton Overseas Circle -3(1)(2), Management Corporation, International Taxation, C/O- M/S. Nangia & Co. New Delhi Llp, A-109, Sector-136, Noida Pan :Aalcs8306H (Appellant) (Respondent)

Section 9(1)(vii)

DCIT, Circle-3(1)(2) Int. Taxation, New Delhi vs. Sheraton Overseas Mangaement Corporation, Noida

In the result, appeals are dismissed

ITA 1625/DEL/2023[2019-20]Status: DisposedITAT Delhi22 Sept 2023AY 2019-20

Section 9(1)(vii)

DCIT, Circle 3(1)(2), International Taxation, New Delhi vs. Sheraton Overseas Management Corporation, Noida

In the result, appeal is dismissed

ITA 1624/DEL/2023[2018-19]Status: DisposedITAT Delhi22 Sept 2023AY 2018-19

Bench: Shri Saktijit Dey, Hon’Ble Vice- & Dr. B.R.R. Kumarassessment Year: 2018-19 Dcit, Vs. Sheraton Overseas Circle -3(1)(2), Management Corporation, International Taxation, C/O- M/S. Nangia & Co. New Delhi Llp, A-109, Sector-136, Noida Pan :Aalcs8306H (Appellant) (Respondent)

Section 9(1)(vii)

DCIT Circle-3(1)(1), Intl. Taxation, New Delhi vs. Westin Hotel Management L.P., Noida

In the result, appeals are dismissed

ITA 1613/DEL/2023[2019-20]Status: DisposedITAT Delhi22 Sept 2023AY 2019-20

Bench: Shri Saktijit Dey, Hon’Ble Vice- & Dr. B.R.R. Kumarassessment Year: 2018-19 With Assessment Year: 2019-20 Dcit, Vs. Westin Hotel Management Circle -3(1)(1), L.P., International Taxation, C/O- Nangia & Co., A-109, New Delhi Sector-136, Noida, Uttar Pradesh Pan :Aaafw9088N (Appellant) (Respondent)

Section 9(1)(vii)

DCIT, Circle 3(1)(1), International Taxation, New Delhi vs. Westin Hotel Mmanagement L.P., Noida

In the result, appeals are dismissed

ITA 1612/DEL/2023[2018-19]Status: DisposedITAT Delhi22 Sept 2023AY 2018-19

Section 9(1)(vii)

Tumkur Minerals Pvt. Ltd, Vasco vs. Joint Commissioner of Income Tax, Margao Range, Margao

In the result, appeal of the assessee is allowed

ITA 401/PAN/2018[2011-12]Status: DisposedITAT Panaji20 Sept 2023AY 2011-12

Bench: Shri Inturi Rama Rao & Shri Partha Sarathi Chaudhury(Through Virtual Hearing)

For Appellant: Shri P.J. Pardiwalla, AdvFor Respondent: Smt. Ashwini Hosmani, Sr.DR

Section 195Section 40Section 5Section 9(1)(vii)

Agreement and that the amounts were exempt as they were received under a pre- 1976 agreement and were not exigible to tax under section 9(1)(vi) of the Income-tax Act, 1961. As far as the special engineering fees received for the year 1980-81 were concerned, the Appellate ... concerned, the Appellate Tribunal held that it could not be regarded as deemed to have accrued in India within the meaning of section 9(1)(vi) of the Income-tax Act. The Appellate Tribunal therefore held that the royalty on export sales was not taxable. On a reference : Held

Cae Simulation Training P.Ltd, New Delhi vs. DCIT, Circle-4(2), New Delhi

In the result, the appeal of the assessee is allowed for statistical purposes subject to the direction contained in para 9 above

ITA 2573/DEL/2022[2017-18]Status: DisposedITAT Delhi18 Sept 2023AY 2017-18

Bench: Shri G.S. Pannu, Hon’Ble & Ms. Astha Chandraasstt. Year: 2017-18

For Appellant: S/Sh. Rohit Jain, AdvocateFor Respondent: Shri Sanjay Kumar, Sr. DR

Section 143(3)Section 195Section 250Section 40Section 9Section 9(1)(vi)

erred on facts and in law in holding the payment/ remittances to Symbiotic to be in the nature of royalty' covered both under section 9(1)(vi) of the Act and Article 13(3) of the DTAA between India and UK. 3.2 That the CIT(A)/AO erred on facts

