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2019 (4) TMI 1426 - AT - Income TaxIncome accrued in India - Royalty receipts taxability in India - as per AO provision of satellite transmission services to its customers fall under the royalty definition as given in Section 9(1)(vi) and Article 12 of the India USA - Assessee qualifies as a tax resident of USA in terms of Article 4 of DTAA - HELD THAT:- It is not the case of the revenue that any change of fundamental facts happened for these assessment year so as to distinguish the same from those of the earlier years. In the case of Asia Satellites [2011 (1) TMI 47 - DELHI HIGH COURT] upheld the contention of the assessee and even subsequent to the amendment of Section 9(1)(vi) by the Finance Act, 2012 with retrospective effect by way of Finance Act, 2012, when the revenue filed the review petition, the Hon’ble High Court dismissed the review petition also. Further, post retrospective amendment by way of Finance Act, 2012 in Section 9(1)(vi) in the case of New Skies Satellite [2016 (2) TMI 415 - DELHI HIGH COURT] held that the condition with respect to taxability of satellite transmission services in India would remain the same for the DTAA and amendment to the Act with a retrospective or prospective cannot be read in a manner so as to extend the operation to the terms of international treaty. When the issue no longer remains res integra and there is no change in the fundamental facts permeating all these years, we are of the considered opinion, there would be no justification to take a different view from the consistent view taken for the earlier years. We, therefore, while respectfully following the above lines of decisions, held the issue in favour of the assessee and answer the issue stating that the income received by the assessee cannot be taxed as royalty in India.
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