2019 (2) TMI 1644

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.... on facts and circumstances of the case and in law, the Tribunal erred in relying upon the decision of Hon'ble Delhi High Court in case of payee i.e. New Skies Satellites NV, Netherlands to hold that the amount was not taxable under the treaty in hands of payee without appreciating that the provisions of section 9(1)(vi) are pari-materia with the Royalty itxa-1395-2016.odt provisions under the DTAA as also held by Madras High Court in case of Poompuhar Shipping 360 ITR 257 and Verizon Communication Singapore Pte ITR 575 (Mad.)? (c) Whether on facts and circumstances of the case and in law, the Tribunal erred in relying upon the decision of Hon'ble Delhi High Court in case of payee i.e. New Skies Satellites NV, Netherlands to hold....

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.... " The circumstances in this case could very well go to show that the amendment was no more than an exercise in undoing an interpretation of the court which removed income from data transmission services from taxability under Section 9(1)(vi). It would also be difficult, if not impossible to argue, that inclusion of a certain specific category of services or payments within the ambit of a definition alludes not to an attempt to illuminate or clarify a perceived ambiguity or obscurity as to interpretation of the definition itself, but towards enlarging its scope. Predicated upon this, the retrospectivity of the amendment could well be a contentious issue. Be that as it may, this Court is disinclined to conclusively determine or record a find....