TMI Blog2010 (7) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... .) OF 2008 - - - Dated:- 30-7-2010 - ASHA VIJAYARAGHAVAN JUDICIAL MEMBER J. P.M. JAGTAP ACCOUNTANT MEMBER J. Appellant by : Shri Arvind Sonde Respondent by : Shri S.S. Rana ORDER PER P.M. JAGTAP, A.M. This appeal by the assessee is directed against the order of ld. CIT(A)- XXXIII, Mumbai, dated 31.12.2007 whereby he confirmed the addition of Rs. 6,22,16,584/- made by the A.O. on account of subscription income received by the assessee from Indian customers treating the same as royalty taxable in India as per Article 12 of the DTAA between India and Ireland. 2. The assessee in the present case is a company incorporated in the Republic of Ireland and is a resident of Ireland for tax purposes in terms of Article 4 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received total subscription fees of Rs. 6,22,16,584/- from various Indian clients. According to the assessee company, the said amount represented its business income and since it did not have any place of business in India during the year under consideration, the same was not taxable in India as per Article 7 read with Article 5 of the DTAA between India and Ireland. In support of this claim, reliance, inter alia, was placed by the assessee on the decision of Bangalore Bench of ITAT in the case of WIPRO vs ITO 278 ITR (AT) 57 wherein a similar subscription received by the assessee from WIPRO Ltd. under identical service agreement was held to be not chargeable to tax in India by the Tribunal after rejecting all the contentions raised on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the subscription income of the assessee as royalty which was taxable in India. 3. We have heard the arguments of both the sides and also perused the relevant material on record. It is observed that a similar issue as involved in the present case had come up for consideration before the co-ordinate bench of the Tribunal in the case of WIPRO Ltd. Vs. ITO (supra) wherein a similar subscription paid by WIPRO Ltd. to the assessee company under identical service agreement was sought to be held as chargeable to tax in India by the Revenue and M/s WIPRO Ltd. which had paid such subscription to the assessee company was treated as assessee in default for failure to deduct the tax at source from the said payment. The Tribunal, however, rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The experience mentioned in the agreement should be one s own experience in the realm of industrial, commercial and scientific and not compilation of somebody else s experience. Such experience should give rise to some known form of intellectual property rights. No such thing existed in the assessee s case. Thus, the receipt of web based material offered by GG outside India was not amenable for taxation in India. Consequently, the assessee had no obligation to deduct tax under section 195 of the Act. Therefore, the orders of the authorities below were cancelled and the tax liability under section 201(1) and interest levied under section 201(1A) both were deleted. 4. The decision rendered by the Tribunal in the case of WIPRO Ltd. (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer has very elaborately discussed how the AAR s decision in the case of Dun Bradstreet Espana SA is distinguishable in the appellant s case. I fully agree with his findings. 6. In the case of Union of India vs. Kamlakshi Finance Corpn. Ltd. 1991(55) ELT 433(SC), it was held by the Hon ble Supreme Court that principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. It was also observed by the Hon ble Supreme Court that if the order of an appellate authority is the subject matter of further appeal, that cannot furnish any ground for not following the same unless its operation has been suspended by a competent court. Hon ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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