TaxTMI 
TaxTMI 
2019 (12) TMI 206
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....ing 6 appeals are filed by the revenue. These six appeals include one duplicate appeal because for A. Ys. 2013 - 14 & 2014 - 15, the revenue earlier filed one appeal only i.e. ITA No. 1367/Bang/2015 but later filed two separate appeals in ITA No. 1176 & 1177/Bang/2017 and all three are heard together. These three appeals have arisen out of a combined rectification order dated 12.05.2015 passed by the AO for these two years. Remaining three appeals of the revenue are for A. Ys. 2013 - 14 to 2015 - 16. 2. All these appeals were heard together along with three Stay Petitions and all these are disposed of by this common order for convenience. 3. Relevant brief facts are that in the three appeals of the assessee for A. Ys. 2013 - 14 to 2015 - 16, the issue in dispute is about the liability of the assessee to deduct TDS from IUC/bandwidth Charges paid to foreign carriers. The department has held that these payments are taxable in the hands of the recipients both as Royalty as well as FTS and therefore, the assessee was liable to deduct TDS and since, the assessee has not done so, demand is raised u/s 201 (1) and 201 (1A). 4. In A.Ys. 2008 - 09 to 2012 - 13, the stand of the d....
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....ovisions. 3. Ground No. 3 - Non characterization of IUC and bandwidth payments as royalty 3.1 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding that IUC and bandwidth payments made by the Appellant to the foreign carriers qualify as 'royalty' as defined in Explanation 2 to section 9( 1 ) (vi) of the Act. 3.1.1 The learned CIT(A) has erred in holding that provision of interconnect services and bandwidth by the foreign carriers results in 'use of or 'transfer of right to use' the process belonging to the foreign carriers by the Appellant and hence, IUC and bandwidth payments qualify as a royalty under clause (i) and (iii) of Explanation 2 to section 9(1 )(vi) of the Act. 3.1.2 The learned CIT(A) has erred in holding that provision of interconnect services and bandwidth by the foreign carriers result in 'use of equipment belonging to the foreign carriers by the Appellant and hence, IUC and bandwidth payments qualify as royalty under clause (iva) of Explanation 2 to section 9( 1 )(vi) of the Act. 3.1.3 The learned CIT(A) has erred in upholding the order of the learned Tax O....
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.... and circumstances of the case and in law, the learned CIT(A) has erred in relying upon the Madras High Court decisions in the case of Verizon Singapore Pte Ltd. 39 taxmann.com 70 and Poompuhar Shipping Corporation Ltd. 38 taxmann.com 150. 4. Ground No. 4 - Non characterization of IUC and bandwidth payments as Fee for Technical Services (`FTS')/ Fee for Included Services (`FIS') 4.1 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that IUC and bandwidth payments qualify as FTS as defined under section 9(1)(vii) of the Act. 4.2 Without prejudice to ground 4.1 above, on the facts and circumstances of the case and in law, the learned CIT(A)/ Tax Officer has erred in not holding that IUC and bandwidth payments are made in relation to the business carried on the by the Appellant outside India and hence, even if construed as FTS under the Act, such payments cannot be taxed in India by virtue of section 9(1)(vii)(b) of the Act. 4.3 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Ta....
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....llant 5.1 Without prejudice to Grounds 1 to 4 above, on the facts and circumstances of the case and in law, the learned Tax Officer has erred in raising tax demand under section 201 of the Act without taking cognizance of the fact that the payer cannot be held liable for payment of the tax demand in cases involving non-deduction of tax at source and only interest liability under section 201(1A) of the Act, if any, can be levied in such cases. 6. Ground No. 6 - Non-applicability of section 206AA of the Act 6.1 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that section 206AA overrides the provisions of the DTAAs and hence, should be applied even in case of payments made to foreign carriers, which are covered by the applicable DTAAs. The Appellant craves leave to add, alter, amend or withdraw any of the above grounds at or before the hearing of the appeal." IT(IT)A No. 1161/Bang/2015:- (By Assessee -Assessment Year: 2014-15) "The Appellant respectfully submits that: On the facts and circumstances of the case and in law, the learned Co....
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....cer treating the IUC and bandwidth payments as royalty under the amended provisions of section 9(1 Xvi) of the Act, despite the fact that the amendments are unconstitutional and hence, cannot be relied upon in determining the characterization of these payments. 3.2 Without prejudice to ground 3.1 above, on the facts and circumstances of the case and in law, the learned CIT(A)/ Tax Officer has erred in not appreciating that IUC and bandwidth payments are made in relation to the business carried on the by the Appellant outside India and hence, even if construed as royalty under the Act, such payments cannot be taxed in India by virtue of section 9( 1 )(vi)(b) of the Act. 3.3 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that IUC and bandwidth payments made by Appellant qualify as 'royalty' as defined under the applicable Double Taxation Avoidance Agreements (`DTAA') entered into between India and the country of residence of the foreign carriers. 3.3.1 The learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that services ....
