ACIT (IT) -4(1)(1), MUMBAI V. RELIANCE JIO INFOCOMM LTD., MUMBAI

ITA 5780/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 4646 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2018-2019
• Appeal Filed On: 08-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Double taxation relief; Retrospective amendment; Permanent establishment
• Section: 195; 6

Judgement Text

ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 1 OF 24 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAII BENCH, MUMBAI [CORAM: PRAMOD KUMAR (VICE PRESIDENT) AND PAWAN SINGH (JUDICIAL MEMBER)] ITA NO. 5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ASSISTANT COMMISSIONER OF INCOME-TAX APPELLANT (IT) 4(1)(1), MUMBAI VS RELIANCE JIO INFOCOMM LTD RESPONDENT 9 TH FLOOR, MAKER CHAMBERS, IV, 222, NARIMAN POINT, MUMBAI MAHARASHTRA-400 021 [PAN: AABCI6363G] APPEARANCES BY A. B. KOLI FOR THEAPPELLANT DR. SUNIL MOTI LALA FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING: SEPTEMBER 11, 2019 DATE OF PRONOUNCEMENT : NOVEMBER 25, 2019 ORDER PER PRAMOD KUMAR, VP: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED THE CORRECTNESS OF THE ORDER DATED 18 TH JULY, 2018, PASSED BY THE CIT(A)-57, MUMBAI, UPHOLDING THE APPE ALS, FILED BY THE ASSESSEE UNDER SECTION 248 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), IN THE MAT TER OF TAX WITHHOLDING LIABILITY UNDER SECTION 195 OF THE ACT, IN RESPECT OF A FOREIGN REMITTANCE MADE BY THE ASSESSEE DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2018- 19. 2. IN GROUND NOS. 1, 2, 3 & 4, WHICH WE WILL TAKE U P TOGETHER, THE ASSESSEE HAS RAISED THE FOLLOWING GRI EVANCES: ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 2 OF 24 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN HOLDING THAT TA X WAS NOT REQUIRED TO BE DEDUCTED AT SOURCE ON THE PAYMEN T MADE BY THE ASSESSEE TO RELIANCE JIOINFOCOMM PTE LIMITED , SINGAPORE (RJIPL) FOR AVAILING BANDWIDTH SERVICES A S IT DID NOT AMOUNT TO INCOME OF THE PAYEE BY WAY OF ROY ALTY U/S 9(1)(VI) OF THE IT ACT, 1961 READ WITH ARTICLE 12 OF INDIA-SINGAPORE DTAA? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN NOT TAKING INTO ACCOUNT THAT IN ABSENCE OF A DEFINITION OF THE TERM S 'USE OF OR RIGHT TO USE' AND 'PROCESS' IN ARTICLE 12 OF THE INDIA-SINGAPORE DTAA IN RELATION TO ROYALTY, ARTICL E 3(2) OF THE SAID DTAA ALLOWS FOR TAKING RECOURSE TO THE MEANING CONTAINED IN THE DOMESTIC LAW OF THE STATE APPLYING THE TREATY (THAT IS, INDIA)? 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN NOT CONSIDERING EXPLANATION 5 AND 6 TO SECTION 9(1)(VI) OF THE ACT IN RELATION TO PAYMENT MADE BY THE ASSESSEE TO RJIPL SINGAPORE FOR BANDWIDTH SERVICES IN LIGHT OF DIRECT MANDATE PROVIDED BY ARTICLE 3(2) OF THE INDIA-SINGA PORE DTAA? 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN NOT CONSIDERING EXPLANATION 5 AND 6 TO SECTION 9( 1 )(VI) OF THE AC T AS BEING DECLARATORY AND CLARIFICATORY AMENDMENTS EXPL AINING THE LAW AS EXISTING FROM 01.06.1976 ONWARDS AS THEY SATISFY THE CONDITIONS LAID DOWN BY A CONSTITUTION BENCH OF HON'BLE SUPREME COURT IN THE CASE OF COMMISSIONE R OF INCOME TAX (CENTRAL)-1, NEW DELHI VS VATIKA TOWNSHI P PVT LTD (CIVIL APPEAL NO. 8750 OF 2014 ARISING OUT OF S LP (C) NO. 540 OF 2009 FOR BEING AS SUCH? 3. WE FIND THAT THE GRIEVANCES SO RAISED ARE EXACTL Y THE SAME, AND ARISE OUT OF THE SAME SET OF FACTS, AS WE RE BEFORE A CO-ORDINATE BENCH IN ITA NOS. 6331 TO 6334/MUM/2018, WHICH WERE DISPOSED OF VIDE ORDER DATED 15 TH NOVEMBER, 2019. 4. WE FURTHER FIND THAT THE ABOVE ISSUES ARE SQUARE LY COVERED IN ASSESSEES OWN CASE, VIDE THE CO-ORDINATE BENCH ORD ER DATED 15 TH NOVEMBER, 2019, WHEREIN, THE CO-ORDINATE BENCH HAS, SPEAKING THROUGH ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 3 OF 24 ONE OF US (I.E., THE VICE PRESIDENT), INTER ALIA , OBSERVED AS FOLLOWS: 3. GRIEVANCE OF THE ASSESSEE, IN SUBSTANCE, IS THAT TH E LEARNED CIT(A) ERRED IN HOLDING THAT THE ASSESSEE D ID NOT HAVE TAX WITHHOLDING OBLIGATION IN RESPECT OF PAYME NTS OF BANDWIDTH SERVICES TO RELIANCE JIO INFOCOMM PTE L TD, SINGAPORE. 4. THE ISSUE IN APPEAL LIES IN A RATHER NARROW COMPASS OF MATERIAL FACTS. THE ASSESSEE BEFORE US IS AN INDIAN COMPANY AND IT HAS, UNDER A BANDWIDTH SERVICES AGREEMENT WI TH A SINGAPORE BASED ENTITY I.E. RELIANCE JIO INFOCOMM P TE LTD (RJ-S, IN SHORT), PAID US $ 15,91,520. WHILE THE AS SESSEE INITIALLY DEDUCTED THE TAX AT SOURCE @10%, UNDER TH E PROVISIONS OF ARTICLE 12 OF INDO SINGAPORE TAX TREA TY, AND GROSSED UP THE SAME UNDER SECTION 195A, THE ASSESSE E SUBSEQUENTLY FILED AN APPEAL UNDER SECTION 248 PRAY ING FOR A DECLARATION TO THE EFFECT THAT THE ASSESSEE WAS NOT LEGALLY LIABLE TO WITHHOLD THE TAX, AS DETAILED ABOVE, FROM THIS PAYMENT. IT WAS SUBMITTED BY THE ASSESSEE THAT RJ-S , BEING FISCALLY DOMICILED IN INDIA, IS ELIGIBLE TO THE BEN EFITS OF INDIA SINGAPORE TAX TREATY, THAT THE INCOME OF RJ-S , ON ACCOUNT OF BANDWIDTH SERVICES SO PROVIDED, IS PUREL Y IN THE NATURE OF ITS BUSINESS INCOME, AND THAT, IN TERMS O F THE REQUIREMENTS OF ARTICLE 7 OF INDO SINGAPORE TAX TRE ATY, SUCH AN INCOME CANNOT BE TAXED IN INDIA. THE ASSESSEE FI LED A COPY OF THE TAX RESIDENCY CERTIFICATE OF RJ-S, AS ISSUED BY THE INLAND REVENUE SERVICE OF SINGAPORE, A DECLARATION TO THE EFFECT THAT RJ-S DOES NOT HAVE A PERMANENT ESTABLIS HMENT (PE) IN INDIA, A COPY OF THE AGREEMENT ENTERED INTO BY T HE ASSESSEE WITH RJ-S, AND MADE ELABORATE SUBMISSIONS TO THE EFFECT THAT THESE PAYMENTS CANNOT BE BROUGHT TO TAX IN INDIA, EITHER IN TERMS OF THE PROVISIONS OF THE INCOME TAX ACT, 1961 OR EVEN IN TERMS OF THE PROVISIONS OF INDO SINGAPOR E TAX TREATY. UPHOLDING THE PLEA OF THE ASSESSEE, LEARNED CIT(A) OBSERVED, INTER ALIA, AS FOLLOWS: THE APPELLANT HAS ALSO MADE SUBMISSIONS THAT THE PAYMENTS TO RJIPL FOR BANDWIDTH SERVICES SHOULD NOT BE CONSIDERED AS ROYALTY UNDER THE ACT AS WELL AS UNDE R THE INDIA -SINGAPORE DTAA. IT IS NOTED THAT BASED ON TH E TERMS OF THE AGREEMENTS POINTED OUT BY THE APPELLAN T AND AS CONFIRMED IN THE DETAILED SUBMISSIONS FILED BEFO RE ME, THE APPELLANT HAS ONLY RECEIVED AN ACCESS TO SE RVICE AND NOT ANY ACCESS TO ANY EQUIPMENT OF RJIPL DEPLOY ED BY IT FOR PROVISION OF SUCH SERVICES NOR ANY ACCESS TO ANY PROCESS WHICH HELP IN PROVIDING SUCH BANDWIDTH SERV ICES. ALL INFRASTRUCTURE AND PROCESS REQUIRED FOR PROVISI ON OF BANDWIDTH SERVICES WAS ALWAYS USED AND UNDER THE CO NTROL OF RJIPL AND SAME WAS NEVER GIVEN BY RJIPL TO THE APPELLANT OR TO ANY PERSON WHO ARE AVAILING THE BAN DWIDTH ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 4 OF 24 SERVICES FROM RJIPL. FURTHER, RELYING ON THE VARIOU S DECISIONS OF THE INDIAN COURTS AS CITED BY THE APPELLANT, I AM OF THE VIEW THAT IF THE PROCESS INV OLVED TO PROVIDE THE SERVICE IS NOT 'SECRET' I.E. THE IPR IN THE