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TMI Blog2020 (4) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... export of software. While making the assessment for assessment year 2009-10, the Assessing Officer, inter alia, disallowed software license purchased by the assessee at Rs. 1,72,41,400/- treating the same as royalty u/s. 9(1)(vi) on which the assessee has not deducted TDS u/s. 195 r.w.s. 40(a)(i). Further, he disallowed the payments of contribution towards PF at Rs. 84,30,994/- as the sums received by the assessee from its employees towards contribution to PF were made beyond the due date as per PF Act. Aggrieved, the assessee filed an appeal before the CIT(A). The Ld. CIT(A) sustained the disallowance made u/s. 9(i)(vi). With regard to the disallowance of payment of employees contribution to PF, the Ld. CIT(A) directed the AO to allow the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with and defining 'Royalty' cannot be made applicable to a situation of outright purchase and sale of a product. The Corpus Juris Secundum understands Royalty thus: "The word 'royalty' means a share of the product or profit reserved by the owner for permitting another to use the property, the share of the production or profit paid the owner; a share of the product or proceeds therefrom reserved to the owner for permitting the another to use the property; the share of the produce reserved to the owner for permitting another to exploit and use the property; a share of the profit, reserved by the owner for permitting another to use the property; the amount reserved or the rental to be paid the original owner of the whole estate." Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt decision in the case of CIT vs Industrial Security and Intelligence India Pvt. Ltd in Tax Case (Appeal) No. 585 & 586 of 2015 and MP No. 1/2015, dated 24.07.2015. Wherein, the assessee had remitted the employee contribution beyond the due date for payment but within the due date for filing the return of income. The Jurisdictional High Court following the decision of CIT vs Alom Extrusions Ltd. reported in 319 ITR 306 (SC) and Delhi High Court decision in the case of CIT vs Amil Ltd. reported in 321 ITR 508 upheld the tribunal decision that payment of PF and ESI made beyond the grace period/due date allowed under PF & ESI Act but before the due date of filing the income tax return cannot be disallowed u/s. 43 of the Act. Further, the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue that the Acqueon Technologies Ltd Inc. USA was paid over and above the purchase price, its treatment that the impugned transaction falls u/s. 9(1)(vi) is not valid and hence, the corresponding grounds of the assessee are allowed. 6. With regard to the delayed payment of the employees PF contribution, since the AO has not examined as to whether they were remitted within the due date of filing the return of income u/s. 139(1) of the Act, this issue is remitted back to the AO for examination. If the assessee has remitted the sum before the due date of filing the return u/s. 139(1), the AO shall allow the deduction claimed by the assessee in accordance with the Jurisdictional High Court decision, supra. 7. In the result, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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