Income Tax Appellate Tribunal - Ahmedabad
The Dy.Dit, (Intl. Taxn.)- 1,, ... vs Vodafone West Ltd., Ahmedabad on 12 July, 2024
आयकर अपीलीय अिधकरण,
अिधकरण अहमदाबाद यायपीठ "डी", अहमदाबाद ।
IN THE INCOME TAX APPELLATE TRIBUNAL
" D " BENCH, AHMEDABAD
सु ी स ु च ा का बले, या यक सद य एवं
ी मकरं द वसंत महादे वकर, लेखा सद य के सम ।
]
]
BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER
AND
SHRI MAKARAND V. MAHADEOKAR, ACCOUNTNAT MEMBER
आयकर अपील सं /ITA No.2398/Ahd/2014
नधा रण वष /Assessment Year : 2013-14
The DCIT (International Vodafone West Ltd.
Taxation)-1 बनाम/ Vodafone House
Ahmedabad v/s. Corporate Road
Prahladnagar
Off S.G. Highway
Ahmedabad-380 051
थायी ले खा सं . / PAN: AAACF 1190 P
अपीलाथ(/ (Appellant) )*यथ(/ (Respondent)
Assessee by : Shri Dinal Shah, AR
Revenue by : Shri Sudhakar Verma, Sr.DR
सन
ु वाई क तार ख/ Date of Hearing : 04/07/2024
घोषणा क तार ख / Date of Pronouncement: 12/07/2024
आदे श/O R D E R
PER SHRI MAKARAND V. MAHADEOKAR, AM:
This appeal is filed by the Revenue as against the order passed by the Ld.Commissioner of Income-tax(Appeals)-Gandhinagar (Ahmedabad) [hereinafter referred to as "the Ld.CIT(A)"], dated 02/06/2014, arising out of the assessment order passed by the Dy.Director of Income-tax (International Taxation)-1, Ahmedabad (AO) under section 201(1) & 201(1A) ITA No.2398/Ahd/2014 The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 2 of the Income Tax Act, 1961 (hereinafter referred to as "the Act") dated 08/11/2013 relevant to the Assessment Year (AY) 2013-14.
Facts of the case:
2. The Assessee, Vodafone West Ltd. (VWL) is a Cellular Mobile Telephony service provider in the State of Gujarat. On verification of certificates in Form 15CA/CB dated 27-02-2013 and 05-03-2013, the AO found that assessee had made remittances amounting to Rs 6,05,56,914/- to MYCOM (UK) Ltd. on account of software licenses. It was also found that TDS u/s 195(1) of the Act was not deducted on these foreign remittances.
2.1. The AO, on perusal of details (agreements, etc.) submitted by the assessee during the course of verification of the said payments, found that these payments on account of software licenses to Mycom (UK) Ltd. were in the nature of royalty payments and are chargeable to tax as royalty u/s. 9(1)(vi) read with corresponding Articles of relevant DTAA. 2.1 2.2. The AO concluded that tax was required to be withheld as the payments are chargeable to tax u/s.9(1) (vi) r.w.s. 195 of the Act read with corresponding Articles of relevant DAA.
2.3. Therefore, the AO issued show-cause notice to the assessee as to why the assessee should not be treated as assessee in default for failure to deduct tax before making these payments to Mycom (UK). The details of payments are:-
ITA No.2398/Ahd/2014The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 3 Sl. No(s). Financial Year Nature of remittance Amount (in Rs.)
1. 2012-13 Software license 3,00,65,010/-
2. 2012-13 Software license 3,04,91,904/-
Total ..... 6,05,56,914/-
2.4. In response to the show-cause notice, the assessee submitted its reply vide letter dated 25-10-2013, the brief summary of the reply is as under:
1. VWL has purchased standard off-the-shelf software from Mycom for monitoring quality, performance and capacity of its mobile network.
The software also helps VWL to monitor the call rates and manage any network trafficking at peak calling hours.
2. The software products are standardized and are not designed or customized for VWL.
3. VWL has not acquired any rights in the standard software copyright program, so that it can be exploited commercially. Hence, VWL has no rights in the copyright of software for the purpose of copying, modification etc of the standard software product.
4. All copyright, or other intellectual property rights, in the standard software products and associated documentation, designs, configuration etc remain the property of Мусоm.
5. Mycom does not supply any know-how or the source code in the software product to VWL.
2.5. The assessee further stated that VWL made a payment for use of the standard Mycom software, without obtaining any rights towards creation of copies or modification or adaptation of the particular standard software.