PROCESS IS NOT OWNED / REGISTERED IN A SPECIFIC OWNER'S NAME BUT IS A STANDARD COMMERCIAL PROCESS FOLLOWED BY THE INDUSTRY PLAYERS, THEN THE SAME CAN NOT BE CLASSIFIED AS SECRET PROCESS AS REQUIRED UNDER T HE INDIA-SINGAPORE DTAA FOR THE PAYMENTS TO CONSTITUTE ROYALTY. I AM ALSO OF THE VIEW THAT AMENDMENTS IN T HE ACT CANNOT BE READ INTO TREATY PROVISIONS WITHOUT AMENDING THE TREATY ITSELF. THEREFORE, THE ARGUMENT S CITED BY THE APPELLANT WOULD STILL HOLD GOOD UNDER THE INDIA - SINGAPORE DTAA EVEN PURSUANT TO THE AMENDME NTS MADE BY THE FINANCE ACT 2012 AND THE MEANING OF THE TERM PROCESS AS DEFINED IN THE ACT IS FOR LIMITED PURPOS E OF SECTION 9(L)(VI) AND CANNOT BE READ INTO THE DTAA. FURTHER, BASED ON TERMS OF THE AGREEMENTS POINTED O UT BY THE APPELLANT AND AS CONFIRMED IN THE DETAILED SUBMISSIONS FILED BEFORE ME, THE APPELLANT MERELY RECEIVES SERVICES FROM RJIPL WHICH IS A STANDARD TE LECOM SERVICE AND IS NOT IN ANY WAY CONCERNED OR OBLIGED WHETHER DIRECTLY OR INDIRECTLY N RELATION TO THE EQUIPMENT DEPLOYED BY RJIPL FOR PROVISION OF THE BANDWIDTH SERVICES. THE APPELLANT NEITHER USES NOR HAS ANY RIGHT TO USE ANY OF THE EQUIPMENTS DEPLOYED BY RJIPL. ANY EQUIPMENT DEPLOYED BY RJIPL MAY BE USED BY IT FOR PROVIDING BANDWIDTH SERVICES TO VARIOUS OTHE R PERSONS AND NOT ONLY TO THE APPELLANT. THIS NECESSITATES THAT POSSESSION AND CONTROL OVER ANY EQUIPMENT REMAINS WITH KJIPL ONLY. THUS, BASED ON THESE FACTS AS ALSO CONSIDERING THE DEFINITION OF 'ROYALTY' UNDER THE INDIA-SINGAPORE D TAA WHICH IS NARROWER IN SCOPE COMPARED TO THE DEFINITI ON UNDER THE ACT, IT CAN BE CONCLUDED THAT THE AMOUNTS PAID BY THE APPELLANT TO RJIPL IS NEITHER TOWARDS U SE OF (OR FOR OBTAINING RIGHT TO USE) INDUSTRIAL/COMMERCIAL/SCIENTIFIC EQUIPMENT NOR TOWA RDS USE OF (OR FOR OBTAINING RIGHT TO USE) ANY PROCESS. IN LIGHT OF THE ABOVE DISCUSSION, I HOLD THAT THE PAYMENTS MADE BY THE APPELLANT TO RJIPL FOR PROVISI ON OF BANDWIDTH SERVICES WILL BE IN THE NATURE OF BUSI NESS PROFITS AND CANNOT BE CLASSIFIED AS FEES FOR TECHNI CAL SERVICES OR ROYALTY EITHER UNDER THE ACT OR THE IND IA- SINGAPORE DTAA. FURTHER, IN ABSENCE OF RJPLS BUSIN ESS CONNECTION OR A PE IN INDIA, THE BUSINESS PROFITS W ILL NOT BE TAXABLE IN INDIA. 5. THE ASSESSING OFFICER IS AGGRIEVED BY THE RELIEF SO ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 5 OF 24 GRANTED BY THE LEARNED CIT(A) AND IS IN APPEAL BEFO RE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MA TERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 7. A COORDINATE BENCH OF THIS TRIBUNAL, WHILE DEALING WITH THE SAME ISSUE IN ASSESSEES OWN CASE FOR THE ASSES SMENT YEAR 2016-17 AND IN THE JUDGMENT REPORTED AS DCIT VS RELIANCE JIO INFOCOMM LTD [(2019) 73 ITR (T) 194 (MUM)] , HAS, SPEAKING THROUGH ONE OF US (I.E. THE JUDICIAL MEMBER), OBSER VED, INTER ALIA, AS FOLLOWS: .WE FIND THAT OUR INDULGENCE IN THE PRESENT APPEA L HAS BEEN SOUGHT BY THE REVENUE TO ADJUDICATE AS TO WHET HER THE CIT(A) IS CORRECT IN CONCLUDING THAT THE AMOUNT PAID BY THE ASSESSEE FOR AVAILING BANDWIDTH SERVICES TO RJIPL DID NOT CONSTITUTE 'ROYALTY' AND WAS ITS 'BUSINESS PROFITS'. ADMITTEDLY, AS THE REVENUE HAS NOT ASSAIL ED THE OBSERVATIONS OF THE CIT(A) THAT THE PAYMENTS MADE B Y THE ASSESSEE TO RJIPL CANNOT BE HELD AS FTS, THEREFORE, WE CONFINE OURSELVES TO THE ISSUE TO THE EXTENT THE SA ME HAS BEEN ASSAILED BY THE REVENUE BEFORE US. AS IS DISCERNIBLE FROM THE RECORD, THE ASSESSEE PURSUANT TO THE TERMS OF THE 'AGREEMENT' HAD ONLY RECEIVED STANDARD FACILITIES I.E BANDWIDTH SERVICES FROM RJIPL. IN FA CT, AS OBSERVED BY THE CIT(A), THE ASSESSEE ONLY HAD AN ACCESS TO SERVICES AND DID NOT HAVE ANY ACCESS TO A NY EQUIPMENT DEPLOYED BY RJIPL FOR PROVIDING THE BANDW IDTH SERVICES. APART THERE FROM, THE ASSESSEE ALSO DID N OT HAVE ANY ACCESS TO ANY PROCESS WHICH HELPED IN PROV IDING OF SUCH BANDWIDTH SERVICES BY RJIPL. AS A MATTER OF FACT, ALL INFRASTRUCTURE AND PROCESS REQUIRED FOR PROVISION OF BANDWIDTH SERVICES WAS ALWAYS USED AND UNDER THE CONTROL OF RJIPL, AND THE SAME WAS NEVER GIVEN EITHER TO THE ASSESSEE OR TO ANY OTHER PERSON AVAIL ING THE SAID SERVICES. WE ARE PERSUADED TO SUBSCRIBE TO THE OBSERVATIONS OF THE CIT(A) THAT AS THE PROCESS INVO LVED TO PROVIDE THE WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE O RDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD AND THE JUDICIAL PRONOUNCEMENTS RELIED UPON BY THEM. WE FIND THAT OUR INDULGENCE IN THE PRESENT AP PEAL HAS BEEN SOUGHT BY THE REVENUE TO ADJUDICATE AS TO WHETHER THE CIT(A) IS CORRECT IN CONCLUDING THAT TH E AMOUNT PAID BY THE ASSESSEE FOR AVAILING BANDWIDTH SERVICES TO RJIPL DID NOT CONSTITUTE 'ROYALTY' AND WAS ITS 'BUSINESS PROFITS'. ADMITTEDLY, AS THE REVENUE HAS NOT ASSAILED THE OBSERVATIONS OF THE CIT(A) THAT TH E PAYMENTS MADE BY THE ASSESSEE TO RJIPL CANNOT BE HE LD AS FTS, THEREFORE, WE CONFINE OURSELVES TO THE ISSUE T O THE EXTENT THE SAME HAS BEEN ASSAILED BY THE REVENUE BE FORE ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 6 OF 24 US. AS IS DISCERNIBLE FROM THE RECORD, THE ASSESSEE PURSUANT TO THE TERMS OF THE 'AGREEMENT' HAD ONLY RECEIVED STANDARD FACILITIES I.E BANDWIDTH SERVICES FROM RJIPL. IN FACT, AS OBSERVED BY THE CIT(A), THE ASSE SSEE ONLY HAD AN ACCESS TO SERVICES AND DID NOT HAVE ANY ACCESS TO ANY EQUIPMENT DEPLOYED BY RJIPL FOR PROVI DING THE BANDWIDTH SERVICES. APART THERE FROM, THE ASSES SEE ALSO DID NOT HAVE ANY ACCESS TO ANY PROCESS WHICH H ELPED IN PROVIDING OF SUCH BANDWIDTH SERVICES BY RJIPL. A S A MATTER OF FACT, ALL INFRASTRUCTURE AND PROCESS REQU IRED FOR PROVISION OF BANDWIDTH SERVICES WAS ALWAYS USED AND UNDER THE CONTROL OF RJIPL, AND THE SAME WAS NEVER GIVEN EITHER TO THE ASSESSEE OR TO ANY OTHER PERSON AVAIL ING THE SAID SERVICES. WE ARE PERSUADED TO SUBSCRIBE TO THE OBSERVATIONS OF THE CIT(A) THAT AS THE PROCESS INVO LVED TO PROVIDE THE BANDWIDTH SERVICES WAS NOT A 'SECRET ' I.E IPR IN THE PROCESS WAS NOT OWNED/REGISTERED IN THE NAME OF RJIPL, BUT WAS A STANDARD COMMERCIAL PROCESS THA T WAS FOLLOWED BY THE INDUSTRY PLAYERS, THEREFORE, THE SA ME COULD NOT BE CLASSIFIED AS A 'SECRET PROCESS' WHICH WOULD HAVE BEEN REQUIRED FOR CHARACTERING THE AFORE SAID PAYMENT MADE BY THE ASSESSEE TO RJIPL AS 'ROYALTY' UNDER THE INDIA-SINGAPORE DTAA. WE ARE FURTHER IN AGREEME NT WITH THE VIEW TAKEN BY THE CIT(A) THAT AS THE AMOUN T PAID BY THE ASSESSEE TO RJIPL WAS NEITHER TOWARDS U SE OF (OR FOR OBTAINING RIGHT TO USE) INDUSTRIAL, COMMERC IAL OR SCIENTIFIC EQUIPMENT, NOR TOWARDS USE OF (OR FOR OBTAINING RIGHT TO USE) ANY SECRET FORMULA OR PROCE SS, THEREFORE, THE SAME COULD NOT BE CLASSIFIED AS PAYM ENT OF 'ROYALTY' BY THE ASSESSEE. INSOFAR THE LD. D.R HAD TRIED TO PRESS INTO SERVICE EXPLANATION 6 TO SEC. 9(1)(VI ), IN ORDER TO DRIVE HOME HIS CONTENTION