ACIT(Ltu-1), Mumbai vs. M/S. Tcs Ltd, Mumbai

ITA 5904/MUM/2019[2014-15]Status: DisposedITAT Mumbai15 Sept 2023AY 2014-15

Bench: Shri Vikas Awasthy () & Ms. Padmavathy S. ()

Section 10ASection 115JSection 14ASection 19Section 40Section 90(1)(a)

copyrighted article and not for transfer of any right in a copyright. Accordingly, it cannot be concluded as royalty under the provisions of section 9(1)(vi) of the Act and, therefore, not taxable. The Ld.AR accordingly submitted that no disallowance under section 40(a)(i) is warranted since provisions ... nature of royalty as per section 9(i)(vi) of the Act. In this context, he referred to Explanation-3 to section 9(1)(vi) of the Act as well as CBDT Circular no.621 dated 9th December 2019. Having held so, the Assessing Officer observed that since the assessee

Tata Consultancy Serrvices Limited, Mumbai vs. DCIT-1, Mumbai

ITA 5199/MUM/2019[2014-15]Status: DisposedITAT Mumbai15 Sept 2023AY 2014-15

Bench: Shri Vikas Awasthy () & Ms. Padmavathy S. ()

Section 10ASection 115JSection 14ASection 19Section 40Section 90(1)(a)

Bombardier Transportation Signal (Thailand) Limited, Thailand vs. ACIT, Circle Int. Taxation 1(1)(2), New Delhi

In the result, three appeals of the assessee are partly allowed as indicated above

ITA 726/DEL/2023[2016-17]Status: DisposedITAT Delhi31 Aug 2023AY 2016-17

Bench: Shri Narendra Kumar Billaiya & Shri Challa Nagendra Prasad

For Appellant: Shri Anubhav Rastogi, &

Section 143(2)Section 143(3)Section 144CSection 144C(1)Section 263Section 90(2)

addition of Rs.1,80,89,192/- being the amount received by the assessee from BTIN towards engineering services as royalty income under section 9(1)(vi) read with Explanation (2)(iva) of the Act. The Assessing Officer also brought to tax 10% of the value of off shore supply

Bombardier Transportation Signal (Thailand ) Limited, Thailand vs. DCIT, Circle-1(1)(2) Int. Taxation, Delhi

In the result, three appeals of the assessee are partly allowed as indicated above

ITA 2193/DEL/2022[2019-20]Status: DisposedITAT Delhi31 Aug 2023AY 2019-20

Bench: Shri Narendra Kumar Billaiya & Shri Challa Nagendra Prasad

For Appellant: Shri Anubhav Rastogi, &

Section 143(2)Section 143(3)Section 144CSection 144C(1)Section 263Section 90(2)

Bombardier Transportation Signal (Thailand ) Limited, Thailand vs. DCIT, Circle 1(1)(2) Int. Taxation, Delhi

In the result, three appeals of the assessee are partly allowed as indicated above

ITA 2192/DEL/2022[2018-19]Status: DisposedITAT Delhi31 Aug 2023AY 2018-19

Bench: Shri Narendra Kumar Billaiya & Shri Challa Nagendra Prasad

For Appellant: Shri Anubhav Rastogi, &

Section 143(2)Section 143(3)Section 144CSection 144C(1)Section 263Section 90(2)

Fox International Channels (Us) Inc. (Now Known As "Tfcf" International Channels (Us) Inc'), Mumbai vs. DCIT (Int Taxation) - 4(1)(2), Mumbai

In the result, appeal filed by the assessee is partly allowed

ITA 948/MUM/2023[2015-16]Status: DisposedITAT Mumbai25 Aug 2023AY 2015-16

Bench: Shri S. Rifaur Rahman, Hon'Ble & Shri Rahul Chaudhary, Hon'Blefox International Channels (Us) Inc V. Dcit (Intl. Taxation)-4(1)(2) 16Th Floor, Air India Building {Now Known As Tfcf International Nariman Point Channels (Us). Inc} Mumbai - 400021 C/O. Star House Urmi Estate, 95 Ganpatrao Kadam Marg Lower Parel (W), Mumbai - 400013 Pan: Aaacf8387J (Appellant) (Respondent)

