TaxTMI 
TaxTMI 
2009 (10) TMI 906
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....se of copy righted articles and does not amount to 'Royalty' within the meaning of Article 12 (3) of DTAA. 2. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that the Assessing Officer has added the amount of Rs. 6,08,30,754/-twice. 3. On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in holding that interest u/s 234B is not payable by a non-resident whose entire income is subject to deduction of tax at source and in directing the Assessing Officer to delete the interest levied u/s. 234B of the Act." 2. The assessee, a non-resident company, is engaged in the business of developing designs etc., During the year under consideration, the assess....
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.... the A.O. has wrongly held that the payment to be royalty. Accordingly appeal on grounds of appeal Nos. 1 to 7 is allowed." 4. Aggrieved by the Order of the learned CIT (A), the Revenue is in appeal before us. 5. We have heard the learned Departmental Representative as well as the learned counsel appearing on behalf of the assessee and carefully perused the record. Admittedly, the issue stands squarely covered by the decision of the ITAT, Delhi, (Special Bench) in the case of Motorola Inc. v. Dy. CIT [2005] 95 ITD 269. Learned Departmental Representative made a feeble attempt to place reliance upon the decision of the Apex Court in the case of TATA Consultancy Services v. State of Andhra Pradesh [2004] 271 ITR 401 to submit that software ....
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....ards 'software license-fees' on which 2.65% was deducted towards tax. It is not the case of either assessee-company or RIL that despite being assisted by a battery of consultants TDS was made twice inadvertently on the same amount and the assessee-company has meekly accepted without any protest. However, the learned CIT (A) merely accepted the contention of the assessee without verifying as to whether there were two payments of identical amount or only one payment. Upon hearing learned Departmental Representative as well as the learned counsel appearing on behalf of the assesses, we are of the opinion that in the interests of substantial justice the matter deserves to be restored to the file of the Assessing Officer who is directed ....