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TMI Blog2019 (12) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... lutely similar and the issues raised in both these appeals are covered by the decision of the Pune Bench of the Tribunal in assessee‟s own case. 3. These cases were therefore heard together. Since facts common and issues are similar, these cases are being disposed of vide this consolidated order. For the sake of convenience, we would first take up ITA No.1255/PUN/2017 for adjudication. ITA No.1255/PUN/2017 A.Y.2009-10 4. In this case, the findings of the Assessing Officer at Para 4 of his order is that the assessee had made payments amounting to Rs. 42,62,70,626/- to Deere & Co, USA, the Associated Enterprise (AE) without complying with the provisions related to deduction of tax at source claiming said payment as "reimbursement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , USA, the Associated Enterprise (AE) are held to be in the nature of FIS/Royalty within the meaning of section 9(I)(vi) & 9(I)(vii) of the Act and Article 12 of the DTAA and therefore, provisions of section 195 of the Act are squarely applicable for payment of license fee and the assessee was bound by law to deduct the taxes before remitting the money to non-residents and thus, amount of Rs. 19,34,64,266/- was added to the total income of the assessee. 5. The Ld. CIT(Appeals) recorded his decision from Para 6.3 onwards of his order. That before the Ld. CIT(Appeals) a detailed written submission was filed by the assessee which is on record. It is also pertinent to note that the assessee preferred appeal against the order u/s.201 & 201(1A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings of the Tribunal are as under : "90. In conclusion, we hold that purchase of software by the assessee being copyrighted article is not covered by the term "royalty‟ under section 9(1)(vi) of the Act. Where the assessee did not acquire any copyright in the software, is not covered under Explanation 2 to section 9(1)(vi) of the Act. We further hold that amended definition of "royalty‟ under the domestic law cannot be extended to the definition of "royalty‟ under DTAA, where the term "royalty‟ originally defined has not been amended. As per definition of "royalty‟ under DTAA, it is payment received in consideration for use or right to use any copyright of literary, artistic or scientific work, etc.; thus, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea of assessee that the said lease line charges are at best reimbursement of expenses and hence, not liable for deduction of tax at source. The grounds of appeal No.4 to 5 are allowed. ................... 106. In the facts before Ahmedabad Bench of Tribunal, where services rendered by service provider were general in nature and which did not involve any transfer of technology, it was held that where the onus was on Revenue authorities to demonstrate that these services too involve any transfer of technology and since that onus was not discharged, then the payment was not covered by the definition of "Fees for Technical Services‟. The facts of the said case are similar to the facts before us, wherein training availed by employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Supreme Court in V.M. Salgaocar & Bros. (P.) Ltd. Vs. CIT (supra) and Palam Gas Service Vs. CIT (supra). Accordingly, we hold that where the Hon'ble Supreme Court has only dismissed SLP, then no ruling on principle being laid down by the Apex Court, the proposition laid down by the jurisdictional High Court of Bombay in DIT Vs. M/s. Mark & Spencer Reliance India P. Ltd. (supra) would rule. Accordingly, we further hold that the assessee having deducted tax at source out of salary paid to employees deputed, has not defaulted under section 201(1) / 201(1A) of the Act. The grounds of appeal No.9 to 12 are thus, allowed." 6. Before us, no material has been placed by Revenue to demonstrate that the order of Tribunal in assessee‟s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the issue raised in this appeal is covered by the decision of the Pune Bench of the Tribunal in assessee‟s own case in ITA No.627/PUN/2017 for the assessment year 2009-10. In Para 12 of the Tribunal‟s order, it was held and observed as follows: "12. Now, coming to enhancement made by CIT(A) i.e. on account of payment for web based training fees and also payment against reimbursement of expats salaries. The first issue was adjudicated by Tribunal vide para 102 onwards and vide para 106 it was concluded that in the absence of any transfer of technology, the payment is not covered under the definition of "fees for technical services‟ and hence, there was no liability upon the assessee to deduct tax at source out of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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