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2014 (5) TMI 744 - AT - Income TaxNon-speaking order - Assessee in default u/s 201(1) of the Act or not – Payment of income chargeable to tax not made – Requirement to deduct TDS u/s 195 of the Act – Purchase of software – Scope of term Royalty u/s 9(1)(vi) of the Act – Held that:- Assessee contended that the order passed by the Commissioner is not a speaking order as none of the contentions of the assessee have been dealt with while rejecting them and adjudication has been made solely based on a case law in which facts were different as also assessee’s contentions were not dealt with – Relying upon Motorola Inc. vs. Dy. CIT [2005 (6) TMI 226 - ITAT DELHI-A] - where the software imported which is a shrink wrapped software or off the shelf software, same amounts to purchase of goods and not payment of royalties - The payment is for use of copy rights article and not for acquiring any copy right - the payments for import of software do not amount to payment of royalty chargeable u/s 9(1)(vi) of the Act - The payments partakes the character of purchase and sale of goods - the payee has no permanent establishment in India - no income is deemed to accrue or arise in India – thus, the provision of section195 is not applicable to the payment - the assessee has filed an application for admitting the additional evidences – the entire issues require a fresh adjudication at the level of CIT(A) – thus, the order of the CIT(A) is set aside and the matter is remitted back to the CIT(A) for fresh adjudication – Decided in favour of Assessee.
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