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of <h1>Taxability question covered by prior EY Global Services precedent; cases remanded to assessing officer under settled precedent</h1> <h3>THE COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION) -1, NEW DELHI Versus EY GLOBAL SERVICES LTD</h3> HC held the taxability question was not res integra and affirmed that ITAT correctly remanded the matters to the AO to decide in accordance with this ... Income taxable in India - Taxability of Software License - ascertaining the taxability in India of the payments received from EYGBS and EYME and for withholding taxes - Review petition - ITAT [2022 (6) TMI 125 - ITAT DELHI] has erred in not appreciating the fact that the issue raised in Engineering Analysis [2021 (3) TMI 138 - SUPREME COURT] was whether income from sale/transfer of software is royalty, whereas the issue involved in the present case is whether the income for use/right to use of an online interactive platform is royalty, therefore, the facts of present case are distinguishable with the facts involved in Engineering Analysis (supra). HELD THAT:- The issue involved in the present cases is no longer res integra, since this Court has already set aside the AAR order dated 10th August, 2016 by holding in favour of the assessee. Consequently, the ITAT rightly remanded the cases to the Assessing Officer to pass the orders following the judgement of this Court in EY Global Services Limited [2021 (12) TMI 571 - DELHI HIGH COURT] Though the review petition in Engineering Analysis (supra) is pending before the Supreme Court, yet there is no stay of the said judgment till date. Hence, in view of the judgments passed by the Supreme Court in Kunhayammed and Others vs. State of Kerala and Another,[2000 (7) TMI 67 - SUPREME COURT (LB)] and Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras [1992 (4) TMI 183 - SUPREME COURT] the present appeals are covered by the judgment passed by this Court in EY Global Services Limited (supra). Accordingly, no substantial question of law arises for consideration in the present appeals Present income tax appeals challenge ITAT order dated 01 June 2019 which set aside CIT(A) orders passed pursuant to AAR order dated 10 August 2016 for AYs 2014-15 and 2015-16. Appellant argued Engineering Analysis Centre of Excellence (SC) concerned whether income from sale/transfer of software is 'royalty', whereas the present issue is whether income for 'use/right to use of an online interactive platform' constitutes 'royalty', and that the Delhi decision in EY Global Services Ltd (Del) will be contested by Revenue. Court observed the issue is not res integra because this Court had earlier set aside the AAR order in EY Global Services Ltd and, therefore, ITAT correctly remanded the matters to the Assessing Officer to pass orders 'following the judgment of this Court in EY Global Services Limited'. Noting the review petition in Engineering Analysis is pending but uns stayed, reliance placed on precedents (Kunhayammed; Shree Chamundi Mopeds) to apply the Delhi judgment. No substantial question of law arises; appeals dismissed, subject to the final decision of the Supreme Court in the review petition.
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