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2020 (1) TMI 124 - AT - Income TaxCharacterizing subscription revenue received by the appellant in the nature of royalty or fee for technical services under the Act and under the Indian–United Kingdom Tax Treaty - PE in India - nature and character of subscription revenue received by the assessee from the customers in India - HELD THAT:- The assessee failed to bring on record any evidence to prove that the finding of facts recorded by the ITAT for earlier year [2020 (1) TMI 66 - ITAT MUMBAI] is incorrect. Therefore considering the facts and circumstances and also respectfully following the decision of the ITAT in assessee’s own case for earlier years, we are of the considered view that subscription charges received by the assessee from the customers in India is in the nature of royalty. We further are of the opinion that once the receipt in question has been decided as royalty in nature, then there is no need to go in to the question of assessee having PE in India. Article 13(6) can be pressed into service only in the case when the existence of PE of non-resident is not in dispute. In this case the assessee has contended before the lower authorities that it does not have any PE in India and under these facts and circumstances the provisions of Article 13(6) cannot be invoked in the case when the receipt is found as royalty. When the issue has been decided by the Tribunal against the assessee in the preceding assessment years more than once and no difference in facts obtaining in the impugned assessment year has been brought to our notice by the assessee. Adhering to the norms of judicial discipline, we respectfully follow the decision of the Tribunal on the issue, as referred to above, and hold that the assessee cannot take the benefit of Article–13(6) of India–UK Tax Treaty. Thus we hold that not only the subscription fee is in the nature of royalty but the provision of Article–13(6) of the Tax Treaty would not be applicable to the assessee. Accordingly, the grounds are dismissed.
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