2.6. About the taxability of payment for supply of standard off the shelf software as royalty, the assessee stated that -
ITA No.2398/Ahd/2014The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 4 • Mycom is a company incorporated in the United Kingdom ('UK') and is also a tax resident of UK. (Copy of the tax residency certificate obtained by Mycom from UK tax authorities was submitted to the AO).
• Mycom is eligible to claim the benefits conferred by the Double Taxation Avoidance Agreement entered into between India and United Kingdom (India-UK tax treaty).
• As per section 90 of the income-tax Act, 1961, the provisions of the Act or the provisions of the treaty would apply to the extent they are more beneficial to the assessee.
• In the instant case, as per provisions of India-UK tax treaty, payment for purchase of software is not taxable in India.
2.7. Therefore, applying the beneficial provisions of the India-UK tax treaty, VWL decided not to deduct taxes on said payments made to Mycom. The assessee further submitted to AO that -
As per Article 13(3) of the India-UK tax treaty, the term 'royalty' has been defined as under:
(a) payments of any kind received as a consideration for the use of, or the right to use, any copyright of a literary, artistic or scientific work, including cinematograph films or work on films, tape or other means of reproduction for use in connection with radio or television broadcasting, any patent, trademark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience; and
(b) payments of any kind received as consideration for the use of, or the right to use, any industrial, commercial or scientific equipment, other than income derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic.ITA No.2398/Ahd/2014
The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 5 2.8. The term "use or the right to use any copyright" has also been explained by international commentaries for the purpose of classification of royalty as under:
• Payment made for acquiring rights to commercially exploit a copyright like right to reproduce the copyright, right to give copyright on commercial rental would be considered as payment for the use or right to use a copyright;
• Payment made for acquiring limited rights to enable the user to operate the program cannot be considered as a right to use any copyright.
2.9. As per assessee, payment made by VWL is only towards use of the standard Mycom software, without any further right in the copyright of the standard software. Based on the reading of the definition of the royalty under India-UK tax treaty and legal precedents (discussed below) it is submitted that the payment is for the acquisition of off the shelf software product (similar to purchase of book from a bookshelf) and is not consideration for right to exploit an intellectual property right or copyright as specified in the India-UK tax treaty. A mere user right is a limited right and consideration paid for acquisition of copyrighter product without right to exploit copyright cannot be treated as royalty as per the provisions of India-UK tax treaty.
2.10. The Assessee further stated that the payment made by VWL was towards the limited right to use the standardized software for its own business purpose, without any right to commercially exploit the copyright ITA No.2398/Ahd/2014 The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 6 in the software. The ownership of the copyright in the standardised software remains with Mycom and it is not transferred to VWL. 2.11. Assessee further submitted that as the payment made by VWL is towards use of standard Mycom software, which is a copyrighted article, the same would not be treated as royalty income under provisions of the Article 13 of India-UK tax treaty. Thus, payment made by VWL to Mycom would not be subject to tax in India as per provisions of Article 13 of India- UK tax treaty.
2.12. The Assessee also stated that as payments made by VWL to Mycom does not qualify as royalty under India-UK tax treaty, the said payments would be classified as business profits under Article 7 of the India-UK tax treaty. Assessee on the basis of letter from Mycom letter dated 12 September 2012, submitted that Mycom does not have a permanent establishment in India and in absence of permanent establishment of Mycom in India, business profits arising to Mycom from sale of software would not be taxable in India as per Article 7 of the India-UK tax treaty.
2.13. The AO, in his order, referring to Explanation 3 and 4 of section 9 of the Act, concluded that the payment under consideration is towards transfer of right and after reproducing definition of royalties from clause 13 of the DTAA concluded that the payment is relating to royalty as it includes payment for the use of copyright of literary work. He adopted definition of "literary work" from section 2(o) of the Copyright Act,1957. The AO also referred the agreement entered into by Mycom with the assessee and reproduced the releant clauses of the agreement.
ITA No.2398/Ahd/2014The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 7 2.14. The AO also placed reliance on the judgement of Hon'ble Karnataka High Court in case of Samsung Electronics Co.Ltd. and others, 345 ITR 494(Kar.) wherein it was held that a right to make a copy of the software and use it for internal business by making copy of the same and storing the same in the hard disk of the designated computer and taking back-up copy would itself amount to copyright work u/s 14(1) of the Copyright Act,1957.
2.15. He concluded that since the assessee is given license which falls in the category of copyright, payment fall in the category of royalty as per DTAA and therefore would be taxable.