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....ding that IUC and bandwidth payments qualify as FTS/ FIS as defined under the respective DTAAs. 4.4 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in not taking cognizance of the fact that provision of interconnect and bandwidth services does not involve 'human intervention' and hence, IUC and bandwidth payments do not qualify as FTS/ FIS for the purposes of the Act or the applicable DTAAs. 4.5 On the facts and circumstances of the case and in law, the learned CIT(A)/ Tax Officer has erred in not holding that provision of interconnect services and bandwidth is a standard facility and hence, IUC and bandwidth payments cannot be construed as FTS/ FIS either under the Act or under the applicable DTAAs. 4.6 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that provision of interconnect services and bandwidth 'make available' technical knowledge, skill, know-how, process etc. to the Appellant and hence, IUC and bandwidth payments qualify as FTS/ FIS under the DTAAs, which contain a 'make available' clause in ....
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....nt craves leave to add, alter, amend or withdraw any of the above grounds at or before the hearing of the appeal." IT(IT)A No. 2818/Bang/2017:- (By Assessee -Assessment Year: 2015-16) "The Appellant respectfully submits that: On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax Appeals 12, Bengaluru ['learned CIT(A)1 has erred in passing an order under section 250 of the Income Tax Act, 1961 (`Ace), partly confirming the order of the Deputy Commissioner of Income Tax, International Tax, Circle 1(1), Bengaluru (`learned Tax Officer'). Each of the ground is referred to separately, which may kindly be considered independent of each other. 1. Ground No. 1- The impugned order passed by learned CIT(A) and also the order passed by the learned Tax Officer is bad in law and hence, void-ab-initio 1.1 On the facts and circumstances of the case and in law, and in view of the judgment of Hon'ble Supreme Court in the case of CIT Vs Spice Infotainment (CA 285 of 2014), the impugned order and also the order passed by the learned Tax Officer is 'bad in law' and 'void-ab-initio' since....
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.... the facts and circumstances of the case and in law, the learned CIT(A) has erred in merely relying upon the order of this Hon'ble Tribunal in the case of Appellant dated December 30, 2014 for earlier years without appreciating the fact that post the said decision, there have been many favourable decisions on this very issue and the position has changed. 5.2 Without prejudice to ground No. 5.1 above, on the facts and circumstances of the case and in law, the learned CIT(A) has erred in not holding that interconnect charges and bandwidth payments made by the Appellant to the foreign carriers do not qualify as 'royalty' as defined in Explanation 2 to section 9(1)(vi) of the Act. 5.2.1 The learned CIT(A) has erred in holding that provision of interconnect services and bandwidth by the foreign carriers results in 'use of or 'transfer of right to use' the process belonging to the foreign carriers by the Appellant and hence, interconnect charges and bandwidth payments qualify as a royalty under clause (i) and (iii) of Explanation 2 to section 9(1)(vi) of the Act. 5.2.2 The learned CIT(A) has erred in holding that provision of interconnec....
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.... CIT(A) has erred in upholding the order of the learned Tax Officer holding that amendments made to section 9(1)(vi) of the Act, by way of insertion of' Explanation 5 and 6 vide Finance Act, 2012, should be applicable and be read into the DTAAs and hence, the interconnect and bandwidth payments made by the Appellant to the foreign carriers qualify as 'royalty' under the applicable DTAAs. 6. Ground No. 6 - Non characterization of interconnect and bandwidth payments as Fee for Technical Services (`FTS')/ Fee for Included Services (`FIS') 6.1 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that interconnect and bandwidth payments qualify as FTS as defined under section 9(1)(vii) of the Act. 6.2 Without prejudice to ground 6.1 above, on the facts and circumstances of the case and in law, the learned CIT(A)/ Tax Officer has erred in not holding that interconnect and bandwidth payments are made in relation to the business carried on the by the Appellant outside India and hence, even if construed as FTS under the Act, such payments cannot be taxed in....