Section 143(2)Section 144C(5)Section 147Section 148Section 151Section 9(1)(vi)

erred in holding that the distribution revenues earned by the Appellant fall within the meaning of the term 'Royalty' under Explanation 2 of Section 9(1)(vi) of the Act and accordingly, such distribution revenues are taxable in India.” 4. The relevant facts relating to the above grounds ... held that Page No. | 10 Fox International Channels (US) Inc. Broadcasting Reproduction Right is not covered under the definition of Royalty under section 9(1) (vi) of the Income Tax Act as well as Article 12 of the Treaty. Accordingly, the payment is not in the nature of Royalty

Cricket Australia, Australia vs. ACIT (International Taxation), Circle-1(2)(1), Delhi

In the result, the appeal of the assessee is partly allowed

ITA 1179/DEL/2022[2018-19]Status: DisposedITAT Delhi24 Aug 2023AY 2018-19

Bench: Shri Kul Bharat & Shri M.Balaganesh[Assessment Year : 2018-19] Cricket Australia, Vs Acit (International No.60, Jolimant Street, Jolimont Taxation), Victoria, Australia-3002. Circle-1(2)(1), Pan-Aaecc5341D Delhi. Appellant Respondent Appellant By Shri Percy Pardiwala, Sr.Adv. & Shri Nitesh Joshi, Adv. Respondent By Shri Vizay B.Vasanta, Cit Dr Date Of Hearing 06.06.2023 Date Of Pronouncement 24.08.2023 Order Per Kul Bharat, Jm : The Present Appeal Filed By The Assessee For The Assessment Year 2018- 19 Is Directed Against The Assessment Order Passed U/S 143(3) R.W.S. 144C(13) Of The Income Tax Act, 1961 (“The Act”) Dated 27.03.2022. 2. The Assessee Has Raised Following Grounds Of Appeal:-

Section 142(1)Section 143(2)Section 143(3)Section 144CSection 144C(5)Section 195Section 234ASection 234BSection 270ASection 9

payment for transfer of any copyright nor any scientific work so as to fall under the ambit of royalty under Explanation 2 to Section 9(1)(vi). 23. In so far as reference of phrase ‘process’ in Explanation 6, the same will not be applicable in the case ... taxable as ‘royalty’. Thus, we hold that the fee received towards live transmission cannot be taxed as ‘royalty’ in terms of Section 9(1)(vi) as held by the Hon’ble Jurisdictional High Court and also by the Co-ordinate Bench of ITAT. Accordingly, we decide this issue in favour

Nan Lian Ship Management Llc, Mumbai vs. JCIT (OSD)(Int Tax)-3(3)(1), Mumbai

In the result, the appeal filed by the assessee stands allowed

ITA 976/MUM/2023[2020-2021]Status: DisposedITAT Mumbai18 Aug 2023AY 2020-2021

Bench: Shri Amit Shukla, Hon'Ble & Shri S. Rifaur Rahman, Hon'Blenan Lian Ship Management Llc V. Jcit (Osd) (Intl. Tax) – 3(3)(1) 303, The Atrium Center Room No. 1630, 16Th Floor Khalid Bin Al Walled Road Air India Building Nariman Point, Mumbai – 400 021 Bur Dubai Po Box No. 82289 Dubai, Uae Nan Lian Ship Management Llc C/O. Nishit M. Gandhi Chambers 2 & 3, Ground Floor Cosmos Trade Place, Khatau Building Alkesh Dinesh Mody Marg Opp. Bombay Stock Exchange Fort, Mumbai - 400001 Pan: Aagcn0478E (Appellant) (Respondent)

Section 143(3)Section 144C(5)Section 172Section 44BSection 9(1)(vi)

amounts received by the Appellant could not be 2 Nan Lian Ship Management LLC branded as Royalty in terms of section 9(1)(vi) of the Act; (ii) The Ld. DRP failed to appreciate that the Appellant is a Non-resident Shipping Company and the Tax Residency Certificate ... whether the receipt should be taxed as ‘royalty’ for use of an equipment in terms of clause (iva) to Explanation 2 to section 9(1)(vi). 4 Nan Lian Ship Management LLC 9. The case of the assessee is that, since it is a non resident company engaged

