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2019 (4) TMI 2092 - HC - Income TaxRoyalty receipts - interpretation of Section 9(1)(vi), Explanation (2)(iii) and (iva) of the Income Tax Act, 1961, as well as Article 12(3) of the Indo US Double Taxation Avoidance Agreement (DTAA) - ITAT held that the payments received by the assessee, were not royalty - HELD THAT:- The provisions of the Indo-US DTAA, especially Article 12(3) is identical to the substantive Section 9(1)(vi), Explanation 2(iii) and (iva) of the Income Tax Act, 1961. Article 12(3) treats the entire subject matter in a composite manner. This Court is of the opinion that the Revenue’s arguments are unfounded because the judgment in New Skies Satellite [2016 (2) TMI 415 - DELHI HIGH COURT] specifically dealt with the provision, which the revenue relies upon, i.e. sub-clauses (iii) and (iva) of Explanation (2) to Section 9(1)(vi). This discussion is evident from paras 11, 14 and 28 in New Skies Satellite (supra). In these circumstances, the principle enunciated in Asia Satellite Telecommunications [2011 (1) TMI 47 - DELHI HIGH COURT] and applied in New Skies Satellite (supra), i.e. if the substance or content of subject matter dealt with and interpretation given, in a particular statute or identical subject matter, also needs similar treatment, in the context of the principle of international taxation. The only departure or exception would be if the contracting states agree to alter the terms of the treaty. New Skies Satellite (supra) also held that the mere change in law with retrospective application would not in any manner be treated as an act curative to the judgment of the court. Even if the amount were taxable, this would be covered by the judgment of this court in Director of Income Tax, International Taxation vs. GE Packaged Pover Inc, [2015 (1) TMI 1168 - DELHI HIGH COURT]
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