Intelsat Corporation , New Delhi V. ACIT (International Taxation), Circle-2(1)(1), New Delhi

ITA 4412/DEL/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1632 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2016-2017
• Appeal Filed On: 13-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA ANAND
• Keywords: Double taxation relief; Question of law

Judgement Text

1 ITA No.4412/Del/2019 Intelsat Corporation Vs. ACIT IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH “D”: NEW DELHI ] BEFORE DR. B.R.R. KUMAR, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER ITA. No. 4412/Del/2019 (Assessment Year: 2016-17) Intelsat Corporation, C/o. Pricewater House Coopers Pvt. Ltd., Sucheta Bhawan, Gate No. 2, 1 st Floor, 11–A, Vishnu Digamber Marg, New Delhi – 110 002. PAN: AADCP6533D Vs. ACIT, International Taxation, Circle : 2 (1)(1) New Delhi. (Appellant) (Respondent) Assessee by : Shri Vishal Kalra, Adv.; & Shri S. S. Tomar, Advocate. Department by: Ms. Anupama Anand [CIT] – D.R.; Date of Hearing : 18/05/2022 Date of pronouncement : 20/05/2022 O R D E R PER YOGESH KUMAR U.S., J. M. 1. The aforesaid appeal has been filed by the assessee against the final assessment order dated 19/03/2019 passed by ACIT, Circle Int. Tax (2) (1)(1), Income Tax Department, Ministry of Finance for assessment year 2016-17. 2. Grounds of appeal raised by the assessee are as under:- 1. That on the facts and in the circumstances of the case and in law, the Learned Assessing Officer (“Ld. AO”) has erred in assessing the income of the appellant at INR 123,08,08,095/- for the subject year. 2 ITA No.4412/Del/2019 Intelsat Corporation Vs. ACIT 1.1 That on the facts and in the circumstances of the case and in law, the Hon’ble Dispute Resolution Panel (“Hon’ble Panel”) erred in not directing the Ld. AO to hold that the appellant is not liable to tax in India. 2. That on the facts and in the circumstances of the case and in law, the Hon’ble Panel erred in not directing the Ld. AO to follow the orders issued by the Hon’ble High Court of Delhi in the appellant's own case for AY 2006-07 to AY 2008-09, wherein the Hon’ble Delhi High Court has dismissed the appeals filed by the Revenue Department against the favourable orders of the Hon’ble Income Tax Appellate Tribunal, New Delhi (“Hon’ble ITAT”). 3. That on the facts and circumstances of the case and in law, the Hon’ble Panel and the Ld. AO erred in holding that the receipts of the appellant are in the nature of "Royalties" within the ambit of Explanation 2 to section 9(i)(vi) of the Income-tax Act, 1961 (“the Act”) and Article 12(3) of the India-USA Double Taxation Avoidance Agreement (“DTAA”). 4. That without prejudice to the above, on facts and circumstances of the case and in law, the Hon’ble Panel and the Ld. AO erred in not appreciating that appellant being a resident of USA is covered by the beneficial provisions of DTAA between India and USA and accordingly, could not be taxed under the provisions of the Act. 5. That without prejudice to the above, on facts and circumstances of the case and in law, the Hon’ble Panel and the Ld. AO erred inferring that the expanded definition of “Royalties” contained in section 9(i)(vi) of the Act as retrospectively amended by Finance Act, 2012, is applicable on the definition of "Royalties" as provided under Article 12(3) of the India-USA DTAA, whereas it is a settled position in law that amendment in the Act cannot automatically impact the interpretation of a DTAA. 3 ITA No.4412/Del/2019 Intelsat Corporation Vs. ACIT 6. That without prejudice to the above, on the facts and in the circumstances of the case and in law, the Hon’ble Panel and Ld. AO erred in holding that the receipts of appellant from its non resident customers are also chargeable to tax in India as per the provisions of section 9(i)(vi)(c) of the Act and Article 12(7) of the India-USA DTAA. 6.1 That without prejudice to the above, on the facts and circumstances of the case and in law, the Hon’ble Panel and Ld. AO erred in categorizing the receipts of appellant from its nonresident customers into three categories without giving a reasonable and basis and accordingly, taxing percent, 50 percent and 5 percent of the revenue from such non-resident customers. 