2.16. The AO passed order u/s 201(1) of the Act and determined liability of TDS payable along with interest u/s 201(1A) of the Act.
3. Aggrieved by the order of AO, the assessee preferred an appeal before the Ld.CIT(A), who allowed the appeal of the assessee by deleting the demand raised by the AO. While passing his order, the Ld.CIT(A) noted following points:
1. The assessee has not provided any specifications or given any acceptance to customise the software to Mycom.
2. Various clauses of the agreement substantiate that the software purchased is a standard one.
3. The software purchased by the assessee is not a customised software but a standard software.
4. The payment is made towards use of standard Mycom software, without any further right in the copyright of the standard software and it is for purchasing off the shelf software product (similar to purchase of book from a bookshelf) and it is not for the right to ITA No.2398/Ahd/2014 The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 8 exploit an intellectual property right or copy right as specified in India-UK tax treaty.
5. As per the agreement, no any right to copy/ reproduce granted by Mycom to the assessee. The assessee is merely provided the access to the copyrighted software which the assessee uses for monitoring quality performance and capacity of its mobile network.
6. Mycom does not provide the assessee the right to use the Copyright embedded in the software.
4. The Ld.CIT(A) thus noting these points concluded that such payment made towards acquisition of copyrighted product without right to exploit copyright and, hence, should not be treated as royalty as per the provisions of India-UK tax treaty.
4.1. To conclude this, the Ld.CIT(A) placed reliance on decision of Hon'ble Delhi High Court in case of DIT Vs. Infrasoft Ltd. (264 CTR 329), wherein the Hon'ble High Court held that amount received towards the license agreement for allowing the use of software cannot be considered as Royalty. The Ld.CIT(A) further found support of this decision from the OECD Commentary on Model Convention in this regard.
4.2. In respect of AO's reliance on the judgement of Hon'ble High Court of Karnataka in case of Samsung Electronics (supra), the Ld.CIT(A) stated that where the decision of jurisdictional court is not available and there are differing views of two different High Courts, the view in favour of assessee should be considered. For this, he relied on the judgement of Hon'ble Supreme Court in case of Vegetable Product Limited (88 ITR 192).
ITA No.2398/Ahd/2014The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 9
5. Not satisfied with the order of Ld.CIT(A), the Revenue is in appeal before us with the following grounds of appeal:
"1. Issue of Royalty:
i. The Id. CIT(A) has erred in law and on facts in not treating the payment made for purchase of software license as royalty under Article 12 of India- UK tax treaty.
ii. The Ld. CIT(A) has erred in law and on facts in stating that as per the terms of agreement software purchased by the assessee is not a customized software but a standard off the shelf software.
iii. The Ld. CIT(A) has erred in law and on facts in stating that payment has been made for acquisition of copyrighted article and has not been made for use of copyright and the same does not amount to transfer of right to use the copyright for internal business as per the terms of agreement and therefore should not be treated as royalty as per the relevant DTAA.
iv. The Ld. CIT(A) has erred in law and on facts in stating that no right has been transferred to the assessee for making copies of software therefore the payment for the same does not constitute royalty as per relevant DTAA.
v. The Ld. CIT(A) has erred in law and on facts in placing reliance on the judgment of Hon'ble Delhi High Court in the case of Infrasoft Ltd instead of judgment of Hon'ble Karataka High Court in the case of Samsung Electronics Co. Itd. & others of which the facts are more applicable to the case at hand.
2. Applicability of Section 195A of the Act:
The Ld. CIT(A) has erred in law and on facts in not adjudicating the issue of computing the tax liability under section 201(1) by applying the provisions of section 195A of the Act and thereby grossing up the payment made by the assessee on the basis that the same is net of taxes. It is therefore prayed that the stand of the AO be upheld.
3. Computation/levy of interest u/s 201(1A) of the Act:
The Ld. CIT(A) has erred in law and on facts in not adjudicating the issue of levying/computation of interest U/s 201(1A) of the Ac. It is therefore prayed that the stand of the AO be upheld.
4. Initiation of penalty proceedings u/s 271C of the Act:ITA No.2398/Ahd/2014
The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 10 The Ld. CIT(A) has erred in law and on facts in not adjudicating the issue of levying/computation of penalty u/s 271C of the Act. It is therefore prayed that the stand of the AO be upheld.
