2021 (6) TMI 845 - AT - Income Tax

Tribunal rules in favor of appellant on taxability of software/hardware sale. No tax deduction required.

M/s Autodesk Asia Pvt. Ltd. Versus The Dy. Commissioner of Income-Tax (ITA No. 294) & The Asst. Director of Income-tax (IT (TP) A No. 1758 (Intl. Taxation), Circle-1 (1), Bengaluru. And M/s Autodesk Asia Pvt. Ltd. Versus The Income-Tax Officer (Intl. Taxation), Ward-1 (1), Bengaluru.

M/s Autodesk Asia Pvt. Ltd. Versus The Dy. Commissioner of Income-Tax (ITA No. 294) & The Asst. Director of Income-tax (IT (TP) A No. 1758 (Intl. ... Issues:1. Taxability of consideration received for sale of software as royalty.2. Taxability of consideration received for sale of hardware as royalty.3. Applicability of Article 24 of the DTAA.4. Credit of tax deducted at source.5. Initiation of penalty.Issue 1: Taxability of consideration received for sale of software as royaltyThe appellant, a Singapore based company, filed appeals against orders passed by the ITO for assessment years 2010-11 to 2013-14. The appellant claimed that the consideration received for the sale of software and hardware to Indian distributors/customers was made outside India. The ITO treated the consideration as royalty under section 9(1)(vi) of the Act and India-Singapore DTAA. The DRP upheld the decision. However, the Tribunal, following the decision of the Supreme Court in the case of Engineering Analysis Centre of Excellence Pvt. Ltd. vs CIT, concluded that the purchase of software did not give rise to taxable income in India. Therefore, the provisions of section 195 of the Act were not attracted, and the appellant was not obligated to deduct tax at source. Consequently, the appeal was allowed on this ground.Issue 2: Taxability of consideration received for sale of hardware as royaltyThe ITO proposed to tax the consideration received for the sale of hardware as royalty based on the inseparability of hardware and software. However, the Tribunal's decision on the taxability of software as royalty also applied mutatis mutandis to the sale of hardware. As a result, the Tribunal held that the consideration received for the sale of hardware did not give rise to any taxable income in India, and the appellant was not required to deduct tax at source. Therefore, the appeal on this ground was allowed.Issue 3: Applicability of Article 24 of the DTAAThe appellant contested the applicability of Article 24 of the DTAA. The Tribunal did not find the provisions of Article 24 applicable to the appellant's case, especially considering the findings on the taxability of software and hardware sales. Therefore, the appeal on this issue was not upheld.Issue 4: Credit of tax deducted at sourceThe appellant claimed a credit of tax deducted at source, which the ITO did not grant fully. However, since the Tribunal found that the appellant was not liable to deduct tax at source on the consideration received for software and hardware sales, the issue of credit of tax deducted at source became irrelevant. Therefore, the appeal on this ground was not considered.Issue 5: Initiation of penaltyThe ITO initiated penalty proceedings under section 271(1)(c) of the Act. However, since the Tribunal allowed the appeals on the primary issues of taxability of software and hardware sales, the question of penalty did not arise. Therefore, the appeal against the initiation of penalty proceedings was not addressed.In conclusion, the Tribunal allowed all the appeals filed by the appellant concerning the taxability of consideration received for the sale of software and hardware, based on the decision of the Supreme Court and the non-applicability of tax deduction at source provisions. The other issues raised in the appeals became academic in light of the primary findings.