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....tances of the case and in law, the learned CIT(A) has erred in not following the binding decision of the Jurisdictional High Court in the case of Vodafone South Limited (now known as VMSL) (241 Taxmann 497), wherein the Hon'ble High Court has held that roaming charges (similar to carrier charges) paid to domestic telecom operators cannot be termed as 'technical services'. 7. Ground No. 7 - Withholding tax liability under section 201 of the Act cannot be recovered from the Appellant 7.1 Without prejudice to Grounds 1 to 6 above, on the facts and circumstances of the case and in law, the learned Tax Officer has erred in raising tax demand under section 201 of the Act without taking cognizance of the fact that the payer cannot be held liable for payment of the tax demand in cases involving non-deduction of tax at source and only interest liability under section 201(1A) of the Act, if any, can be levied in such cases. The Appellant craves leave to add, alter, amend or withdraw any of the above grounds at or before the hearing of the appeal." IT(IT)A No. 1367/Bang/2015:- (By Revenue -Assessment Year: 2013-14) "1. The Ld. CIT(A)-I V has ....
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....learned Commissioner of Income Tax (Appeals) -12, Bengaluru erred in allowing relief quoting the case of Bosch Ltd Vs ITO which dealt with grossing up issue u/s 195 which are not related to section 206 AA of IT Act. 4. The learned Commissioner of Income Tax (Appeals) -12, Bengaluru erred in not appreciating the 'non-obstante' provisions contained in section 206 AA of IT Act, which would have overriding effect over all provisions of Act, including the treaty. 6. For these and such other grounds that may be urged at the time of hearing, it is prayed that the order of the CIT(A) may be annulled and that of the AO be restored." IT(IT)A No. 1312/Bang/2016:- (By Revenue -Assessment Year: 2013-14) "1. The Ld.CIT(A)-IV has upheld the view of the AO that IUC and capacity transfer payment made by VSL accrue or arise in India and ought to be taxed in the source country, as it is the source country which provides the opportunity to generate such income or profits. 2. The Ld. CIT(A) has opined that having held the payments taxable as royalty u/s 9(1)(vi) and FTS u/s.9(i)(vii), it is not open for him to adjudicate on the taxability of the same incom....
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.... in Jaw as well as on facts, in allowing the appeal of the assessee on the issue of applicability of section 206 AA of Income-tax Act, 1961, in respect of payments made to nonresident entities, in the facts and circumstances of the case. 6. For that, the Ld. CIT (Appeals) erred in law as well as on facts in holding that, there is no scope for deduction of tax at the rate of 20%, as provided under the provisions of Section 206AA, when the benefit of DTAA is available; despite the overriding effect of Section 206AA of the Income-tax Act, 1961 due to the presence of a non-obstante clause in the Section. 7. For that, the learned Commissioner of Income Tax erred in law as well as on facts, in allowing the appeal of the assessee, by wrongly/ incorrectly placing reliance on the decision of the Hon'ble ITAT, Bangalore, in the case of Bosch Ltd Vs ITO which dealt with grossing up issue u/ s 195 of the Income-tax Act, 1961 and not the issue relating to Section 206 AA of Income-tax Act. 8. For that, in the facts and circumstances of the case, the Ld. CIT (Appeals) erred in law as well as on facts in holding that, the tax payable by a UK tax resident on royalties....
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....e Act on IUC and capacity transfer payments made to foreign carriers. 3. Ground No. 3 - Non characterization of interconnect and capacity transfer payments as Fee for Technical Services (`FTS')/ Fee for Included Services (`RS') 3.1 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that IUC and capacity transfer payments qualify as FTS as defined under section 9(1)(vii) of the Act. 3.2 Without prejudice to ground 3.1 above, on the facts and circumstances of the case and in law, the learned C1T(A)/ learned Tax Officer has erred in not holding that IUC and capacity transfer payments are made in relation to the business carried on the by the Appellant outside India and hence, even if construed as FTS under the Act, such payments cannot be taxed in India by virtue of section 9(1)(vii)(b) of the Act. 3.3 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that IUC and capacity transfer payments qualify as FTS/ FIS as defined under the respective Double Taxation Avoi....
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....lify as FTS/ FIS. 4. Ground No. 4 - Withholding tax liability under section 201 of the Act cannot be recovered from the Appellant 4.1 Without prejudice to Grounds 1 to 3 above, on the facts and circumstances of the case and in law, the learned Tax Officer has erred in raising tax demand under section 201 of the Act without taking cognizance of the fact that the payer cannot be held liable for payment of the tax demand in cases involving non-deduction of tax at source and only interest liability under section 201(1A) of the Act, if any, can be levied in such cases. The Appellant craves leave to add, alter, amend or withdraw any of the above grounds at or before the hearing of the appeal." IT(IT)A No. 2470/Bang/2018:- (By Assessee-Assessment Year: 2009-10) "The Appellant respectfully submits that: On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax Appeals - 12, Bengaluru ['learned CIT(A)'] has erred in passing an order under section 254 read with section 250 of the Income Tax Act, 1961 (`Ace), confirming the order of the Deputy Director of Income Tax, International Tax. Circle 1(1), Ben....