THAT THE PAYMENT MADE BY THE ASSESSEE TO RJIPL FOR AVAILING THE BANDWIDTH SERVICES WOULD FALL WITHIN THE SWEEP OF 'ROYALTY' I S CONCERNED, WE ARE UNABLE TO PERSUADE OURSELVES TO A CCEPT THE SAME. IN OUR CONSIDERED VIEW, THE AMENDMENT IN SEC. 9(1)(VI) WILL NOT HAVE ANY BEARING ON THE DEFINITIO N OF 'ROYALTY' AS CONTEMPLATED IN THE INDIA-SINGAPORE DT AA. OUR AFORESAID VIEW IS FORTIFIED BY THE ORDER OF THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF THE CIT V. RELIANCE INFOCOMM LTD. (IT APPEAL NO. 1395 OF 2016, DATED 05.02.2019). THE HON'BLE HIGH COURT IN ITS AFORESAI D JUDGMENT HAD AFTER REFERRING TO THE JUDGMENTS OF TH E HON'BLE HIGH COURT OF DELHI IN THE CASE OF DIT V. N EW SKIES SATELLITE BV [2016] 382 ITR 114/238 TAXMAN 57 7/68 TAXMANN.COM 8 AND CIT V. SIEMENS AKTIONGESELLSCHAFT [2009] 310 ITR 320 (BOM)] HAD AFTER DELIBERATING ON THE AMENDMENT MADE AVAILABLE ON THE STATUTE BY THE EXPLANATION 6 TO SEC. 9(1)(VI), OBSERVED THAT MERE AMENDMENT IN THE I-T ACT WOULD NOT OVERRIDE THE PROVISIONS OF DTAA TREATIES. IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, WE SHALL NOW FURTHER DELIBE RATE ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 7 OF 24 ON THE DEFINITION OF ROYALTY AS CONTEMPLATED IN THE INDIA-SINGAPORE TAX TREATY. IN OUR CONSIDERED VIEW THERE IS SUBSTANTIAL FORCE IN THE CONTENTION ADVANCED BY THE LD. A.R THAT THOUGH THE TERM 'ROYALTY' AS USED IN ARTICLE 12 OF INDIA-HUNGARY DTAA TAKES WITHIN ITS S WEEP '...TRANSMISSION BY SATELLITE, CABLE, OPTIC FIBRE O R SIMILAR TECHNOLOGY', HOWEVER, THE DEFINITION OF 'ROYALTY' IN THE INDIA-SINGAPORE TAX TREATY WITH WH ICH WE ARE CONCERNED HAS A NARROW MEANING. IN FACT, WE FIND THAT DESPITE THE FACT THAT THE INDIA-SINGAPORE TAX TREATY WAS AMENDED BY NOTIFICATION NO. SO 935(E), DATED 23.03.2017, HOWEVER, THE DEFINITION OF 'ROYALTY' TH EREIN ENVISAGED HAD NOT BEEN TINKERED WITH AND REMAINS AS SUCH. WE THUS IN TERMS OF OUR AFORESAID OBSERVATION S ARE OF THE CONSIDERED VIEW THAT THE AMOUNT RECEIVED BY RJIPL FROM THE ASSESSEE FOR PROVIDING STANDARD BANDWIDTH SERVICES COULD NOT BE CHARACTERISED AS 'ROYALTY' AS PER THE INDIA- SINGAPORE DTAA, AND AS RIGHTLY OBSERVED BY THE CIT(A), WAS IN FACT THE 'BUSINESS PROFITS' OF RJIPL . INSOFAR THE TAXABILITY OF THE AFORESAID 'BUSINESS PROFITS' IS CONCERNED, WE FIND THAT AS RJIPL DID NO T HAVE ANY BUSINESS CONNECTION OR A PE IN INDIA, THER EFORE, THE SAME AS PER ARTICLE 7 OF THE INDIA-SINGAPORE DT AA COULD NOT HAVE BEEN BROUGHT TO TAX IN INDIA SERVICE S WAS NOT A 'SECRET' I.E IPR IN THE PROCESS WAS NOT OWNED/REGISTERED IN THE NAME OF RJIPL, BUT WAS A STANDARD COMMERCIAL PROCESS THAT WAS FOLLOWED BY TH E INDUSTRY PLAYERS, THEREFORE, THE SAME COULD NOT BE CLASSIFIED AS A 'SECRET PROCESS' WHICH WOULD HAVE B EEN REQUIRED FOR CHARACTERING THE AFORESAID PAYMENT MAD E BY THE ASSESSEE TO RJIPL AS 'ROYALTY' UNDER THE INDIA- SINGAPORE DTAA. WE ARE FURTHER IN AGREEMENT WITH TH E VIEW TAKEN BY THE CIT(A) THAT AS THE AMOUNT PAID BY THE ASSESSEE TO RJIPL WAS NEITHER TOWARDS USE OF (OR FO R OBTAINING RIGHT TO USE) INDUSTRIAL, COMMERCIAL OR SCIENTIFIC EQUIPMENT, NOR TOWARDS USE OF (OR FOR OBTAINING RIGHT TO USE) ANY SECRET FORMULA OR PROCE SS, THEREFORE, THE SAME COULD NOT BE CLASSIFIED AS PAYM ENT OF 'ROYALTY' BY THE ASSESSEE. INSOFAR THE LD. D.R H AD TRIED TO PRESS INTO SERVICE EXPLANATION 6 TO SEC. 9(1)(VI), IN ORDER TO DRIVE HOME HIS CONTENTION THA T THE PAYMENT MADE BY THE ASSESSEE TO RJIPL FOR AVAILING THE BANDWIDTH SERVICES WOULD FALL WITHIN THE SWEEP OF 'ROYALTY' IS CONCERNED, WE ARE UNABLE TO PERSUADE OURSELVES TO ACCEPT THE SAME. IN OUR CONSIDERED VIEW, THE AMENDMENT IN SEC. 9(1)( VI) WILL NOT HAVE ANY BEARING ON THE DEFINITION OF 'ROY ALTY' AS CONTEMPLATED IN THE INDIA-SINGAPORE DTAA. OUR AFORESAID VIEW IS FORTIFIED BY THE ORDER OF THE HON 'BLE HIGH COURT OF BOMBAY IN THE CASE OF THE CIT V. RELI ANCE INFOCOMM LTD. (IT APPEAL NO. 1395 OF 2016, DATED 05.02.2019). THE HON'BLE HIGH COURT IN ITS AFORESAI D ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 8 OF 24 JUDGMENT HAD AFTER REFERRING TO THE JUDGMENTS OF TH E HON'BLE HIGH COURT OF DELHI IN THE CASE OF DIT V. N EW SKIES SATELLITE BV [2016] 382 ITR 114/238 TAXMAN 57 7/68 TAXMANN.COM 8 AND CIT V. SIEMENS AKTIONGESELLSCHAFT [2009] 310 ITR 320/17 7 TAXMAN 8/(BOM.) HAD AFTER DELIBERATING ON THE AMEND MENT MADE AVAILABLE ON THE STATUTE BY THE EXPLANATION 6 TO SEC. 9(1)(VI), OBSERVED THAT MERE AMENDMENT IN THE I-T ACT WOULD NOT OVERRIDE THE PROVISIONS OF DTAA TREAT IES. IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, WE S HALL NOW FURTHER DELIBERATE ON THE DEFINITION OF ROYALT Y AS CONTEMPLATED IN THE INDIA-SINGAPORE TAX TREATY. IN OUR CONSIDERED VIEW THERE IS SUBSTANTIAL FORCE IN T HE CONTENTION ADVANCED BY THE LD. A.R THAT THOUGH THE TERM 'ROYALTY' AS USED IN ARTICLE 12 OF INDIA-HUNGARY DT AA TAKES WITHIN ITS SWEEP '...TRANSMISSION BY SATELLIT E, CABLE, OPTIC FIBRE OR SIMILAR TECHNOLOGY', HOWEVER, THE DEFINITION OF 'ROYALTY' IN THE INDIA-SINGAPORE TAX TREATY WITH WHICH WE ARE CONCERNED HAS A NARROW MEANING. IN FACT, WE FIND THAT DESPITE THE FACT THA T THE INDIA-SINGAPORE TAX TREATY WAS AMENDED BY NOTIFICAT ION NO. SO 935(E), DATED 23.03.2017, HOWEVER, THE DEFIN ITION OF 'ROYALTY' THEREIN ENVISAGED HAD NOT BEEN TINKERE D WITH AND REMAINS AS SUCH. WE THUS IN TERMS OF OUR AFORESAID OBSERVATIONS ARE OF THE CONSIDERED VIEW T HAT THE AMOUNT RECEIVED BY RJIPL FROM THE ASSESSEE FOR PROVIDING STANDARD BANDWIDTH SERVICES COULD NOT BE CHARACTERISED AS 'ROYALTY' AS PER THE INDIA- SINGAP ORE DTAA, AND AS RIGHTLY OBSERVED BY THE CIT(A), WAS IN FACT THE 'BUSINESS PROFITS' OF RJIPL. INSOFAR THE TAXABI LITY OF THE AFORESAID 'BUSINESS PROFITS' IS CONCERNED, W E FIND THAT AS RJIPL DID NOT HAVE ANY BUSINESS CONNEC TION OR A PE IN INDIA, THEREFORE, THE SAME AS PER ARTICL E 7 OF THE INDIA-SINGAPORE DTAA COULD NOT HAVE BEEN BRO UGHT TO TAX IN INDIA 8. LEARNED DEPARTMENTAL REPRESENTATIVES ARMOURY IS, HOWEVER, NOT EXHAUSTED. 9. LEARNED DEPARTMENTAL REPRESENTATIVES BASIC STAND IS THAT THE SPECIFIC ISSUES RAISED IN THE GROUNDS OF APPEAL , WHICH GO TO THE ROOT OF MATTER AND CONCLUSIVELY UPHOLD THE S TAND OF THE ASSESSING OFFICER, ARE NOT DEALT WITH IN THE JU DICIAL PRECEDENTS RELIED UPON. AS WE HAVE NOTED EARLIER AS WELL, AND AS EVIDENT FROM THE SPECIFIC GROUNDS OF APPEAL, THE SPECIFIC PLEA TAKEN IN THIS APPEAL IS THAT THE EXPLANATION 5 AND 6 TO SECTION 9(1)(VI) MUST HOLD THE FIELD, IN THE CONTEX T OF INTERPRETATION OF ARTICLE 12 OF THE INDO SINGAPORE TAX TREATY SO FAR CONNOTATIONS OF UNDEFINED EXPRESSIONS THEREI N ARE CONCERNED, IN VIEW OF THE SPECIFIC PROVISIONS OF AR TICLE 3(2) OF INDO SINGAPORE TAX TREATY ITSELF AND IN THE LIGH T OF, AS THE GROUNDS OF APPEAL POINT OUT, HONBLE SUPREME CO URTS ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 9 OF 24 JUDGMENT IN THE CASE OF VATIKA TOWNSHIP PVT LTD (SU PRA). 