TMI Blog2022 (3) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble High Court binds the learned Assessing Officer in the same way as it binds this Tribunal also. We, therefore, do not find any need to remand the matter back to the file of the learned Assessing Officer - issue decided in favour of assessee. - Decided in favour of assessee. - ITA No. 6194/DEL/2018, ITA No. 6195/DEL/2018, ITA No. 6196/DEL/2018, ITA No. 6197/DEL/2018 - - - Dated:- 14-2-2022 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND MS. ASTHA CHANDRA, JUDICIAL MEMBER For the Assessee By : Shri Nageshwar Rao, Adv., Ms. Deepika Agarwal, Adv For the Department By : Shri N.C. Swain, CIT- DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- The above captioned four separate appeals by the assessee are preferred against the order dated 31.07.2018 framed under section 144C(13) r.w.s 143(3)/254 the Income-tax Act, 1961 [hereinafter referred to as 'The Act'] pertaining to Assessment Years 2007-08 to 2010-11. 2. Since common issues are involved in all these four appeals, they were heard together and are disposed of by this common order for the sake of convenience and brevity. 3. For the sake of our convenience, we are considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1961, Ld. DRP and Ld. AO have erred, in determining income of the Appellant for subject Assessment Year at INR 799,99,60,616 being amount received by Microsoft Regional Sales Corporation outside India for sale to distributors from India and thereby, completely ignored the fact that payments received by the Appellant from licensing of manufacturing and distribution rights to MO totally outside India was INR 479,99,76,369 only. Other Grounds 3. That on facts and in circumstances of the case and in law, the Ld. DRP and Ld. AO have erred in dismissing the arguments taken by the Appellant that interest under section 234B of the Act is not applicable since the alleged royalty income is subject to tax deduction at source. 4. That on facts and in circumstances of the case and in law, the Ld. AO has erred in applying the tax rate of 15% on the alleged royalty income instead of beneficial tax rate of 10% plus applicable surcharge and education cess prescribed under section 115 A of the Income-tax Act, 1961. 5. That on the facts and in the circumstances of the case and in law, the Ld. AO has erred in initiating penalty proceedings under section 271(1 )(c) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of such property. Since the computer program is a literary work within the meaning of section 2(ffc) and 2(o) of the Copyright Act, the consideration received will be in the nature of Royalty if it is in respect of transfer of all or any rights in such work in terms of clause (v) of Explanation 2 of section 9(1)(vi) of the Act. 9. The Assessing Officer further observed that the payment for the software is the payment for design or model as the software includes design or model. The payment for the software is the payment for information concerning industrial, commercial and scientific experience as the software includes such information. The payment for the software is the payment for trademark as the trademark is involved in such software. 10. Referring to various judicial decisions and trying to distinguish the facts of the case in hand, with the facts of the case of Infrasoft Ltd [supra], the Assessing Officer came to the conclusion that the entire sum received by the assessee is taxable as Royalty in the hands of the assessee. 11. Objections were raised before the DRP but were of no avail. 12. Before us, the ld. counsel for the assessee drew our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. On a careful reading of the facts of Infra-soft Ltd (supra), as could be culled out from paragraphs 3 to 12 we find that the facts in both the cases are identical and the issue that was dealt with is also identical. We, therefore, do not have any hesitation in our mind to hold that in view of the decision of the Hon'ble jurisdictional High Court in the case of Infrasoft (supra), the issue involved in this matter is no longer res integra and has to be answered by stating that there is no transfer of any right in respect of copyright by the assessee and it is the case of mere transfer of copyrighted article and the payment was for a copyrighted article and represents the purchase price of an article and cannot be considered as royalty even under the Income Tax Act, 1961 or under the DTAA. When once we reach such a conclusion, we do not find any need for further verification of any fact at the end of the Assessing Officer. Insofar as the law laid down by the Hon'ble High Court is concerned, whether or not this particular judgement was available before the Assessing Officer at the time of framing of the assessment, it makes little difference because the decision of the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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