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....nt outside India and hence, even if construed as FTS under the Act, such payments cannot be taxed in India by virtue of section 9(1)(vii)(b) of the Act. 3.3 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that IUC and capacity transfer payments qualify as FTS/ FIS as defined under the respective Double Taxation Avoidance Agreements (`DTAAs'). 3.4 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding that provision of interconnect services and transfer of capacity involve 'human intervention' and hence, IUC and capacity transfer payments qualify as FTS/ FIS for the purposes of the Act or the applicable DTAAs. 3.5 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that provision of interconnect services and transfer of capacity 'make available' technical knowledge, skill, know-how, process etc. to the Appellant and hence. IUC and capacity transfer payments qualify as FTS/ FIS under the DTAAs, which contain a 'ma....
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....: 2010-11) "The Appellant respectfully submits that: On the facts and circumstances of the case and in law, the learned Commissioner of Income Tax Appeals - 12, Bengaluru ['learned CIT(A)1 has erred in passing an order under section 254 read with section 250 of the Income Tax Act, 1961 (`Act'), confirming the order of the Deputy Director of Income Tax, International Tax, Circle 1(1), Bengaluru (` learned Tax Officer'). Each of the ground is referred to separately, which may kindly be considered independent of each other. 1. Ground No. 1- The impugned order passed by learned CIT(A) is bad in law and hence, void-ab-initio 1.1 On the facts and circumstances of the case and in law, and in view of the judgment of Hon'ble Supreme Court in the case of CIT Vs Spice Infotainment (CA 285 of 2014), the impugned order is 'bad in law' and ' void-ab-initio' since the same has been passed in the name of `Vodafone South Limited' which did not exist as on the date on which the impugned order was passed. 1.2 Without prejudice to ground No 1.1 above, the order passed by the learned CIT(A) is bad in law since the....
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....On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that provision of interconnect services and transfer of capacity 'make available' technical knowledge, skill, know-how, process etc. to the Appellant and hence, IUC and capacity transfer payments qualify as FTS/ FIS under the DTAAs, which contain a 'make available' clause in the definition of FTS/FIS. 3.6 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that provision of interconnect services and transfer of capacity consists of development and transfer of a technical plan or design by the foreign carriers to the Appellant and hence, IUC and capacity transfer payments qualify as FTS/ FIS under the respective DTAAs, which include payments made for the aforesaid activity within the ambit of FTS FIS. 3.7 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in relying on its orders passed for Financial Years 2012-13 and 2013-14, wherein it has been held that where the DTAAs do not have a cla....
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....ourt in the case of CIT Vs Spice Infotainment (CA 285 of 2014), the impugned order is 'bad in law' and 'void-ab-initio' since the same has been passed in the name of `Vodafone South Limited' which did not exist as on the date on which the impugned order was passed. 1.2 Without prejudice to ground No 1.1 above, the order passed by the learned CIT(A) is bad in law since the learned CIT(A) has held that payments towards Interconnect Usage Charges (IUC) qualify as Fee for Technical Services (`FTS')/ Fee for Included Services (`RS') despite the favourable ruling of the Hon'ble Delhi Bench of the Tribunal in the case of Bharti Airtel Limited (178 TTJ 708 - dated March 17, 2016), wherein it has been specifically held that IUC paid to foreign carriers do not qualify as FTS/ FIS, which has not been challenged by the Revenue Department and thus, has been accepted. 2. Ground No. 2 - Payments not liable to tax deduction at source 2.1. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding the Appellant to be an `assessee-in-default' under section 201 of the Act for non-deduction of tax at sou....
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....e, IUC and capacity transfer payments qualify as FTS/ FIS under the respective DTAAs, which include payments made for the aforesaid activity within the ambit of FTS/ FIS. 3.7 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in relying on its orders passed for Financial Years 2012-13 and 2013-14, wherein it has been held that where the DTAAs do not have a clause governing taxability of FTS/ FIS, provisions of the Act apply, without appreciating the fact that in such cases, the relevant Article of the DTAA dealing with taxation of Business Profits is applicable. 3.8 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in not following the binding decision of the Jurisdictional High Court in the case of Vodafone South Limited (now known as Vodafone Mobile Services Limited) (241 Taxmann 497), wherein the Hon'ble High Court has held that roaming charges (similar to carrier charges) paid to domestic telecom operators cannot be termed as 'technical services' and decision of the Hon'ble Delhi Tribunal in the case of Bharti Airtel Limited, wherein it has been held that IUC payments made to fo....
