TMI Blog2020 (7) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... software by the assessee was not in the nature of Royalty under Article 12 of DTAA between India and Ireland. Since the treaty provisions are more beneficial, there is no merit in adjudicating the issue vis- vis amended provisions of section 9(1)(vi) - Ground of appeal raised by the assessee are thus allowed. - ITA No.3966/Del/2017 - - - Dated:- 9-7-2020 - MS. SUSHMA CHOWLA, VP SHRI PRASHANT MAHARISHI, AM For the Appellant : Sh. Tarandeep Singh, Adv. For the Respondent : Sh. Satpal Gulati, CIT DR ORDER PER SUSHMA CHOWLA,VP The present appeal filed by assessee is against order of DCIT, Circle- 2(2)(1), New Delhi dated 06.04.2017 relating to assessment year 2014-15 against the order passed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law, the AO has erred in levying interest under section 234A and 234B of the Act. 7. That on the facts and in law, AO has erred in not granting the credit of. Tax Deducted at Source (TDS') of Rs.58,05,595/-. 8. That on the facts and in circumstances of the case and in law, Assessing Officer has erred in initiating penalty proceedings under section 271(1)(c) of the Act against the Appellant. 3. The only issue raised in the present appeal is against order of the authorities below in holding that the consideration received by the assessee from supply/distribution of its copyrighted software products is chargeable to tax in India as income from Royalty as defined in Article 12 of Agreement for Avoidance of Double Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in DIT vs Ericson A.B., New Delhi (supra) and DIT vs Infrasoft Ltd. (supra) to come to a finding that use of copyrighted product is not Royalty . 6. The Ld.CIT DR for the Revenue placed reliance on the orders of the authorities below. However, he fairly admitted that similar issue has been decided by the Tribunal in assessee s own case for Assessment Year 2013-14. 7. We have heard the rival contentions and perused the record. Briefly in the facts of the case the assessee is a company incorporated in Ireland and during the year under consideration it was in receipt of certain sum towards Sale of Software and Provision for Support Services from its Indian Distributors. It is undisputed that the amount received by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2 at pages 8 to 9 of the order. The contentions of the assessee and the reliance placed on the decisions of Jurisdictional High Court as against the decision of Karnataka High Court (supra) and relied upon the order of Assessing Officer/DRP, Tribunal noted the contention of the assessee that the decision of Hon ble Karnataka High Court has been disagreed by Jurisdictional High Court in Infrasoft Ltd. (supra) in paras 98 99 of the judgement. Further, reference was also made to the decision of Hon ble Delhi High Court in DIT vs Nokia Network OY 358 ITR 259 (Del.). The Tribunal vide para 5 at page 12 of the order dated 26.11.2018, relied on the decision of Hon ble Jurisdictional High Court in Ericson A.B. (supra), and thereafter, referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee to its customers, we observe that all the arguments put forth by the AO and the assessee are considered and answered by the Jurisdictional High Court in these decisions. Further, the Delhi High Court in Infrasoft (supra) has specifically expressed its disagreement with the view taken by the Hon ble Karnataka High Court in the case of Samsung Electronics Co Ltd. (supra). Hence, the decisions relied by the Assessing Officer in the case of Samsung Electronics and GracemacCorpn. (supra) does not help the case of the Revenue, as we are under the Jurisdiction of the Hon'ble Delhi High Court. 5.3 Accordingly, respectfully following decision of the Hon'ble jurisdictional High Court in the case of Infrasoft Ltd. (supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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