AI Drafter 
TaxTMI 
TaxTMI 
2024 (2) TMI 453
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....llowing grounds of appeal:- "1. That on the facts and in the circumstances of the case and in law, the Ld. Dispute Resolution Panel ('the Panel') erred in not directing the Learned Assessing Officer ('Ld. AO') to pass appropriate orders holding that the Appellant is not liable to be assessed to tax in India. 1.1. That on the facts and circumstances of the case and in law, the Panel and the Ld. AO erred in not following the orders passed by the Hon'ble High Court of Delhi for the Assessment years 2000-01 to 2014-15 and AY 2016-17 to AY 2017-18 and the Hon'ble Income Tax Appellate Tribunal for AY 2016-17 to AY 2018-19 in the Appellant's own case since there was no change in facts recorded for the ....
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....07 and AY 2008-09. 2.2. Without prejudice to ground 2 above, the Ld. AO and the Panel erred in not taking cognizance of the fact that 'use of a secret process' is a sine qua non for the payments to qualify as 'Royalty' under the India-Netherlands DTAA. 3. That the Ld. AO erred in holding that the payments received by the Appellant as consideration for data transmission services would also qualify as "fee for technical- services" as defined under section 9(1)(vii) of the Act as well as within the meaning of Article 12(5) of the India-Netherlands DTAA. 4. That the Ld. AO erred in not granting credit of taxes deducted at source amounting INR 31,76,57,049/- out of the total credit of INR 32,90,78,451/-....
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....f the earlier year and confirmed the adjustment. Thereafter, the AO vide impugned order in pursuance of the direction of DRP held that revenue earned by the assessee from the provisions of transmission services of voice, data and programmes of space segment capacity on Satellites to customers was in the nature of "Royalty" u/s 9(1)(vi) of the Income Tax Act, 1961 ("the Act") and Article 12(4) of the India-Netherland Double Taxation Avoidance Agreement ("DTAA"). Alternatively, he held that the revenue earned by the assessee is "Fee for Technical Services" u/s 9(1)(vii) of the Act r.w. Article 12(5) of the India- Netherlands DTAA. Thus, the AO assessed income of the assessee at INR 312,82,92,163/-. 4. Aggrieved against this, the assessee p....
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....nts enter agreements with the assessee directly or indirectly to avail of the services. The services are beamed in specific footprints of the satellite catchment area. The services availed by Indian Channels and payments made by such channels have been assessed by the AO as 'Royalty' in view of the amended definition of Royalty per section 9(1)(vi) read with explanations (expln 2 in particular). The assessee has challenged this contention by referring to the definition of Royalty in the relevant DTAA. The assessee has also submitted the judgment by Hon'ble Delhi High Court in its own case on similar issues where relief has been granted to the assessee basis the definition of Royalty in the DTAA. 3.2 The matter is in litigat....
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....e for the benefit under the relevant Double Tax Avoidance Agreements." 7.2. And the Jurisdictional Delhi High Court answered the questions in favour of the assessee by observing as under:- 59. "On a final note, India's change in position to the OECD Commentary cannot be a fact that influences the interpretation of the words defining royalty as they stand today. The only manner in which such change in position can be relevant is if such change is incorporated into the agreement itself and not otherwise. A change in executive position cannot bring about a unilateral legislative amendment into a treaty concluded between two sovereign states. It is fallacious to assume that any change made to domestic law to rectify a situation ....
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.... Revenue cannot be accepted. The question of law framed is accordingly answered against the Revenue. The appeals fail and are dismissed, without any order as to costs." 8. The facts and circumstances are identical in this year as well. The Revenue has not pointed any change into facts and circumstances of the present case. We therefore, respectfully following binding precedent (supra), hereby direct the AO to delete the impugned addition. 9. Ground No.4 raised by the assessee is against action of the AO for not granting credit of taxes which was deducted at source amounting to INR 31,76,57,049/- out of the total credit of INR 32,90,78,451/-. 10. Ld. Counsel for the assessee submitted that appropriate direction may be given to the a....