Ge Precision Healthcare Llc, Karnataka vs. ACIT Circle International Tax 1(3)(1), New Delhi

In the result, appeal is allowed, as indicated above

ITA 404/DEL/2023[2020-21]Status: DisposedITAT Delhi14 Aug 2023AY 2020-21

Bench: Shri G.S. Pannu & Shri Saktijit Deyassessment Year: 2020-21

Section 115ASection 143(3)Section 144C(13)Section 4Section 56Section 56(1)Section 9(1)(vii)

assessment proceeding, he called upon the assessee to explain, as to why the receipts should not be treated as royalty taxable under section 9(1)(vi) of the Act and Article 12 of the tax treaty. In response to the show-cause notice, the assessee furnished its reply ... going through the submissions of the assessee, the Assessing Officer, having realized that the receipts cannot be taxed as royalty income, either under section 9(1)(vi) of the Act or Article 12 of India – Singapore DTAA, re-characterized the receipts as other income falling under section 56(1

DCIT, Circle-1(1)(2), Int. Taxation, New Delhi vs. Black Duck Software Inc., Usa

In the result, appeal is dismissed

ITA 602/DEL/2023[2017-18]Status: DisposedITAT Delhi10 Aug 2023AY 2017-18

Bench: Shri G.S. Pannu, Hon’Ble & Shri Saktijit Dey, Hon’Bleassessment Year: 2017-18

Section 9(1)(vi)

received by the assessee from certain entities in India is in the nature of royalty/Fee for Included Services (FIS) under section 9(1)(vi) of the Income-tax Act, 1961 (in short ‘the Act’) and Article 12 of India – USA Double Taxation Avoidance Agreement (DTAA). 4. Briefly the facts ... revenue received by the assessee for providing licenses and services to the Indian customers have been treated as royalty under section 9(1)(vi) of the Act. Thus, relying upon the decision making process adopted in past assessment years, the Assessing Officer, ultimately, concluded that the amounts received

Edenred Se (Formerly Known As Edenred Sa, Mumbai vs. Dy. Comm of Income Tax International Taxation-2(2), Mumbai

In the result, appeal of the assessee is partly allowed

ITA 1563/MUM/2022[2019-20]Status: DisposedITAT Mumbai04 Aug 2023AY 2019-20

Bench: Shri Vikas Awasthi () & Ms. Padmavathy S. ()

Section 143(3)Section 144C(13)

assessee with the Indian company in India. Accordingly, the AO came to the conclusion that income is taxable under the head royalty under section 9(1)(vi) of the Act. The AO also held that the income is also taxable as royalty under the provisions of India France DTAA. Accordingly

Asst CIT 16(2), Mumbai vs. Bsr and Co., Mumbai

In the result, appeal filed by the Revenue is dismissed

ITA 362/MUM/2017[2012-13]Status: DisposedITAT Mumbai02 Aug 2023AY 2012-13

Bench: Shri Aby T. Varkey, Hon'Ble & Shri S. Rifaur Rahman, Hon'Bleacit – 16(2) V. M/S. Bsr & Company Room No. 440, 4Th Floor Lodha Excelus, 1St Floor Aayakar Bhavan, M.K. Road Appolo Mills Compound Mumbai - 400020 N.M. Joshi Marg Mumbai - 400011 Pan: Aaifb7357B (Appellant) (Respondent) V. M/S. Bsr & Company Llp Acit – 16(2) Room No. 440, 4Th Floor Lodha Excelus, 1St Floor Aayakar Bhavan, M.K. Road Appolo Mills Compound Mumbai - 400020 N.M. Joshi Marg Mumbai - 400011 Pan: Aaafb9852F (Appellant) (Respondent) Acit – 16(2) V. M/S. Bsr & Co. Room No. 440, 4Th Floor Lodha Excelus, 1St Floor Aayakar Bhavan, M.K. Road Appolo Mills Compound Mumbai - 400020 N.M. Joshi Marg Mumbai - 400011 Pan: Aaifb4734C (Appellant) (Respondent)

Section 195Section 40

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “I”, MUMBAI BEFORE SHRI ABY T. VARKEY, HON'BLE JUDICIAL MEMBER AND