Karnataka High Court
The Commissioner Of Income Tax vs M/S Intel Technology India Pvt Ltd on 26 November, 2009
Bench: K.L.Manjunath, Aravind Kumar
IN THE H§GI-I COURT OF KARNATAKA, BANGALGRE
DATED THIS THE 26TH DAY OF NoVEMB1§RI,V:2oos§"~..
PRESENT
THE HONBLE MR. JUSTICE K.L.MANJUNATH<.A
THE HONBLE MR. JUSTI(3_E ARA?/IND KU.M1xR__ ,.
1. The Commissionefof Ir;ico;11Vé4t_ax',"A.a _
International Taxation, " "
Rastrothana Buildin. '
1\¥I"upath_LInga*-Road, _,
Bangaioife. 5:" . "
2. The In_co1h;e:.tax Offic§:r,\ ;
Int£:rt1at1onalV'T.axation, _
Wafd_~ 1 9[ 1};-Ra St1.'o't-hana Building,
N1'upa'thu'nga._ Ro._aC'1~,~--Banga10re.
" _ [,'.;1jaVii;iti;V"IQidV. For M.V.SheshachaIa, Advocate)
M/Ts Intéi3iTréchno1ogy India Pvt. Ltd,
No. 136, Airport Road,
Bangafore 17.
Sri. M/s King and Partridge, Advocates)
Respondent:
Appellants:
This Appeal is filed under Section 260A Tax Act, 1961 praying to allow the appeal a1<1d'_pse_t- asi'd.e the order passed by the ITAT in ITA No.972gf--Ba1figv,:/' dated 26-4-2006 and confirm the order__p'a.sse.d by the Appellate Commissioner of Income 'I'fa><,"'Irifteri1atpio'r1.al ';
Taxation, Ward 19(1), Bangalore.
This appeal coming _ on hea:ir;g;,.
ARAVIND KUMAR J, deitvered-...'the follpwthge-,; H .JUI):G-AéEN_"'1j--~.._ This appeal is'kfiI'e'd assailing the order passed.._ in ITA No.972/saxtgy/E2-ooé, "f:e}t..4--20o6. At the time of the et<;1m--.issiof1.of:p'the'appe'al on 18-7-2007 the following substaritial has been formulated by this Cwt-all 14 _ 1_. Whether the Tribunal was correct in the assessee is not liable to deduct respect of payment made for purchase " o_t7 software as the same cannot be treated as A income liable to tax in India as Royalty or Scientific Work under section 9 of the Act read with Double Taxation Avoidance Agreements and treaties?
2. Whether the Tribunal ' holding that since the assessee h'adv'fiurch.a'sed.e_'4 oniy a right to use the software and not the entife copyright Aitseif; it payment cannot be *--ti;eated."as Roiyaitytétyas sper '' the Double Taxation Aifoidance Ztkgrevenient and Treaties which---.i_sf* heij1ef_7;ci'a}--..to'th.e assessee and consequently sectioridg should not taketfiito _consider_.atior-1.? Tribunal should have V. _ reco'rdVedw_a that it is under Section t'~.fi%x2 "and 13) and (4) of the gum, the .vv'chartge.abi1ity to tax or not of the receipt is it and having failed to obtain such a decision the assessee was bound to deduct tax " at source as held by the Apex Court in 239 iTR 587? {%@WH
4.Whether the assessee can questiorivthe taxability of the recipient in section 2O1--{i'}V 201(A) of the Act proceeding when . has to show only "without good "
reasons failed to deduct:.Jand"pay has not been shownin of case and non taxabilityg cannot a sufficient reason, "19_5'[2][V3}{4] of the Act certifica_te_is ':;L;~t;;ti::t1e;1?
5.Whether correct in holding. that ]_3aVyrr,_1_ent';i' partakes the charaeterfiof piirch_ase- isiaie of goods and treated as royalty payment "'1iabI_e to Iiicometi 2;---gDurir"1g 'course of arguments it is noticed tha_{_Et'ti1.e above-_ic1Vues:':ions of iaw have been answered by it this 24-9-2009 in ITA No.2808/2005 and *«eonnecte_d_ rnvatters by answering the same in favour of the revenue and against the assessee.
3. Following the said judgment questions of law formulated herein above favour ,of' the revenue and against the a's_sesseee. '=,']_I'he'"
allowed accordingly.