10. IT IS ONLY IN EXCEPTIONAL CASES THAT THERE IS AN OCCASION TO DEVIATE FROM THE DECISIONS OF THE COORD INATE BENCHES, BUT THAT DOES NOT MEAN THAT IN THE COVERED CASES ALL DOORS ARE SHUT ON THE PARTIES. WHEN A COORDINATE BE NCH JUDGMENT DOES NOT APPEAL TO ANOTHER COORDINATE BENC H, OR WHEN THE COORDINATE BENCH DISCOVERS THAT THE JUDICIAL PR ECEDENT IS RENDERED PER INCURIUM, IT COULD INDEED BE OPEN TO T HE COORDINATE BENCH TO REFER THE MATTER FOR THE CONSID ERATION OF A LARGER BENCH, OR, IN A FIT CASE, HOLD THAT THE JU DICIAL PRECEDENT, FOR THE SPECIFIC REASONS SET OUT, IS NOT A BINDING JUDICIAL PRECEDENT. LET US ALSO NOT LOSE SIGHT OF T HE FACT THAT, AS POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE, THERE IS A DIRECT DECISION OF HONB LE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS SIEMENS AKTIONGESELLSCHAFT [(2009) 310 ITR 320 (BOM)] , UPHOLDING AMBULATORY APPROACH TO DOMESTIC LAW MEANING OF UNDE FINED TERMS UNDER ARTICLE 3(2), AND, IF THE SAME APPROACH IS AD OPTED IN THE PRESENT CASE FOR CERTAIN EXPRESSIONS APPEARING IN THE DEFINITION IN THE ROYALTY, THE PLEA OF THE REVENUE, AT LEAST ON THE FACE OF IT, DOES NOT SEEM TO BE TOTALLY DEVO ID OF LEGALLY SUSTAINABLE MERITS. IN ANY EVENT, EVEN THOU GH THE DECISION RELIED UPON REFERS TO THE AFORESAID DECISI ON, IT DOES NOT AT ALL DEAL WITH THE INTERPLAY OF DOMESTIC LAW DEFINITIONS, UNDER ARTICLE 3(2), WITH UNDEFINED TRE ATY EXPRESSIONS. OF COURSE, THAT IS ONLY ONE OF THE ASP ECTS OF THE MATTER AND THERE ARE MANY OTHER NUANCES OF THE MATTER WHICH NEED TO BE TAKEN NOTE OF, ANALYSED AND TAKEN A CONSCIOUS CALL ON. LET US, IN THIS BACKDROP, NEATLY IDENTIFY AND THEN DEAL WITH THE CORE ISSUE, AS BEING RAISED BEFORE US NOW, AND THAT CORE ISSUE IS THE INTERPRETATION TO B E ASSIGNED TO THE EXPRESSION PROCESS FOR THE PURPOSE OF ARTI CLE 12(3)(A) WHICH PROVIDES THAT THE TERM 'ROYALTIES' AS USED IN THIS ARTICLE MEANS PAYMENTS OF ANY KIND RECEIVED AS A CONSIDERATION FOR THE USE OF, OR THE RIGHT TO USE: (A) ANY COPYRIGHT OF A LITERARY, ARTISTIC OR SCIENTIFIC WOR K, INCLUDING CINEMATOGRAPH FILM OR FILMS OR TAPES USED FOR RADIO OR TELEVISION BROADCASTING, ANY PATENT, TRADE MARK, DESIGN OR MODEL, PLAN, SECRET FORMULA OR PROCESS (EMPHASIS, BY UNDERLINING, SUPPLIED BY US NOW) , OR FOR INFORMATION CONCERNING INDUSTRIAL, COMMERCIAL OR SCIENTIFIC EXP ERIENCE, INCLUDING GAINS DERIVED FROM THE ALIENATION OF ANY SUCH RIGHT, PROPERTY OR INFORMATION . THE EXPRESSION PROCESS , WHICH FINDS MENTION IN THIS TREATY PROVISION, IS NO T DEFINED IN THE TREATY ITSELF. LEARNED DEPARTMENTAL REPRESEN TATIVES CONTENTION IS THAT IN THE LIGHT OF ARTICLE 3(2) OF THE TREATY, WHICH STATES THAT (A)S REGARDS THE APPLICATION OF THE AGREEMENT BY A CONTRACTING STATE, ANY TERM NOT DEFI NED THEREIN SHALL, UNLESS THE CONTEXT OTHERWISE REQUIRE S, HAVE, THE MEANING WHICH IT HAS UNDER THE LAW OF THAT STAT E CONCERNING THE TAXES TO WHICH THE AGREEMENT APPLIES , THE ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 10 OF 24 DOMESTIC LAW MEANING OF THE EXPRESSION PROCESS, W HICH IS SET OUT IN EXPLANATION 6 TO SECTION 9(1)(VII), MUST HOLD THE FILED. EXPLANATION 6 TO SECTION 9(1)(VII), WHICH WA S INSERTED VIDE THE FINANCE ACT 2012 WITH RETROSPECTIVE EFFECT FROM 1 ST JUNE 1976, PROVIDES THAT (F)OR THE REMOVAL OF DOUBTS, IT IS HEREBY CLARIFIED THAT THE EXPRESSION 'PROCESS' INCL UDES AND SHALL BE DEEMED TO HAVE ALWAYS INCLUDED TRANSMISSIO N BY SATELLITE (INCLUDING UP-LINKING, AMPLIFICATION, CON VERSION FOR DOWN-LINKING OF ANY SIGNAL), CABLE, OPTIC FIBRE OR BY ANY OTHER SIMILAR TECHNOLOGY, WHETHER OR NOT SUCH PROCE SS IS SECRET . IN PLAIN WORDS, GOING BY THE COMPLEX WEB OF THIS LINE OF ARGUMENT, THUS, IN THE ABSENCE OF ANY SPECI FIC DEFINITION OF PROCESS IN THE INDO SINGAPORE TAX T REATY, THE DOMESTIC LAW MEANING OF THIS EXPRESSION MUST LAW PR EVAIL UNDER ARTICLE 3(2), AND, GOING BY THE DOMESTIC LAW MEANING UNDER EXPLANATION 6 TO SECTION 9(1)(VII), ANY TRANS MISSION BY SATELLITE (INCLUDING (INCLUDING UP-LINKING, AMPLIFI CATION, CONVERSION FOR DOWN-LINKING OF ANY SIGNAL), CABLE, OPTIC FIBRE OR BY ANY OTHER SIMILAR TECHNOLOGY, WHETHER O R NOT SUCH PROCESS IS SECRET, IS COVERED BY THE DEFINITION OF ROYALTY UNDER ARTICLE 13(3)(A) OF THE INDO SINGAPORE TAX TR EATY, AND SINCE THE BANDWIDTH SERVICES, ON THE FACTS OF THIS CASE, ARE TRANSMITTED BY SATELLITE, CABLE, OPTIC FIBRE OR OTH ER SIMILAR TECHNOLOGY, THE BANDWIDTH SERVICES CONSTITUTES ROY ALTY FOR THE PURPOSE OF ARTICLE 13(3)(A). AS FOR THE REFEREN CE TO VATIKA TOWNSHIP DECISION (SUPRA), IT IS CONTENDED, AS STATED IN SO MANY WORDS IN THE FOURTH GROUND OF APPEAL, TH E INSERTION OF EXPLANATION 5 AND 6, THOUGH BY THE VIR TUE OF FINANCE ACT 2012, IS ONLY A DECLARATORY AND CLARIF ICATORY AMENDMENT EXPLAINING THE LAW AS EXISTING FROM 01.06 .1976. A LOT OF EMPHASIS HAS BEEN PLACED ON THE INTERPLAY OF ARTICLE 3(2) WITH DOMESTIC LAW MEANING OF A TERM USED IN, B UT NOT DEFINED IN, THE INDO SINGAPORE TAX TREATY. THE THRU ST OF LEARNED DEPARTMENTAL REPRESENTATIVES ARGUMENT IS T HAT IN SUCH A SITUATION, I.E. WHEN A TERM USED IN A TREATY IS NOT DEFINED IN THE TREATY, DOMESTIC LAW MEANING OF THE TERM MUST PREVAIL. THE EXPRESSION PROCESS, ON THE BASIS OF THIS ARGUMENT AND ON THE STRENGTH OF ARTICLE 3(2) OF TRE ATY ITSELF, IS CLAIMED TO COVER TRANSMISSION BY SATELLITE (INCLUDING UP-LINKING, AMPLIFICATION, CONVERSION FO R DOWN- LINKING OF ANY SIGNAL), CABLE, OPTIC FIBRE OR BY AN Y OTHER SIMILAR TECHNOLOGY, WHETHER OR NOT SUCH PROCESS IS SECRET AS IS THE CASE OF BANDWIDTH SERVICES PROVIDED BY RJ-S . IT IS ALSO POINTED OUT THAT THE ADOPTION OF DOMESTIC LAW MEANING FOR TREATY PURPOSES, AS IT IS MANDATED BY THE TREAT Y ITSELF VIDE ARTICLE 3(2), REMAINS UNAFFECTED BY THE PROVIS IONS OF SECTION 90(2). THE QUESTION OF TREATY SUPERIORITY, UNDER THE PROVISIONS OF THE INDIAN INCOME TAX ACT 1961, COMES INTO PLAY ONLY WHEN THE DOMESTIC LAW MEANING IS NOT ASSIGNED BY THE TREATY ITSELF. 11. THERE IS A FUNDAMENTAL FALLACY, IN OUR HUMBLE ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 11 OF 24 UNDERSTANDING, IN THIS ARGUMENT, AND THE FALLACY LI ES IN THE PROPOSITION THAT THE EXPRESSION PROCESS IS A TREA TY TERM FOR WHICH ARTICLE 3(2) CAN BE INVOKED. OF COURSE, E VEN WITHOUT ARTICLE 3(2), WHEN MEANINGS OF AN EXPRESSIO N, WHETHER A TREATY TERM OR NOT, ARE TO BE EXPLORED, ALL SOURC ES OF MEANINGS, INCLUDING IN THE DOMESTIC LAW, WILL BE RE LEVANT BUT THEN, IN SUCH A SITUATION, THE BINDING FORCE OF ART ICLE 3(2) WILL BE MISSING IN THE SENSE THAT IT WILL NOT BE NE CESSARY TO ESTABLISH, BEFORE ADOPTING A MEANING OTHER THAN THE DOMESTIC LAW MEANING, THAT ITS THE COMPULSION OF CONTEXT RE QUIRING THAT THE DOMESTIC LAW MEANING IS TO BE DISCARDED. 