5. The appellant craves leave to add/alter/modify/delete any of the grounds of appeal at the time of hearing."
On the Grounds of appeal:
6. During the course of hearing before us, the Ld.Authorised Representative (AR) for the Assessee relied on the order of the Ld.CIT(A). He explained the issue stating that it is related to assessee's acquiring standard product like buying a books from the bookshelf without its copyright. He also submitted the copy of the agreement between the assessee and Mycom (UK) Ltd. He also explained the relevant clauses of the agreement more particularly clause-10 which is dealing with Intellectual Property Rights. The clause-10.5 is reproduced herewith for ready reference:
"10.5. For use with licenses to Supplier Standard Software purchased hereunder end in addition to the licenses granted in the EULA incorporated in Clause 10.7 below. the Supplier hereby grants and shall procure that all other Supplier Group Companies (if applicable) grant to Vodafone a royalty-free, non-exclusive, within India, perpetual, irrevocable (except for material breach by Vodafone), licence to use, and right to Vodafone to allow any Third Party Supplier and Qutsourcer lo use, the Supplier's Background IPR (including Supplier Standard Software) es per terms of this Agreement."
6.1. The Ld.AR also reiterated that as per agreement the assessee cannot commercially exploit the software and its right.
6.2. The Ld.AR also placed reliance on the judgement of Hon'ble Supreme Court in case of Engineering Analysis Centre of Excellence(P.) ITA No.2398/Ahd/2014 The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 11 Ltd. Vs CIT [2021] 125 taxmann.com 42 (SC). The relevant paras from the said judgement are reproduced hereunder:
"117. The conclusions that can be derived on a reading of the aforesaid judgments are as follows:
i) Copyright is an exclusive right, which is negative in nature, being a right to restrict others from doing certain acts.
ii) Copyright is an intangible, incorporeal right, in the nature of a privilege, which is quite independent of any material substance.
Ownership of copyright in a work is different from the ownership of the physical material in which the copyrighted work may happen to be embodied. An obvious example is the purchaser of a book or a CD/DVD, who becomes the owner of the physical article, but does not become the owner of the copyright inherent in the work, such copyright remaining exclusively with the owner.
iii) Parting with copyright entails parting with the right to do any of the acts mentioned in section 14 of the Copyright Act. The transfer of the material substance does not, of itself, serve to transfer the copyright therein. The transfer of the ownership of the physical substance, in which copyright subsists, gives the purchaser the right to do with it whatever he pleases, except the right to reproduce the same and issue it to the public, unless such copies are already in circulation, and the other acts mentioned in section 14 of the Copyright Act.
iv) A licence from a copyright owner, conferring no proprietary interest on the licensee, does not entail parting with any copyright, and is different from a licence issued under section 30 of the Copyright Act, which is a licence which grants the licensee an interest in the rights mentioned in section 14(a) and 14(b) of the Copyright Act. Where the core of a transaction is to authorize the end-user to have access to and make use of the "licensed" computer software product over which the licensee has no exclusive rights, no copyright is parted with and consequently, no infringement takes place, as is recognized by section 52(1)(aa) of the Copyright Act. It makes no difference whether the end-user is enabled to use computer software that is customised to its specifications or otherwise.
ITA No.2398/Ahd/2014The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 12
v) A non-exclusive, non-transferable licence, merely enabling the use of a copyrighted product, is in the nature of restrictive conditions which are ancillary to such use and cannot be construed as a licence to enjoy all or any of the enumerated rights mentioned in section 14 of the Copyright Act, or create any interest in any such rights so as to attract section 30 of the Copyright Act.
vi) The right to reproduce and the right to use computer software are distinct and separate rights, as has been recognized in SBI v. Collector of Customs, 2000 (1) SCC 727 (see paragraph 21), the former amounting to parting with copyright and the latter, in the context of non-exclusive EULAs, not being so."
6.2.1. This judgement of Hon'ble Supreme Court also decided the issue relating to royalties contained in Article 12 of the DTAAs, which clarified that there is no obligation on the persons mentioned in section 195 of the Act to deduct tax at source, as the EULAs in the facts of these cases do not create any interest or right in such end-users which would amount to the use of or right to use any copyright. The relevant paras are reproduced herewith for ready reference:
CONCLUSION "168. Given the definition of royalties contained in Article 12 of the DTAAs mentioned in paragraph 41 of this judgment, it is clear that there is no obligation on the persons mentioned in section 195 of the Income Tax Act to deduct tax at source, as the distribution agreements/EULAs in the facts of these cases do not create any interest or right in such distributors/end-users, which would amount to the use of or right to use any copyright. The provisions contained in the Income Tax Act (section 9(1)(vi), along with explanations 2 and 4 thereof), which deal with royalty, not being more beneficial to the assessees, have no application in the facts of these cases.
