TaxTMI 
TaxTMI 
2024 (6) TMI 1475
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....The assessee has raised following 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 ....
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....R 114 (Delhi) for AY 2006-07 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 initiating penalty proceedings under section 270A of the Act. The Appellant submits tha....
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....erland 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 273,31,46,361/- vide order dated 28.8.2023 passed u/s. 143(3) r.w.s. 144C(13) of the Act. 4. Aggrieved against this, the assessee preferred appeal before this Tribunal. 5. At the time of hearing, Ld. AR submitted that that Grounds No. 1, 2 & 3 are squarely covered by the judgement of Hon'ble Delhi High Court rendered in the case of Director of Income Tax vs New Skies Satellite BV & Others in ITA No. 473/2012 & Others order dated 08.02.2016 and also covere....
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....see 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 litigation since last many years starting ....
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....e Hon'ble Supreme Court, the panel, in order to keep the issue alive and for the reasons recorded by the AO in Paras 3 to 9.6 of the DAO upholds the variations proposed by the AO in the DAO. Grounds No. 1 to 3 are accordingly disposed of." 7.1. We find that in earlier years, Hon'ble Delhi High Court in the case of assessee had framed the substantial questions vide order dated 8.2.2016, in ITA 473-474/2012 for AY 2006-07 and AY 2008-09 as under:- (1) "whether the receipts of the asses sees earned from providing data transmission services, fall within the term royalty under the Income Tax Act, 1961, and (2) if the answer to the first is in the affirmative, whether the assessees would be eligible for the benefit under....
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....ntouring explanations), will continue to hold the field for the purpose of assessment years preceding the Finance Act, 2012 and in all cases which involve a Double Tax Avoidance Agreement, unless the said DTAAs are amended jointly by both parties to incorporate income from data transmission services as partaking of the nature of royalty, or amend the definition in a manner so that such income automatically becomes royalty. It is reiterated that the Court has not returned a finding on whether the amendment is in fact retrospective and applicable to cases preceding the Finance Act of 2012 where there exists no Double Tax Avoidance Agreement. 61. For the above reasons, it is held that the interpretation advanced by the Revenue cannot ....