2019 (5) TMI 1209 - HC - Income Tax

Payments to US Company: Tax Liability Upheld as Royalty under DTAA

The High Court upheld the Tribunal's decision that payments made by the Assessee to a US Company constituted 'Royalty' under the DTAA and Income Tax Act. ... Assessee-in-default u/s 201(1) - TDS u/s 195 - interest u/s 201(1A) - payment of 'Royalty' for use of Copyrights, Software and Logo of US Company and was covered by Article 12 of DTAA between India and USA - HELD THAT:- What was paid by the assessee as an annual fee is for the use of software which gives a right to use, copy develop and market the same by using the trademark and logo of Mls.Bluestone Software Inc. Therefore, the payment made by the assessee as annual fee would be for the purpose of using the software for copying and developing and also for using the trademark or logo for marketing the product in Indian market. Therefore, in our opinion, the payment of annual fee by the assessee to Mls.Bluestone Software - Inc. squarely falls within the definition 'royalty' as provided in Article 12(3) of the Doubt Taxation Avoidance Agreement We agree with the view taken by the Karnataka High Court in [2013 (2) TMI 448 - KARNATAKA HIGH COURT] on the issue that the payments made by the Assessee Company to the US Company for user of its Software, Logo and Trade Marks were in the nature of Royalty covered under Article 12 of the Double Tax Avoidance Agreement (DTAA) between India and USA and therefore, the Assessee, Indian Company was liable to deduct tax at source and pay the same to the State. On account of its failure to do so, it was also liable to pay interest thereon u/s 201(IA) - appeal dismissed Issues Involved:1. Validity of interest levied under Section 201(IA) of the Income Tax Act.2. Requirement to deduct tax at source on payments considered as Royalty under the Income Tax Act and the Double Tax Avoidance Agreement (DTAA) between India and USA.Issue-wise Detailed Analysis:1. Validity of Interest Levied under Section 201(IA):The Tribunal upheld the interest levied by the Assessing Officer under Section 201(IA) of the Income Tax Act. The Assessee contended that interest should be computed from the date tax was deductible to the date it was paid. However, since the tax was neither deducted nor paid, the Tribunal found it impracticable to calculate interest based on these provisions. The Tribunal emphasized that non-compliance with the Income Tax Act should not place the Assessee in a better position than those who complied by deducting and paying the tax. Consequently, the Tribunal dismissed the Assessee's argument, affirming the interest levy for non-deduction and non-payment of tax.2. Requirement to Deduct Tax at Source on Payments Considered as Royalty:The Tribunal concluded that the payment made by the Assessee to the US Company was for the use of software, trademarks, and logos, thus constituting 'Royalty' under Article 12 of the DTAA between India and USA. The Tribunal referred to clauses in the License Agreement that granted the Assessee the right to use, copy, develop, and market the software with the foreign company's trademark and logo, which fell within the definition of 'Royalty' under Article 12(3) of the DTAA. The Tribunal dismissed the Assessee's contention that the payment did not have the characteristics of royalty and was not liable for tax deduction at source.The Tribunal also considered the broader definition of 'Royalty' under Section 9(1)(vi) of the Income Tax Act, which encompasses payments for any right to use property or information for business purposes. The Tribunal found that the payment fell within this definition as well, reinforcing the requirement for tax deduction.The Tribunal distinguished the case from the Bangalore Bench decision in Samsung Electronics Co. Ltd., where the payment was for a mere copy of software without rights to copy, develop, or market it. In contrast, the Assessee had specific rights to use and develop the software, making the payment a royalty.The Tribunal also referred to the Karnataka High Court's decision in CIT v. Synopsis International Old Ltd., which held that payments for the use of confidential information embedded in software constituted royalty, attracting tax liability. The Tribunal agreed with this view, concluding that the Assessee was liable to deduct tax at source under Section 195 of the Income Tax Act.Judgment:The High Court agreed with the Tribunal's findings and the Karnataka High Court's decision, affirming that the payments made by the Assessee to the US Company were in the nature of Royalty under Article 12 of the DTAA and Section 9(1)(vi) of the Income Tax Act. Consequently, the Assessee was liable to deduct tax at source and pay interest for non-compliance under Section 201(IA). The Court dismissed the Assessee's appeals, answering the questions framed against the Assessee and in favor of the Revenue, with no order as to costs.