169. Our answer to the question posed before us, is that the amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise ITA No.2398/Ahd/2014 The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 13 to any income taxable in India, as a result of which the persons referred to in section 195 of the Income Tax Act were not liable to deduct any TDS under section 195 of the Income Tax Act. The answer to this question will apply to all four categories of cases enumerated by us in paragraph 4 of this judgment."
7. The Departmental Representative on the other hand relied on the order of AO.
8. We have heard the rival contentions and perused the material available on record. We find that the agreement in question between VWL and Mycom i.e. EULAs in question do not grant any interest or right to the end-user that would amount to the use of, or the right to use, any copyright. Consequently, the payments made under these agreements do not constitute royalties.
8.1. Article-13 of the Double Taxation Avoidance Agreements (DTAAs) between India-UK defines royalties in a manner that does not encompass the payments made for the use of computer software under End User License Agreements (EULAs). Section 195 of the Income Tax Act, 1961, mandates the deduction of tax at source on payments to non-residents, only when such payments are chargeable to tax in India. The payments made in the present case do not fall under the definition of royalties as per the DTAA, and hence, are not chargeable to tax in India. Section 9(1)(vi) of the Income Tax Act, along with Explanations-2 and 4, defines royalty for domestic purposes. However, since these provisions are not more beneficial to the assessee than the DTAA, they are not applicable in the present case, in accordance with section 90(2) of the Act.
The Judicial Pronouncements Referenced in the cases are:
1. Engineering Analysis Centre of Excellence Private Limited v. CIT [2021] 432 ITR 471 (SC).ITA No.2398/Ahd/2014
The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 14 The Supreme Court held that payments made by resident Indian end- users/distributors to non-resident computer software manufacturers/ suppliers are not royalties and therefore not liable for TDS under section 195 of the Income Tax Act.
2. Samsung Electronics Co. Ltd. v. Deputy Director of Income Tax [2011] 245 CTR 481 (Kar.).
The Karnataka High Court ruled that payments for the use of software are royalties, but this decision was overturned by the Supreme Court in the Engineering Analysis case.
8.2. The primary ground raised by the revenue is that the payments made by resident Indian end-user to non-resident computer software manufacturers/suppliers should be subject to tax deduction at source under section 195 of the Income Tax Act, 1961. The revenue contends that these payments constitute royalties as per section 9(1)(vi) of the Act and, therefore, are liable for TDS.
8.3. Based on the definition of royalties contained in Article-13 of the relevant DTAA, it is evident that these payments do not fall under the purview of royalties. The EULAs do not create any interest or right in the distributors/end-users that would amount to the use of or right to use any copyright. Therefore, there is no obligation on the persons mentioned in section 195 of the Income Tax Act to deduct tax at source. The provisions of section 9(1)(vi) and its explanations, not being more beneficial to the assessee than the DTAA, are not applicable in these cases.
ITA No.2398/Ahd/2014The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd.
Asst. Year : 2013-14 15 8.4. The Revenue also argues that the amounts paid to non-resident computer software manufacturers/suppliers are taxable in India as they constitute income arising from the use of copyright, which should be taxed as royalties.
8.5. The amounts paid by resident Indian end-users to non-resident computer software manufacturers/suppliers, as consideration for the use of the computer software through EULAs, do not constitute the payment of royalties for the use of copyright in the computer software. Consequently, these payments do not give rise to any income taxable in India. Therefore, the persons referred to in section 195 of the Income Tax Act were not liable to deduct any TDS on these payments.
8.6. Thus, the decisions of the Ld.CIT(A) are upheld. Therefore, Ground No. 1 of the Revenue's appeal is dismissed. Since the grounds related to applicability of section 195A, 201(1A) and penalty proceedings u/s 271C are consequential are also dismissed.
9. In the result, appeal of the Revenue stands dismissed. Order pronounced in the Open Court on 12th July, 2024 at Ahmedabad.
Sd/- Sd/- (SUCHITRA KAMBLE) (MAKARAND V. MAHADEOKAR) JUDICIAL MEMBER ACCOUNTANT MEMBER अहमदाबाद/Ahmedabad, !दनांक/Dated 12/07/2024 ट .सी.नायर, व. न.स./T.C. NAIR, Sr. PS ITA No.2398/Ahd/2014 The DCIT (Intl.Taxn.)-1 vs. Vodafone West Ltd. Asst. Year : 2013-14 16
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