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of <h1>Software usage payments to foreign company don't qualify as royalty under tax treaty, no TDS required</h1> <h3>ACIT, Circle-6 (1) (1), Mumbai Versus CMA CGM Agencies India Private Limited</h3> ACIT, Circle-6 (1) (1), Mumbai Versus CMA CGM Agencies India Private Limited - TMI Issues:Appeal against deletion of addition of expenditure for IT service charges under section 40(a)(ia) of the IT Act, 1961.Detailed Analysis:1. The Revenue challenged the order of the LD. Commissioner of Income Tax (Appeals) directing the deletion of an addition of Rs. 9,06,53,035/- made by the Assessing Officer on account of expenditure for IT service charges under section 40(a)(ia) of the IT Act. The Assessing Officer disallowed the expenses as TDS was not deducted on the payments made by the assessee. The LD. Commissioner allowed the appeal of the assessee, relying on a previous order passed by the ITAT, Pune Benches, in the assessee's own case for a previous assessment year.2. The Revenue contended that the payment of Rs. 9,06,53,035/- should be treated as fees for technical services, subject to TDS. The assessee argued that the issue was already decided in their favor by the Co-ordinate Bench of the Tribunal in previous assessment years. The Tribunal noted that in previous cases, similar additions were made but were deleted by the Tribunal, as the payments did not fall under the definition of fees for technical services or royalty. The Tribunal referred to specific clauses of the DTAA with Portuguese and held that the payments made by the assessee did not attract taxation in India, thus no TDS was required.3. The Tribunal emphasized that the issue had been consistently decided in favor of the assessee by the Co-ordinate Bench in previous assessment years. The Tribunal found no change in the facts or circumstances of the present case warranting a different decision. Therefore, the Tribunal upheld the order of the LD. Commissioner deleting the disallowance of Rs. 9,06,53,035/- under section 40(a)(ia) of the IT Act. The appeal filed by the Revenue was dismissed, and the order was pronounced on November 5th, 2024.
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