2025 (2) TMI 150 - AT - Income Tax

ITAT sets aside order on TDS deduction for software license fees to non-resident associated enterprise

The ITAT Pune set aside the CIT(A)'s order regarding TDS deduction on license fees paid to an associated enterprise under the India-USA Tax Treaty. The ... CIT(A)'s Exercising the jurisdiction u/s 250 - validity of Order passed u/s 250 by the NFAC/CIT(A) - TDS u/s 195 - license fees payable to its AE - deductibility of TDS - addition u/s 40(a)(i) - whether software is a 'copyrighted article' and therefore, the purchase of software license does not all within the definition of 'Royalty' as per the India-USA Tax Treaty? - CIT(A) overturned the disallowance. HELD THAT:- We find no whisper in the impugned order about (a) as to whether impugned expense/payment i.e. License Fee shared by the assessee is taxable in India in the hands of non-resident AE in view of provisions of article 12 of double taxation avoidance agreement entered between India and USA r.w. u/s 9 of the Act? and (b) as to whether impugned expense/payment i.e. License Fee shared by the assessee to its non-resident AE can be subjected to the provisions of section 195 of the Act. In view of this uncontroverted facts, the impugned adjudication in our considered view is prejudiced by assessee’s submission that in the subsequent year of payment of license fees to AE due taxes were deducted u/s 195 of the Act and deposited with the ex-chequer. The ground number 2 adjudicated also badly lacks the compliance in terms of section 250(6) of the Act. It is a trite law as laid down in case ‘Chandra Kishore Jha Vs Mahavir Prasad’ [1999 (9) TMI 948 - SUPREME COURT] that ‘if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner’. In view hereof, we hold that, the impugned adjudication by the first appellate authority sidestepping the dictate is not in consonance with the provision of sub-section (6) of section 250 of the Act. We deem it fit to set-aside the impugned order. Appeal of the Revenue and cross objection of the assessee are allowed for statistical purposes. The judgment from the ITAT Pune involves an appeal by the Revenue and a cross-objection by the assessee concerning the assessment year 2017-18. The primary issues revolve around the applicability of withholding tax under section 195 of the Income Tax Act, 1961, on license fees paid by the assessee to its associated enterprise (AE) and the subsequent disallowance under section 40(a)(i) of the Act. The Tribunal evaluates the correctness of the CIT(A)'s decision to overturn the disallowance made by the Assessing Officer (AO).Issues Presented and Considered1. Whether the CIT(A) erred in deleting the disallowance made by the AO under section 40(a)(i) of the Act without considering the provisions of Explanation 1 to subsection 1 of section 195 of the Income Tax Act, 1961.2. Whether the CIT(A) erred in allowing the appeal of the assessee without considering the Supreme Court's judgment in the case of Standard Triumph Motor Co. Ltd. v. Commissioner of Income-tax.3. Whether the license fee paid by the assessee to its non-resident AE is taxable in India under the India-USA Tax Treaty and section 9 of the Act.4. Whether the license fee payment is subject to the provisions of section 195 of the Act.Issue-wise Detailed Analysis1. Applicability of Section 195 and Disallowance under Section 40(a)(i):The Revenue contended that the CIT(A) erred by not considering the requirement to deduct tax at source under section 195 on the license fees paid to the non-resident AE, leading to disallowance under section 40(a)(i). The legal framework involves section 195, which mandates tax deduction on payments to non-residents, and section 40(a)(i), which disallows expenses if tax is not deducted. The CIT(A) had overturned the disallowance, but the Tribunal found that the CIT(A) failed to provide independent findings or substantiate its decision.2. Consideration of Supreme Court Judgment:The Revenue argued that the CIT(A) did not consider the precedent set by the Supreme Court in Standard Triumph Motor Co. Ltd. v. Commissioner of Income-tax, which could have implications on the taxability of the license fees. The Tribunal noted that the CIT(A) did not address this judgment or its applicability to the case at hand, leading to a lack of comprehensive adjudication.3. Taxability under India-USA Tax Treaty and Section 9:The assessee argued that the license fees should not be considered 'royalty' under the India-USA Tax Treaty and thus not taxable in India. The Tribunal observed that the CIT(A) did not adequately address whether the license fee falls under the definition of 'royalty' and its taxability under the treaty and section 9 of the Act. The Tribunal emphasized the need for a detailed examination of these aspects.4. Compliance with Section 250(6):The Tribunal highlighted that under section 250(6), the CIT(A) is required to provide clear reasons for its decisions. The Tribunal found that the CIT(A) failed to identify the issues, conduct necessary inquiries, and provide independent findings, thus not complying with the statutory requirements.Significant HoldingsThe Tribunal concluded that the CIT(A) did not adhere to the statutory mandate under section 250(6) and failed to provide a reasoned order. The Tribunal set aside the CIT(A)'s order and remanded the matter back to the first appellate authority for a fresh adjudication of all grounds raised, ensuring compliance with section 250(6) and without requiring the assessee to resubmit evidence.The Tribunal's decision underscores the importance of a detailed and reasoned adjudication process, especially when dealing with complex issues involving international tax treaties and statutory provisions. The remand aims to ensure that all relevant issues are thoroughly examined and decided upon, providing clarity and compliance with legal requirements.