12. ITS IMPORTANT TO NOTE THAT THE PROVISIONS OF ARTIC LE 3(2) COME INTO PLAY FOR DOMESTIC LAW MEANING OF AN Y TERM NOT DEFINED (EMPHASIS, BY UNDERLINING, SUPPLIED BY US) IN THE TAX TREATY. TO INVOKE THE PROVISIONS OF ARTICLE 3(2 ), THE FIRST THING TO BE SEEN IS WHETHER THE UNDEFINED EXP RESSION CAN BE SAID TO BE A TREATY TERM. THE EXPRESSION TE RM IS DEFINED AS A WORD OR PHRASE USED TO DESCRIBE A THI NG OR TO EXPRESS A CONCEPT, ESPECIALLY IN A PARTICULAR KIND OF LANGUAGE OR BRANCH OF STUDY. A TERM IS THUS A WO RD THAT HAS MEANING AND REFERS TO OBJECTS, IDEAS, EVENTS OR A S TATE OF AFFAIR. A TERM IS THUS, IN ADDITION TO BEING A WORD , SOME KIND OF A POINT OF REFERENCE, WHEREAS A WORD IS ONL Y A CONSTITUENT OF LANGUAGE. AS A COROLLARY TO THESE DI SCUSSIONS, ARTICLE 3(2) WILL COME INTO PLAY ONLY IN RESPECT OF THE UNDEFINED TREATY TERMS, WHICH ARE IN THE NATURE OF REFERENCE POINTS AND WHICH HAVE SOME PECULIAR SIGNIFICANCE AS A TERM EMPLOYED IN THE TREATY, AND NOT ALL THE UNDEFINED W ORDS AND EXPRESSIONS USED IN A TREATY. TO PUT A QUESTION TO OURSELVES, DOES THE EXPRESSION PROCESS, IN ITS OWN RIGHT, HA S ANY RELEVANCE FOR THE TAX TREATIES OR CAN PROCESS TO BE SAID TO BE A TERM EMPLOYED IN TAX TREATIES? THE ANSWER IS I N NEGATIVE. IF AT ALL THE EXPRESSION PROCESS HAS ANY RELEVANC E, IT IS IN DEFINING A TREATY TERM I.E. ROYALTY. TO LOOK F OR STATUTORY DEFINITIONS OF EACH WORD EMPLOYED IN A DE FINITION OF THE TREATY TERM, AND THEN CONSTRUCT THE DEFINITI ON OF TREATY TERM AS AN ASSEMBLY OF THE STATUTORY DEFINIT IONS OF ALL THESE WORDS TAKEN TOGETHER WILL BE TOO HYPER TE CHNICAL AN APPROACH, AND, IN ANY CASE, BEYOND THE MANDATE OF A RTICLE 3(2). THAT DOES NOT APPEAL TO US. IT IS EVEN MORE INAPPROPRIATE BECAUSE PROCESS IS JUDICIALLY EXPLA INED BUT THE STATUTORY DEFINITION IS BEING INVOKED, UNDER AR TICLE 3(2), TO DISLODGE THE JUDICIAL INTERPRETATION. QUIT E CLEARLY, THEREFORE, BUT FOR THE BINDING FORCE OF ARTICLE 3(2 ), THIS STATUTORY DEFINITION DOES NOT COME TO THE RESCUE OF ASSESSING OFFICERS CASE, AND IT IS THIS BINDING FORCE OF ART ICLE 3(2) WHICH DOES NOT COME INTO PLAY IN EXPLAINING THE WOR D PROCESS USED IN DEFINITION OF A TREATY TERM I.E. ROYALTY. OF COURSE, ROYALTY IS A TREATY TERM BUT SINCE IT IS WELL DEFINED TERM IN THE TREATY, ITS DOMESTIC LAW MEANIN G IS NOT RELEVANT FOR TREATY PURPOSES. THE EXPRESSION PROCE SS IS ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 12 OF 24 DEFINED IN THE DOMESTIC LAW BUT THIS DEFINITION IS IN THE LIMITED CONTEXT OF EXPLAINING THE TERM ROYALTY UN DER THE DOMESTIC LAW, IT CANNOT BE BORROWED IN THE TREATY F OR UNDERSTANDING CONNOTATIONS OF ROYALTY UNDER THE T REATY. IT CANNOT BE, IN OUR HUMBLE UNDERSTANDING, OPEN TO PIC K UP A PART OF THE DEFINITION OF ROYALTY UNDER THE DOMESTI C LAW AND SUPPLY THE SAME TO AN UNDEFINED EXPRESSION IN THE D EFINITION OF ROYALTY UNDER THE TREATY. THE EXPRESSION PROCES S IS NOT A TREATY TERM PER SE, OR A REFERENCE POINT, USED IN THE TREATY, RATHER IT IS AN EXPRESSION OR WORD USED IN DEFINING THE TREATY TERM ROYALTY. THE EXPRESSION PROCESS IS USED IN THE TREATY IN THAT LIMITED CONTEXT AND IT DOES N OT HAVE AN INDEPENDENT EXISTENCE. THE DEFINITION OF ROYALTY UNDER THE DOMESTIC LAW, AS IT STANDS NOW, IS MORE EXHAUSTIVE INASMUCH AS THE EXPRESSION PROCESS USED IN THE DEFINITION IS FURTHER ELABORATED UPON IN EXPLANATION 6 TO SECTION 9(1)(VI ) WHICH DOES NOT, IN ANY CASE, PROVIDE A UNIVERSAL RULE AS IT IS IN THE CONTEXT OF THIS PARTICULAR SUB SECTION DEALING WITH THE INCOME BY WAY OF ROYALTY. THE DEFINITION OF EXPRE SSION PROCESS IS THUS NOT A STANDALONE DEFINITION WHICH CAN BE IMPORTED IN TREATY UNDER ARTICLE 3(2). 13. THE DOMESTIC LAW MEANING UNDER ARTICLE 3(2) IS RELE VANT ONLY WHEN THE TREATY TERM ITSELF IS UNDEFINED, AS N OTED BY HONBLE DELHI HIGH COURT IN THE CASE OF DIT VS NEW SKIES SATELLITE BV [(2016) 328 ITR 114 (DEL)] . WHEN THE EXPRESSION ROYALTY IS A DEFINED EXPRESSION UNDER THE APPLICA BLE TAX TREATY, THERE CANNOT BE ANY OCCASION TO INVOKE ARTI CLE 3(2) FOR FURTHER DISSECTING THE ISSUE AND EXPLORE THE DO MESTIC LAW MEANING OF EACH EXPRESSION USED IN THIS DEFINITION FOR COMING AT THE CONCLUSIONS ABOUT CONNOTATIONS OF ROYALTY. I T CANNOT, THEREFORE, BE OPEN TO INVOKE ARTICLE 3(2) TO IMPORT DOMESTIC LAW MEANING, EVEN PARTLY, WHEN THE TREATY TERM HAS RECEIVED A DEFINITION UNDER THE TREATY. IT IS FOR THIS REASON THAT EXPLANATION 6 TO SECTION 9(1)(VI), IN OUR HUMBLE UNDERSTANDING, HAS NO ROLE, UNDER ARTICLE 3(2) OF T HE TREATY, IN EXPLAINING THE EXPRESSION PROCESS, IN THE CONT EXT OF DEFINING ROYALTY UNDER THE INDO SINGAPOREAN TAX TRE ATY. THIS STATUTORY PROVISION, UNDER THE DOMESTIC LAW, IS REL EVANT ONLY WHEN THE DEFINITION OF ROYALTY UNDER SECTION 9(1)(V I) OF THE INCOME TAX ACT, 1961, IS SUBJECT MATTER OF CONSIDER ATION, AS IT SPECIFICALLY STATES THAT SAID DEFINITION IS FOR THE PURPOSE OF FOR THE PURPOSE OF THIS CLAUSE [I.E. SE CTION 9(I)(V)]. 14. EVEN IF WE PROCEED ON THE BASIS THAT PROCESS CAN BE TREATED AS AN UNDEFINED TREATY TERM, WHICH, IN OUR HUMBLE UNDERSTANDING, IT IS NOT, AND THAT EXPLANATION 6 TO SECTION 9(1)(VI) CAN HAVE A ROLE IN ASSIGNING DOMESTIC LAW MEANING TO THE EXPRESSION PROCESS, THE NEXT FUNDAMENTAL QUES TION, HOWEVER, THAT WE MUST CONSIDER IS WHETHER, ON THE F ACTS AND IN THE CIRCUMSTANCES OF THIS CASE, ASSIGNMENT OF TH E DOMESTIC ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 13 OF 24 LAW MEANING UNDER ARTICLE 3(2), TO AN UNDEFINED TRE ATY TERM, IS TO BE DONE BY WAY OF STATIC INTERPRETATION OR BY WAY OF DYNAMIC OR AMBULATORY INTERPRETATION. IN PLAIN WORD S, THE MEANING TO BE ASSIGNED TO THE UNDEFINED TREATY TERM S SHOULD BE GIVEN IN THE LIGHT OF THE LAW AS IT STOOD AT THE POINT OF TIME WHEN TREATY WAS ENTERED INTO OR THE LAW AS IT STANDS AT THE POINT OF TIME WHEN RELATED TAXES ARE LEVIED. IF THE STATIC INTERPRETATION IS TO BE GIVEN, IT DOES NOT COME TO THE RESCUE OF THE REVENUES CASE. THE EXPRESSION PROCESS WAS NOT, AT THE POINT OF TIME RELEVANT TO STATIC INTERPRETATION , NOT STATUTORILY DEFINED, AND IF THE JUDICIAL INTERPRETA TION OF TERM PROCESS, WITHOUT THE AID OF EXPLANATION 6 TO SECTION 9(1)(VI), IS TO BE TAKEN INTO ACCOUNT, IT DOES NOT SUPPORT THE CASE OF THE REVENUE EITHER. THERE IS NO DISPUTE ON THIS FUNDAMENTAL POSITION. IT IS ALSO ELEMENTARY THAT WH EN HONBLE COURTS LAY DOWN THE LAW, OR WHEN A JUDICIAL INTERPR ETATION IS GIVEN, IT IS NOT FROM PROSPECTIVE EFFECT, AND IT RE LATES BACK TO THE POINT OF TIME WHEN LAW WAS LEGISLATED. EFFEC TIVELY, THEREFORE, JUDICIAL RULING, WITHOUT TAKING INTO ACC OUNT EXPLANATION 6 TO SECTION 9(1)(VI) WILL HOLD THE FIE LD, AND UNDISPUTEDLY THESE RULINGS DO NOT HELP THE CASE OF THE REVENUE. HOWEVER, APART FROM EMPHASIS ON AMBULATORY INTERPRETATION IN MODEL CONVENTIONS AND THEIR COMME NTARIES, AND CONCEPTUAL JUSTIFICATION FOR THAT APPROACH IN G ENERAL, THERE ARE CERTAIN OBSERVATIONS MADE BY HONBLE JURI SDICTIONAL HIGH COURT, IN THE CASE OF SIEMENS AKTIONGESELLSCHA FT (SUPRA) WHICH GIVE AN IMPRESSION THAT SUCH AN EXERCISE CAN ONLY BE AMBULATORY EXERCISE. LET US, THEREFORE, DEAL WITH T HIS JUDICIAL PRECEDENT IN SOME DETAIL. 