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....ot qualify as FTS/ FIS, which has not been challenged by the Revenue Department and thus, has been accepted. 2. Ground No. 2 - Payments not liable to tax deduction at source 2.1. On the facts and circumstances of the case and in law, the learned CIT(A) has erred in holding the Appellant to be an 'assessee-in-default' under section 201 of the Act for non-deduction of tax at source under section 195 of the Act on IUC and capacity transfer payments made to foreign carriers. 3. Ground No. 3 - Non characterization of interconnect and capacity transfer payments as Fee for Technical Services (`FTS')/ Fee for Included Services (`FIS') 3.1 On the facts and circumstances of the case and in law, the learned CIT(A) has erred in upholding the order of the learned Tax Officer holding that IUC and capacity transfer payments qualify as FTS as defined under section 9(1)(vii) of the Act. 3.2 Without prejudice to ground 3.1 above, on the facts and circumstances of the case and in law, the learned CIT(A)/ learned Tax Officer has erred in not holding that IUC and capacity transfer payments are made in relation to the business carried on the b....
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....dafone South Limited (now known as Vodafone Mobile Services Limited) (241 Taxmann 497), wherein the Hon'ble High Court has held that roaming charges (similar to carrier charges) paid to domestic telecom operators cannot be termed as 'technical services' and decision of the Hon'ble Delhi Tribunal in the case of Bharti Airtel Limited, wherein it has been held that IUC payments made to foreign carriers do not qualify as FTS/ FIS. 4. Ground No. 4 - Withholding tax liability under section 201 of the Act cannot be recovered from the Appellant 4.1 Without prejudice to Grounds 1 to 3 above, on the facts and circumstances of the case and in law, the learned Tax Officer has erred in raising tax demand under section 201 of the Act without taking cognizance of the fact that the payer cannot be held liable for payment of the tax demand in cases involving non-deduction of tax at source and only interest liability under section 201(1A) of the Act, if any, can be levied in such cases. The Appellant craves leave to add, alter, amend or withdraw any of the above grounds at or before the hearing of the appeal." 7. In course of hearing, it was submitted by....
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.... assessee on one aspect i.e. Royalty aspect, that tribunal order should be followed in preference to a tribunal order of Delhi Bench in the case of Bharti Airtel Ltd. (Supra). Regarding this contention of the learned AR of the assessee that DRP in assessment proceedings in assessee's own case in A. Y. 2012 - 13 to 2015 - 16 has decided this issue in favour of the assessee by following the tribunal order of Delhi Bench rendered in the case of Bharti Airtel Ltd. 9Supra), he submitted that the tribunal order in assessee's own case for A. Ys. 2008 - 09 to 2012 - 13 was not brought to the notice of DRP and in these years, Revenue cannot file before the tribunal against the order of DRP and hence, as per these DRP orders, it cannot be said that the earlier tribunal order in assessee's own case which is challenged by the assessee before Hon'ble Karnataka High Court is not a good law and is not to be followed. He made several other arguments on this aspect but we will take note of these arguments if we come to the conclusion that the order of tribunal rendered in the case of Bharti Airtel Ltd. (Supra) has to be followed on both aspects i.e. Royalty and FTS aspects in spite of this that ....
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.... hold that the consideration paid by the assessee as IUC/Bandwidth charges for alleged inter connect service falls within the ambit of process Royalty and element of income was involved and therefore, the assessee was bound to deduct the TDS on such payment. 10. On the second aspect as to whether the consideration paid by the assessee as IUC/Bandwidth charges for alleged inter connect service falls within the ambit of FTS and element of income was involved or not, we find force in the submissions of the learned AR of the assessee that this issue is squarely covered in favour of the assessee by the tribunal order of Delhi Bench rendered in the case of Bharti Airtel Ltd. Vs. ITO (Supra) because on this aspect, no adverse order could be pointed out by the learned DR of the revenue. Respectfully following this tribunal order of Delhi Bench rendered in the case of Bharti Airtel Ltd. Vs. ITO (Supra), this aspect is decided in favour of the assessee in these three years i.e. A. Ys. 2013 - 14 to 2015 - 16. 11. In remaining five appeals of the assessee for A. Ys. 2008 - 09 to 2012 - 13, the first aspect i.e. Royalty aspect is already decided by the tribunal against the assessee and in....