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2013 (8) TMI 952 - AT - Income TaxRe-assessment u/s 147 r.w.s 148 - Period of limitation - Royalty - Article 12(3) DTAA with USA - The assessee is a foreign company incorporated in USA and is also a tax resident of US. Assessee contended that re assessment was made merely on the change of opinion of AO. - HELD THAT:- Nothing is there on record even to suggest that the A.O made any inquiry whether the said receipt was taxable in the hands of the assessee under the normal provision of the Act and particularly u/s 9(1)(iv) of the Act as well as under Article 12 of the DTAA between India and USA - He initiated re-assessment proceeding within limitation period as mentioned in Section 147. Royalty - HELD THAT:- The agreement is for the “Licence or Sub-Licence for use of certain software rights” as described in Exhibit ‘A’ of the agreement. There is a clause for payment of fees and the fees are provided in schedule B. Relying on the judgement of Hon’ble Karnataka High Court in the case of Samsung Electronics co. Ltd. oths [2011 (10) TMI 195 - KARNATAKA HIGH COURT] payment made by the respondents to the non-resident supplier amounts to royalty and is rightly brought to tax in India. The assessee is not entitled to get the immunity of the DTAA between India and USA. When the decision of the Hon’ble High Court of Karnataka is available then it is not necessary for the Tribunal to show more wisdom unless some contrary decision on the issue of another High Court or the Supreme Court has been brought to our notice. In our opinion, all the decisions relied upon by the assessee are not helpful to decide the nature of payment received by the assessee in present case which is described as licence fee but in fact it is the royalty only.
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