TaxTMI 
TaxTMI 
TaxTMI 
2017 (7) TMI 1442
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.... of the Income Tax Act, 1961?" b) "Without prejudice, whether on the facts and in the circumstances of the case and in law, the Hon'ble DRP was correct in holding that Royalty received by the assessee is not taxable in India as it is not hit by the rigors of Explanation 2(v) to section 9(l)(vi) without appreciating that the same is duly covered by the substantive provisions of section 5(2) and that a substantive provision of section 5(2) would have precedence over a deeming provision section 9." c) "Whether, on the facts and in the circumstances of the case and in law, the Hon'ble DRP Mumbai was correct in coming to the conclusion that the Respondent does not have PE in India because the Indian company that has obtained the right is acting independently" d) "The Appellant prays that the order of the DRP be set aside on the above grounds and the draft order of the Assessing Officer be restored." 3. At the outset, learned AR placed on record series of the order of the Tribunal in assessee's own case, wherein grounds taken by the Revenue have been decided by the Tribunal in assessee's favour. The precise observation of the Tribunal in ITA No. 1405/Mum/2014 date....
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....ssment years 2006- 07 to 2008-09 has allowed the assessee‟s appeal, holding that its income is not taxable in India. Accordingly, the appeal of the revenue should be dismissed following earlier years‟ precedent, wherein, it has been held that the amount received by the assessee from the Indian company is not taxable either under the domestic law or under the DTAA. 3. The Ld. DR admitted that this issue has been decided by the Tribunal in favour of the assessee in earlier years. However, he strongly relied upon the order of the Assessing Officer. 4. After considering the rival submissions and on the perusal of the impugned order of the DRP, we find that the assessee‟s claim that the "royalty‟ received by it from the Indian entity, Warner Bros Picture India Pvt. Ltd was neither taxable in India under the Income-tax Act as the consideration for the sale, distribution or exhibition of cinematographic films have been categorically excluded from the purview of "royalty" under section 9(1)(vi) read with clause (v), nor under the terms of Article 12 of Indo-US DTAA. This claim of the assessee has been accepted by the Ld. CIT (A) in the AY 2006-07 and in the se....
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.... Dependent Agent Permanent Establishment (DAPE) in India in the form of WBPIPL. The question whether the Indian company, namely, WBPIPL is the PE of the assessee company or not came up for consideration directly in AY 2006-07 in ITA No. 60/Mum/2010. After considering the detailed arguments of the learned CIT (DR) the Hon‟ble "L" Bench held that WBPIPL is not the PE of the assessee company in India. The findings of the Hon‟ble Bench are quoted hereunder: "10). The issue can be examined in another dimension whether the amount is taxable under the Indian Income Tax Act in India if not as royalty, but as business income. The CIT (A) finding is that assessee has a business connection in India. However, he considered that there is no PE to the assessee, the fact of which was also accepted by the Assessing Officer as per PE proviso. It was the contention of the learned Departmental Representative that the assessee having business connection, the findings of which was given by the CIT(A), the amount cannot be executed without examining "PE proviso‟ provisions of DTAA. In this regard the learned Counsel‟s submission that under the Income Tax Act as well as under t....
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....hat the income of the assessee is not taxable in India and we direct the AO to delete the addition proposed on this account". Since, the aforesaid decision of the Ld. DRP is based on finding arrived at by the Tribunal in earlier years, therefore, consistent with the judicial precedence and view taken in earlier years which is applicable on the facts of the present year also, therefore, without taking any deviation we affirm the order of the Ld. DRP. Accordingly, ground raised by the revenue is dismissed. 5.In the result, appeal of the revenue stands dismissed. 4. Learned DR fairly conceded that Tribunal has consistently decided the issue in favour of the assessee. 5. Respectfully following the order of the Tribunal in assessee's own case, we do not find any merit in the order passed by DRP / AO. 6. In the result appeal of the Revenue is dismissed. 7. With regard to the similar Cross Objection raised by the assessee in the A.Y.2011-12, the finding of Tribunal in its order dated 05/03/2014 was as under:- "It has been admitted by both the parties that, if revenue‟s appeal is being dismissed, then grounds raised in the Cross Objection will become purely academic. Sin....
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.... for distribution (if' theatrical movies in India is not taxable in India as it is not hit by rigors of Explanation 2(iv) to section 9(1)(vi) without appreciating that the same is covered by the provisions of section 9(1)(i) and that these two sections are independent and exclusive to each other and have independent applications? (c) Without prejudice whether on the facts and in the circumstances of the case and in law, the Income Tax Appellate Tribunal is correct in holding that Royalty received by the assessee is not taxable in India as it is not hit by the rigors of Explanation 2(v) to section 9(1)(vi) without appreciating that the same is duly covered by the substantive provisions of section 5(2) and that a substantive provision section [5(2)] would have precedence over a deeming provision (section 9). 6,2 Also, for the Assessment Year 2007-08, the following substantial questions of law has been adrnitted by the Hon'ble Bombay High Court:- "(i) Whether on the facts and in the circumstances of the case and in law, the income Tax Appellate Tribunal is correct in holding that royalty received by the Respondent from Warner Bros Pictures India Ltd. in pursuance of a....