15. HONBLE JURISDICTIONAL HIGH COURT HAD, IN THE CASE OF CIT VS SIEMENS AKTIONGESELLSCHAFT [(2009) 310 ITR 3 20 (BOM)] HAD AN OCCASION TO CONSIDER THE QUESTION WHETHER TH E DOMESTIC LAW MEANING TO BE SUPPLIED TO A TREATY PRO VISION SHOULD BE THE MEANING AS PREVAILING AT THE POINT OF TIME WHEN AGREEMENT WAS ENTERED INTO OR AS PREVAILING AT THE POINT OF TIME WHEN TAXES ARE LEVIED, I.E. WHETHER SUCH AN INTERPRETATION SHOULD BE STATIC INTERPRETATION OR A MBULATORY INTERPRETATION. REJECTING THE PLEA OF THE ASSESSEE SEEKING STATIC INTERPRETATION, HONBLE HIGH COURT, HAVING N OTED THE ARGUMENT AGAINST THE ASSESSEE THAT CONSIDERING ARTICLE II(2), THE EXPRESSION 'LAWS IN FORCE' [EMPHASIS, BY UNDERLINING, SUPPLIED BY US NOW] AS CONTAINED IN DTAA, THE AMBULATORY INTERPRETATION WILL HAVE TO BE ACCEPTED HAS HELD THAT CONSIDERING THE EXPRESS LANGUAGE OF ARTICLE II(2) I T IS NOT POSSIBLE TO ACCEPT THE BROAD PROPOSITION URG ED ON BEHALF OF THE ASSESSEE THAT THE LAW WOULD BE THE LA W AS WAS APPLICABLE OR AS DEFINED WHEN THE DTAA WAS ENTERED INTO. INTERESTINGLY, THE WORDS EMPLOYED IN ARTICLE II(2) OF THE OLD INDO GERMAN TAX TREATY, WHICH IS WHAT THEIR LOR DSHIPS WERE DEALING WITH, WERE TO THE EFFECT THAT IN THE APPLICATION OF THE PROVISIONS OF THIS AGREEMENT IN ONE OF ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 14 OF 24 THE TERRITORIES ANY TERM NOT OTHERWISE DEFINED IN T HIS AGREEMENT SHALL, UNLESS THE CONTEXT OTHERWISE REQUI RES, HAVE THE MEANING WHICH IT HAS UNDER THE LAWS IN FORCE IN THAT TERRITORY (EMPHASIS, BY UNDERLINING, SUPPLIED BY US NOW) RELATING TO THE TAXES WHICH ARE THE SUBJECT MATTER OF THIS AGREEMENT , AND THESE WORDS WERE SLIGHTLY DIFFERENT THAN THE WORDS EMPLOYED IN THE INDO SINGAPORE TAX TREATY, TH AT WE ARE DEALING WITH, WHICH ARE AS FOLLOWS: AS REGARDS THE APPLICATION OF THE AGREEMENT BY A CONTRACTING STATE , ANY TERM NOT DEFINED THEREIN SHALL, UNLESS THE CONTEXT OTHERWISE REQUIRES, HAVE, THE MEANING WHICH IT HAS UNDER THE LAW OF THAT STATE CONCERNING THE TAXES TO WHICH THE AGREEM ENT APPLIES . WHILE IN THE FORMER, THERE IS EMPHASIS ON LAWS IN FORCE , WHICH IS WHAT THEIR LORDSHIPS HAVE TAKEN VERY CA REFUL NOTE OF, IN THE LATTER IT SIMPLY REFERS TO MEANING WHICH IT HAS UNDER THE LAW OF THAT STATE WITHOUT MAKING ANY SPECIFIC REFERENCE TO THE LAWS IN FORCE OR THE LAWS AS THEY PREVAILED AT ANY OTHER POINT OF TIME. WE MAY ALSO ADD THAT TH EIR LORDSHIPS WERE DEALING WITH OLD GERMAN (I.E. INDIA- FEDERAL REPUBLIC OF GERMANY) TAX TREATY [(1960) 40 ITR (ST) 21] IN WHICH THE EXPRESSION ROYALTY ITSELF WAS NOT DEFIN ED, AND THE QUESTION, THEREFORE, AROSE WHETHER THE DEFINITI ON OF ROYALTY, AS IT STOOD AT THE POINT OF TIME WHEN TA XES WERE LEVIED, COULD BE ADOPTED. 16. APART FROM THE FACT THAT ROYALTY IS A NEATLY DEFI NED EXPRESSION IN THE CURRENT INDO SINGAPORE TAX TREATY THAT WE ARE CONCERNED WITH, THE EXPRESSION LAWS IN FORCE, WHICH WAS SUBJECT MATTER OF FOCUS OF JUDICIAL ANALYSIS IN THE SAID CASE, DOES NOT FIND PLACE IN THE TREATY BEFORE US. THAT IS, HOWEVER, NOT REALLY TRUE OF ALL THE TAX TREATIES CU RRENTLY IN FORCE. THERE ARE TAX TREATIES WHICH STILL USE THE S AME EXPRESSION. OUR ATTENTION WAS, FOR EXAMPLE, INVITED TO INDIA AUSTRALIA DOUBLE TAXATION AVOIDANCE AGREEMENT [(199 2) 194 ITR (STATUTE) 91; INDO AUSTRALIAN TAX TREATY, IN SHORT] WHICH ALSO SPECIFICALLY PROVIDE THAT THE ASSIGNMENT OF DO MESTIC LAW MEANING TO AN UNDEFINED TREATY TERM IS AN AMBULATOR Y EXERCISE INASMUCH AS ARTICLE 3(2) THEREIN SPECIFICALLY PROVI DES THAT (I)N THE APPLICATION OF THIS AGREEMENT BY A CONTRAC TING STATE, ANY TERM NOT DEFINED IN THIS AGREEMENT SHALL , UNLESS THE CONTEXT OTHERWISE REQUIRES, HAVE THE MEANING WH ICH IT HAS UNDER THE LAWS OF THAT STATE FROM TIME TO TIME IN FORCE (EMPHASIS, BY UNDERLINING, SUPPLIED BY US) RELATING TO THE TAXES TO WHICH THIS AGREEMENT APPLIES . WE ARE NOT REALLY CONCERNED WITH THIS TAX TREATY AT PRESENT AND WE MU ST NOT, THEREFORE, GET INTO THE ACADEMIC DELIGHTS OF TAKING A CALL ON WHAT THE LEGAL POSITION WILL BE IN SUCH A CASE, IN CASE ONE IS TO PROCEED ON THE BASIS THAT THE EXPRESSION PRO CESS IS A TREATY TERM AND THE ARTICLE 3(2) CAN BE INVOKED IN RESPECT OF THE SAME. 17. SO FAR AS OUR PURPOSES ARE CONCERNED, IT IS SUFFICI ENT ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 15 OF 24 TO TAKE NOTE OF THE FACT THAT THE PROVISIONS OF ART ICLE 3(2) OF INDO SINGAPOREAN TAX TREATY ARE DIFFERENTLY WORD ED VIS-- VIS THE OLD INDO GERMAN TAX TREATY THAT HONBLE JURISDICTIONAL HIGH COURT WERE DEALING WITH IN SIEMENS AKTIONGESELLSCHAFTS CASE (SUPRA) AND THE CRUCIAL WORDS LAWS IN FORCE O N WHICH SO MUCH EMPHASIS WAS PLACED IN JUDICIAL ANALYSIS BY HONBLE JURISDICTIONAL HIGH COURT DO NO T FIND PLACE IN THIS TREATY. STRICTLY SPEAKING, THEREFORE, THE JUDICIAL SANCTION FOR THE THEORY OF AMBULATORY INTERPRETATION, FOR THE PURPOSE OF ARTICLE 3(2), DO ES NOT, THEREFORE, NECESSARILY EXTEND TO INDO SINGAPOREAN T AX TREATY THAT WE ARE CONCERNED WITH. 18. OF COURSE, EVEN WITHOUT THE WORDS MEANING WHICH IT HAS UNDER THE LAWS OF THAT STATE FROM TIME TO TIME IN F ORCE, ONE COULD STILL JUSTIFY THE AMBULATORY INTERPRETATION I N THE NORMAL COURSE OF INTERPRETATION- THOUGH WITHOUT THE BINDING FORCE OF JUDICIAL PRECEDENTS, BUT THEN, FOR THE REA SONS WE WILL SET OUT NOW, THERE IS A STRONG CONCEPTUAL BASI S FOR NOT ADOPTING THE AMBULATORY INTERPRETATION ON PECULIAR FACTS OF THIS CASE. 19. WHILE IT IS INDEED TRUE, AS HELD BY HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SIEMENS AKTIONGESELLSCHAFTS, THAT THE RULE OF REFERENTIAL INCORPORATION OR INCORPORATION CANNOT BE APPLIED WH EN WE ARE DEALING WITH A TREATY (DTAA) BETWEEN TWO SOVEREIGN NATIONS BECAUSE IT IS OPEN TO A SOVEREIGN LEGISLATURE TO AMEND ITS LAWS , THEIR LORDSHIPS HAVE PUT IN A WORD OF CAUTION BY SUGGESTING AN ELEMENT OF REASONABLENESS IN CONSTR UING THE TREATY SUPERIORITY VIS--VIS THE DOMESTIC LAW BY OB SERVING THAT A DTAA ENTERED INTO BY THE GOVERNMENT IN EXERCISE O F THE POWERS CONFERRED BY SECTION 10(1) [SIC- SECTION 90(1)] WHILE CONSIDERING SECTION 10(2) [SIC- SECTION 90(2)] HAS TO BE REASONABLY CONSTRUED [EMPHASIS, BY UNDERLINING, SUPPLIED BY US NOW]. IN THE SIEMENS DECISION (SUPRA) ITSEL F, WHILE QUOTING, WITH APPROVAL, HONBLE SUPREME COURT OF CA NADAS DECISION IN THE CASE OF HER MAJESTY THE QUEEN V. MELFORD DEVELOPMENTS INC. 82 DTC 6281 , THEIR LORDSHIPS HAD ALSO OBSERVED THAT THE RATIO OF THAT JUDGMENT, IN OUR OPINION, WOULD MEAN THAT BY AN UNILATERAL AMENDMENT IT IS NO T POSSIBLE FOR ONE NATION WHICH IS PARTY TO AN AGREEMENT TO TA X INCOME WHICH OTHERWISE WAS NOT SUBJECT TO TAX . QUITE CLEARLY, THEREFORE, WHATEVER BE THE APPROACH ADOPTED, FOR TH E PURPOSE OF ARTICLE 3(2) I.E. STATIC OR AMBULATORY, A UNILAT ERAL TREATY OVERRIDE, HOWSOEVER SUBTLE, IS NOT REALLY PE RMISSIBLE. 