TMI Blog2019 (5) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 234B are consequential in nature - ITA Nos.195 to 197/PUN/2017 - - - Dated:- 29-3-2019 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Appellant : Shri Nikhil Pathak For The Respondent : Shri S.B. Prasad, CIT ORDER PER SUSHMA CHOWLA, JM: This bunch of three appeals filed by assessee are against separate orders of DCIT(International Taxation), Circle-2, Pune, all dated 29.11.2016 relating to assessment years 2010-11, 2011-12 and 2013-14 passed under section 144C(13) r.w.s. 143(3) r.w.s. 147 / 144C(13) r.w.s. 143(3) of the Income-tax Act, 1961 (in short the Act ). 2. All the three appeals relating to the same assessee for different assessment years on similar issue were heard together and are being disposed of by this consolidated order for the sake of convenience. In order to adjudicate the issues, we make reference to the facts and issues in ITA No.195/PUN/2017, relating to assessment year 2010-11. 3. The assessee in ITA No.195/PUN/2017, relating to assessment year 2010-11 has raised the following grounds of appeal:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company. It is prayed that the interest under section 234B levied by the Ld. AO be deleted. 4. Briefly, in the facts of the case, the assessee was non-resident foreign company. The assessee had received IT support services fees of ₹ 1,05,02,525/- from Sandvik Asia Pvt. Ltd. The case of assessee was picked up for scrutiny and the Assessing Officer in draft assessment order observed that the said receipts were not offered to tax. The Assessing Officer was of the view that payment received by assessee constitute fees for technical services as per section 9(1)(vi) and 9(1)(vii) of the Act as well as Article 12 of DTAA between Indian and Switzerland. The Assessing Officer then takes note of the services provided and also notes the fact that in the case of Sandvik Asia Pvt. Ltd. for assessment years 2008-09 and 2009-10 order under section 201(1) and 201(1A) of the Act was passed and the Assessing Officer held the payment under IT support services to the assessee in the nature of fees for technical services and taxable in India as per Article 12 of DTAA between India and Sweden as well as section 9(1)(vii) of the Act. He then refers to the amendment b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue and dismissed the plea of Revenue. The learned Authorized Representative for the assessee pointed out that ground of appeal No.1 raised by assessee against reopening of assessment under section 147 of the Act is not pressed. The issue raised vide grounds of appeal No.2 and 3 is on merits of case and the grounds of appeal No.4 and 5 were consequential in nature. He also pointed out that similar issue on merits has been raised in assessment years 2011-12 and 2013-14 and in assessment year 2011-12, the ground of appeal No.1 on initiation of re-assessment proceedings under section 147 of the Act is not pressed. 7. The learned Departmental Representative for the Revenue on the other hand, placed reliance on the orders of authorities below. 8. We have heard the rival contentions and perused the record. The assessee is non-resident and was providing software services to Sandvik Asia Pvt. Ltd. and also was providing IT support services to the said concern. The question which arises in the present appeal is whether the consideration received by assessee from the payer i.e. Sandvik Asia Pvt. Ltd. amounts to royalty or fees for included services o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hence, the present ground of appeal being raised. 25. On perusal of record and after hearing both the learned Authorized Representatives, the limited issue which arises vide present ground of appeal is whether the payment made by assessee to its associated enterprise for purchase of copyrighted article is royalty or not. 26. We find that the issue has already been decided by Pune Bench of Tribunal in the case of Allianz SE Vs. ADIT (supra). Further, the learned Authorized Representative for the assessee has drawn our attention to the invoices raised for providing support services and it is not case of payment of royalty as alleged by the Assessing Officer in this regard. Further, we have also decided similar issue in the case of John Deere India Pvt. Ltd. Vs DDIT (International Taxation) in ITA Nos.905 to 908/PUN/2015, relating to assessment years 2007-08 and 2008-09, order dated 23.01.2019. The relevant findings of the Tribunal are in paras 45 to 89 and the Tribunal in final analysis it was held as under:- 90. In conclusion, we hold that purchase of software by the assessee being copyrighted article is not covered by the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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