7. That the Ld. AO erred in initiating penalty proceedings under section 271(i)(c) of the Act The above grounds are without prejudice to each other. “ 3. The Ld. Counsel for the assessee submitted that, the issues involved in the present appeal have been decided by Coordinate Bench of Tribunal for Assessment Year 2015-16 in ITA No. 3199/Del/2018 vide order 11/10/2021 and following the said order, the similar issues have been once again decided in favour of the assessee for Assessment Year 2014-15 in ITA No. 4946/Del/2016 dated 13/12/2021. 4. Per Contra, the Ld. DR relied on the orders of the Lower Authorities but could bring any distinguishing decisions in favour of the Revenue. 5. We have carefully perused the orders of the authorities below, we find force in the contentions of the Ld. Counsel for the assessee. The similar issues have been cropped up and the same have been considered and decided by this Tribunal in ITA No. 3199/Del/2018 vide order dated 11/10/2021. The relevant findings read as under:- 4 ITA No.4412/Del/2019 Intelsat Corporation Vs. ACIT "8. We have carefully considered the orders of the authorities below. In our considered opinion and after going through the decisions of the Hon'ble High Court of Delhi in the case of the appellant, we find that the quarrel has now been well settled in favour of the assessee and against the Revenue by the decision of the Hon'ble High Court of Delhi in ITA No. 530/2012 and 545/2012 order dated 28.09.2012. The Hon'ble High Court of Delhi, again in ITA no. 900/2019, order dated 15.12.2019 had the occasion to consider similar quarrel and held as under: "The present appeal is directed against the order dated 26.03.2019 passed by the Income Tax Appellate Tribunal Delhi Bench (ITAT): „G‟, New Delhi in ITA No. 236/Del/2016 in respect of the assessment year 2012-13. The Tribunal has placed reliance on the decisions of this Court in M/s Asia Satellite Telecommunications Co. Ltd. Vs. DIT (2011) 332 ITR 340 (Del) and Director of International Taxation Vs. New Skies Satellite BV, (2016) 382 ITR 114 Del. Since the issues raised by the Revenue are squarely covered by the aforesaid decisions of this Court, in our view, no question of law arises for our consideration. Dismissed." 9. Similar view was taken in Assessment Year 2013-14 by this Tribunal in ITA No. 5534/DEL/2016 wherein the Tribunal has placed strong reliance on the decision of the Hon'ble High Court of Delhi in the case of Asia Satellite Telecommunications Co. Ltd 332 ITR 340 and New Sky Satellite 382 ITR 114 and since the order of the Tribunal was based on these decisions of the Hon'ble Jurisdictional High Court of Delhi, the Hon'ble High Court dismissed the appeal of the Revenue holding that no question of law arises. 10. Considering the facts of the case in light of the decisions of the Hon'ble Jurisdictional High Court [supra] in the appellant's own case, we direct the Assessing Officer to treat the income of the assessee as not liable to tax in India." 5 ITA No.4412/Del/2019 Intelsat Corporation Vs. ACIT 6. On finding the parity of facts, respectfully following the ratio laid down in the decisions of Coordinate Bench (supra), we direct the Assessing Officer to treat the income of the assessee as not liable to tax in India. 7. In the result, the appeal of the assessee in ITA No. 4412/Del/2019 is allowed. Order pronounced in the Open Court on this 20 th Day of May, 2022 Sd/- Sd/- ( DR. B.R.R. KUMAR ) (YOGESH KUMAR US) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 20/05/2022. *MEHTA/R.N* Copy forwarded to 1. Appellant; 2. Respondent; 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, New Delhi. 6 ITA No.4412/Del/2019 Intelsat Corporation Vs. ACIT