20. IT IS IMPORTANT TO BEAR IN MIND THE FACT THAT T HE INSERTION OF EXPLANATION 6 TO SECTION 9(1)(VII) WAS ADMITTEDLY TO NULLIFY CERTAIN JUDICIAL RULINGS, WHI CH GAVE AN INTERPRETATION, UNFAVOURABLE TO THE TAX ADMINISTRAT ION, TO THE EXPRESSION PROCESS. THE MEMORANDUM TO THE FIN ANCE BILL ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 16 OF 24 2012 SPECIFICALLY STATED THAT CONSIDERING THE CONFLICTING DECISIONS OF VARIOUS COURTS IN RESPECT OF INCOME IN NATURE OF ROYALTY AND TO RESTATE THE LEGISLATIVE INTENT , IT IS FURTHER PROPOSED TO AMEND ........... SECTION 9(1)(VI) TO CLARIFY THAT THE TERM PROCESS INCLUDES AND SHALL BE DEEMED TO HAVE ALWAYS INCLUDED TRANSMISSION BY SATELLITE (INCLUDING UP- LINKING, AMPLIFICATION, CONVERSION FOR DOWN-LINKING OF ANY SIGNAL), CABLE, OPTIC FIBRE OR BY ANY OTHER SIMILAR TECHNOLOGY, WHETHER OR NOT SUCH PROCESS IS SECRET . 21. LET US APPRECIATE THE NATURE OF DEVELOPMENT, F ROM THE TREATY PERSPECTIVE, IN CASE ONE IS TO HOLD THAT THE RETROSPECTIVE AMENDMENTS DEFINING THE EXPRESSION P ROCESS WOULD BE EQUALLY APPLICABLE FOR DEFINITION OF ROYA LTIES UNDER THE TAX TREATY. THUS VIEWED, SITUATION COULD BE LIKE THIS. THERE ARE JUDICIAL RULINGS WHICH DECIDE SOMET HING IN FAVOUR OF THE RESIDENCE JURISDICTION, AND THE SOURC E JURISDICTION IS NOT HAPPY WITH THAT OUTCOME, AND IT S A COINCIDENCE, COINCIDENCE IF IT IS, THAT THE SOURCE JURISDICTION CHANGES THE DOMESTIC LAW IN A WAY THAT , ONCE THAT AMENDED DOMESTIC LAW IS APPLIED IN THE CONTEXT OF A RTICLE 3(2), A DIFFERENT OUTCOME TO THE SAME TREATY PROVIS ION, WHICH FAVOURS THE SOURCE JURISDICTION, IS POSSIBLE. IN EF FECT, THUS, WHAT WAS NOT TAXABLE IN THE SOURCE JURISDICTION IN PRE DOMESTIC LAW AMENDMENT SITUATION BECOMES TAXABLE IN SOURCE JURISDICTION POST DOMESTIC LAW AMENDMENT. UNDOUBTED LY, LEGISLATION IS A SOVEREIGN FUNCTION AND IT IS INDEE D OPEN TO ANY JURISDICTION TO AMEND, EVEN RETROSPECTIVELY, IT S DOMESTIC LAWS TO BRING NEW INCOMES TO TAXABILITY IN THE SOUR CE JURISDICTION, BUT SO FAR AS THE SOURCE JURISDICTION TAXABILITY UNDER THE TREATY PROVISIONS IS CONCERNED, LEGAL AME NDMENTS SO AS TO INFLUENCE THE TAXABILITY EVEN UNDER THE TREAT Y SITUATION, BY THE SOURCE JURISDICTIONS UNILATERALLY , ARE IMPERMISSIBLE. THAT IS A CLASSIC CASE OF A SUBTLE U NILATERAL TREATY OVERRIDE. WHILE, IN INDIA, THE EXPRESSION T REATY OVERRIDE IS OFTEN LOOSELY USED FOR THE SITUATIONS WHERE THE PROVISIONS OF TAX TREATY PREVAILS OVER ANY INCONSIS TENT PROVISIONS OF DOMESTIC LAW, THIS APPROACH SEEMS TO BE AT VARIANCE WITH THE INTERNATIONAL PRACTICES WHEREIN C ONNOTATIONS OF TREATY OVERRIDE REFER TO A SITUATION IN WHICH DOMESTIC LEGISLATION OF A TREATY PARTNER JURISDICTION OVERRU LES THE PROVISIONS OF A SINGLE TREATY OR ALL TREATIES HITHE RTO HAVING HAD EFFECT IN THAT JURISDICTION. THAT WILL BE THE E ND RESULT OF A DOMESTIC LAW AMENDMENT OF AN UNDEFINED TREATY TERM, IN DEPARTURE FROM THE CURRENT POSITION, AND IMPORT SUC H AMENDED MEANING OF THAT TERM, UNDER ARTICLE 3(2), IN THE TR EATY SITUATIONS AS WELL. SUCH AN APPROACH, ON THE FIRST PRINCIPLES, IS UNSOUND INASMUCH AS IT IS WELL SETTLED IN LAW TH AT THE TREATY PARTNERS OUGHT TO OBSERVE THEIR TREATIES, IN CLUDING THEIR TAX TREATIES, IN GOOD FAITH. ARTICLE 26 OF VI ENNA CONVENTION ON LAW OF TREATIES PROVIDES THAT, PACTA SUNT SERVANDA: EVERY TREATY IN FORCE IS BINDING ON THE P ARTIES TO ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 17 OF 24 IT AND MUST BE PERFORMED BY THEM IN GOOD FAITH . WHAT IT IMPLIES IS THAT WHATEVER BE THE PROVISIONS OF THE T REATIES, THESE PROVISIONS ARE TO BE GIVEN EFFECT IN GOOD FAI TH. THEREFORE, NO MATTER HOW DESIRABLE OR EXPEDIENT IT MAY BE FROM THE PERSPECTIVE OF THE TAX ADMINISTRATION, WHEN A T AX JURISDICTION IS ALLOWED TO AMEND THE SETTLED POSITI ON WITH RESPECT TO A TREATY PROVISION, BY AN AMENDMENT IN T HE DOMESTIC LAW AND ADMITTEDLY TO NULLIFY THE JUDICIAL RULINGS, IT CANNOT BE TREATED AS PERFORMANCE OF TREATIES IN GOOD FAITH . THAT IS, IN EFFECT, A UNILATERAL TREATY OVER-RIDE WHICH IS C ONTRARY TO THE SCHEME OF ARTICLE 26 OF VIENNA CONVENTION ON LA W OF TREATIES. AS OBSERVED BY HONBLE DELHI HIGH COURT, IN THE CASE OF DIT VS NEW SKIES SATELLITE BV [(2016) 328 ITR 114 ( DEL)] , THE VIENNA CONVENTION ON THE LAW OF TREATIES, 1969 ('VCLT') IS UNIVERSALLY ACCEPTED AS AUTHORITATIVELY LAYING D OWN THE PRINCIPLES GOVERNING THE LAW OF TREATIES. EVEN THOUGH INDIA IS NOT A SIGNATORY TO THE VIENNA CONVENTION, HONBL E SUPREME COURT HAS REFERRED TO THE SAME TIME AND AGAIN AND, IN THE CASE OF RAM JETHMALANI VS UNION OF INDIA [(2011) 339 ITR 10 7 (SC)] , OBSERVED THAT IT CONTAINS MANY PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW AND THE RULES SET OUT THEREIN PROVIDES A BROAD GUIDELINE AS TO WHAT COULD BE AN APPROPRIATE MANNER OF INTERPRETING A TREATY IN THE INDIAN CONTEXT ALSO . IN OUR HUMBLE UNDERSTANDING, THEREFORE, THE ADDITIONAL TES T THAT IS REQUIRED TO BE PUT, WHILE ADOPTING THE AMBULATORY INTERPRETATION IN SUCH A SITUATION, IS WHETHER THE AMENDMENT IS DOMESTIC LAW ENDS UP UNSETTLING A CONCLUSION ARR IVED AT UNDER THE PRE DOMESTIC LAW AMENDMENT POSITION I.E. REVERSING THE JUDICIAL RULINGS IN FAVOUR OF THE RESIDENCE JUR ISDICTION, AND, IF THE ANSWER IS IN THE POSITIVE, THE AMBULATO RY INTERPRETATION IS TO BE DISCARDED BECAUSE THAT APPR OACH WOULD PATRONISE, AND LEGITIMISE, A UNILATERAL TREATY OVER RIDE, AND THE OUTCOME OF AMBULATORY INTERPRETATION IN SUCH A CASE WILL BE INCOMPATIBLE WITH THE FUNDAMENTAL PRINCIPLES OF TREATY INTERPRETATION UNDER THE VIENNA CONVENTION. THE APP ROACH IS JUSTIFIED ON THE FIRST PRINCIPLES ON THE GROUND THA T WHEN TWO APPROACHES ARE POSSIBLE FOR INCORPORATION OF DOMEST IC LAW PROVISIONS IN THE TAX TREATIES AND ONE OF THESE APP ROACHES IS COMPATIBLE WITH ARTICLE 26 OF THE VCLT WHILE THE OT HER IS INCOMPATIBLE WITH THE SAME, THE APPROACH COMPATIBLE WITH THE VCLT PROVISIONS IS TO BE ADOPTED. 22. IN VIEW OF THESE DISCUSSIONS, AND BEARING IN MI ND ENTIRETY OF THE CASE, WE FIND NO LEGALLY SUSTAINABL E MERITS IN THE GRIEVANCES RAISED BEFORE US. THE ARGUMENTS RAIS ED BEFORE US DO NOT LEAD US TO A DIFFERENT CONCLUSION EITHER. CONCURRING WITH THE COORDINATE BENCH DECISIONS, THEREFORE, WE APPROVE THE CONCLUSIONS ARRIVED AT BY THE LEARNED CIT(A) AND DE CLINE TO INTERFERE IN THE MATTER. AS WE HOLD SO, WE MAY ADD THAT THESE OBSERVATIONS REGARDING AMBULATORY OR DYNAMIC APPROA CH BEING INAPPROPRIATE IN THE CONTEXT OF ARTICLE 3(2) IS CON FINED TO THE PECULIAR FACTS DISCUSSED ABOVE, AND, ARE NOT, T HEREFORE, ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 18 OF 24 OF GENERAL APPLICATION. 23. GROUND NOS. 1 TO 4, AS COMMON TO ALL THE APPEA LS, ARE, THEREFORE, DISMISSED. 5. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE CO-ORDINATE BENCH. RESPECT FULLY FOLLOWING THE SAME, WE APPROVE THE CONCLUSIONS ARRIVED AT BY THE LD. CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 6. GROUND NOS. 1, 2, 3, & 4 ARE THUS DISMISSED. 7. IN GROUND NO. 5, THE ASSESSEE HAS RAISED THE FOL LOWING GRIEVANCE: 5. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, LD. CIT(A) HAS ERRED IN HOLDING THAT THE PA YMENTS MADE BY ASSESSEE TO RJIPL SINGAPORE FOR PROVIDING OPERATIONS AND MAINTENANCE (O&M) SERVICES IS NOT IN THE NATURE OF FEES FOR TECHNICAL SERVICES UNDER SECTION 9(1)(VII) OF THE ACT READ WITH ARTICLE 12 OF THE IN DIA- SINGAPORE DTAA? 8. WE FIND THAT THE GRIEVANCE SO RAISED IS EXACTLY THE SAME, AND ARISE OUT OF THE SAME SET OF FACTS, AS WERE BEF ORE A CO- ORDINATE BENCH IN ITA NOS. 6331 TO 6334/MUM/2018 WHICH WERE DISPOSED OF VIDE ORDER DATED 15 TH NOVEMBER, 2019. 9. WE FURTHER FIND THAT THE ABOVE ISSUE IS SQUARELY COVERED IN ASSESSEES OWN CASE, VIDE THE CO-ORDINATE BENCH ORD ER DATED 15 TH NOVEMBER, 2019, WHEREIN THE CO-ORDINATE BENCH HAS, SPEAKING THROUGH ONE OF US (I.E., THE VICE PRESIDENT), INTER ALIA , OBSERVED AS FOLLOWS: 25. AS FAR AS THIS GRIEVANCE OF THE APPELLANT ASSES SING OFFICER IS CONCERNED, IT IS SUFFICIENT TO TAKE NOTE OF THE FACT THAT THE ASSESSEE TAX MADE PAYMENTS FOR OPERAT IONS AND MAINTENANCE SERVICES IN RESPECT OF BANDWIDTH SERVIC ES INFRASTRUCTURE, SUCH AS CABLE LANDING STATIONS AND EQUIPMENT USED TO AVAIL THE BANDWIDTH SERVICES. THESE PAYMENT S ARE MADE BY THE ASSESSEE TO ITS SINGAPORE AFFILIATE RJ-S. TH E SHORT CASE OF THE ASSESSEE IS THAT UNDER INDO SINGAPORE T AX TREATY, ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 19 OF 24 AN AMOUNT PAID AS FEES FOR TECHNICAL SERVICES CAN B E TAXED IN THE SOURCE JURISDICTION ONLY WHEN IT SATISFIES THE MAKE AVAILABLE CONDITION I.E. WHEN THE RECIPIENT OF SER VICES WAS ENABLED TO APPLY TECHNOLOGY CONTAINED THEREIN, AND THAT SINCE ITS A CASE OF REPAIRS AND MAINTENANCE SIMPLI CTOR, THERE CANNOT BE ANY OCCASION OF TRANSFER OF TECHNOL OGY IN THE COURSE OF RENDITION OF THESE MAINTENANCE SERVICES. LEARNED CIT(A) HAS UPHELD THIS PLEA, AND OBSERVED AS FOLLOW S: B) NON-TAXABILITY OF PAYMENTS FOR O&M SERVICES THE O&M SERVICES INCLUDES ROUTINE AND REGULAR UPKEE P OF THE INFRASTRUCTURE SUCH AS MAINTENANCE OF THE CABLE LANDING STATION, EQUIPMENT USED BY RJIPL TO PROVIDE THE BANDWIDTH SERVICES. THESE KIND OF ROUTINE O&M IS REQUIRED TO ENSURE SMOOTH AND UNINTERRUPTED PROVISI ON OF THE BANDWIDTH SERVICES BY RJIPL TO THE APPELLANT . IN NOTE II TO SL. NO.L ('BANDWIDTH SERVICES REQUIREMENTS, ACTIVATION TIMELINES AND PAYMENT OBLIGATIONS) IN SCHEDULE I OF THE AGREEMENT, IT IS MENTIONED THAT: 'IT IS HEREBY CLARIFIED THAT SERVICE CHARGES ARE REMUNERATION FOR PROVISION OF BANDWIDTH SERVICES BY RJIPL. THE OBLIGATION AND LIABILITY FOR OPERATION AND MAINTENANCE IS THAT OF RJIPL.' THE O&M SERVICES BEING ROUTINE SERVICES, THE PAYMEN T MADE FOR THE SAME WILL NOT CONSTITUTE FTS AS PER EXPLANATION 2 TO SECTION 9(L)(VII) OF THE ACT. I ALSO AGREE WITH THE APPELLANT'S CONTENTION THAT T HE PAYMENTS / CREDITS UNDER THE AGREEMENT BY THE APPEL LANT TO RJIPL FOR THE O&M SERVICES ALSO CANNOT BE REGARD ED AS FTS UNDER ARTICLE 12 OF THE INDIA - SINGAPORE DT AA SINCE THE O&M SERVICES DO NOT MAKE AVAILABLE TECHNI CAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW OR PROCESSES , WHICH ENABLES THE APPELLANT TO APPLY THE TECHNOLOGY CONTAINED THEREIN. ARTICLE 12(4) OF THE INDIA-SINGAPORE DTAA DEFINES F EES FOR TECHNICAL SERVICES AS: 'THE TERM 'FEES FOR TECHNICAL SERVICES' AS USED IN THIS ARTICLE MEANS PAYMENTS OF ANY KIND TO ANY PERSON IN CONSIDERATION FOR SERVICES OF A MANAGERIAL, TECHNIC AL OR CONSULTANCY NATURE (INCLUDING THE PROVISION OF S UCH SERVICES OF TECHNICAL OR OTHER PERSONNEL) IF SUCH SERVICES: A) ..... (B) MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW, OR PROCESSES, WHICH ENABLES THE PE RSON ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 20 OF 24 ACQUIRING THE SERVICES TO APPLY THE TECHNOLOGY CONTAINED THEREIN.' (C) ' IT WOULD BE WORTHWHILE 10 REFER TO THE JURISDICTIONAL TRIBUNAL DECISION IN THE CASE OF EXXONMOBIL COMPANY INDIA (P.) LTD VS. ACIT [20181 ( 92 TAXMANN.COM 5) WHEREIN IT HAS HELD THAT THE EXPRESSION 'MAKE AVAILABLE' WHICH ALSO APPEARS IN ARTICLE 12(41(B) OF THE INDIA-US TAX TREATY WOULD MEAN THE RECIPIENT OF SUCH SERVICE IS ABLE TO APPLY OR MAKE USE OF THE TECHNICAL KNOWLEDGE, KNOWHOW. ETC.. BY HIMSELF IN HIS BUSINESS OR FOR HIS OWN BENEFIT AND WITHOUT RECOURS E TO THE SERVICE PROVIDER IN FUTURE AND FOR THIS PURPOSE A TRANSACTION OF THE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILLS, ETC.. FROM THE SERVICE PROVIDER TO THE SERV ICE RECIPIENT IS NECESSARY. SOME SORT OF DURABILITY OR PERMANENCY OF THE RESULT OF THE RENDERING OF SERVIC ES IS ENVISAGED WHICH WILL REMAIN AT THE DISPOSAL OF THE SERVICE RECIPIENT. IN OTHER WORDS, THE TECHNICAL KNOWLEDGE EXPERIENCE, SKILL, ETC.. MUST REMAIN WITH THE SERVICE RECIPIENT EVEN AFTER THE RENDERING OF THE SERVICES HAS COME TO AN END. IN CONTRAST TO ARTICLE - 12(4)(B) OF THE INDIA-U.S. TAX TREATY, ARTICLE-12(4 )(B) OF INDIA-SINGAPORE TAX TREATY HAS MADE IT MORE SPECIFIC BY PROVIDING THAT TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOWHOW OR PROCESS, WOULD NOT AMOUNT TO FEES FOR TECHNICAL SERVICE UNLESS IT ENABLES THE PERSON ACQUIRING THE SERVICE TO APPLY THE TECHNOLOGY THERE IN. I ALSO AGREE WITH ALL THE OTHER DECISIONS RELIED ON BY THE APPELLANT WHICH EXPLAINS THE CONCEPT OF 'MAKE AVAILABLE'. FURTHER, I ALSO AGREE WITH THE BELOW DECISIONS RELI ED ON BY THE APPELLANT, WHEREIN THE COURTS HAVE HELD T HAT REPAIRS AND MAINTENANCE SERVICES DO NOT MAKE AVAILA BLE TECHNICAL KNOWLEDGE, SKILLS ETC AND THEREFORE ARE N OT FTS UNDER THE DTAA: DCIT V VSNL BROAD BAND LTD [2013] 38 TAXMANN.COM 28 7 (MUMBAI ITAT) SANDVIK AUSTRALIA PTY. LTD. [2013] 31 TAXMANN.COM 2 56 (PUNE ITAT) ACIT V M/S HCL COMNET LTD (ITA NO. 321/DEI/2012) (DELHI ITAT) SOLAR TURBINES INTERNATIONAL COMPANY, IN RE [2012] 21 TAXMANN.COM 548 (AAR) ADIT V ROLLS ROYCE INDUSTRIAL POWER (INDIA) LTD [2013] 33 TAXMANN.COM 423 (DELHI ITAT) NO TECHNOLOGY IS MADE AVAILABLE BY RJIPL TO THE APPELLANT IN THE COURSE OF PROVIDING THE O&M SERVIC ES. AS MENTIONED IN THE AGREEMENT, THE OBLIGATION AND ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 21 OF 24 LIABILITY FOR OPERATION AND MAINTENANCE IS THAT OF RJIPL. THE APPELLANT IS ONLY INTERESTED IN AVAILING THE BANDWIDTH SERVICES AND IS NOT CONCERNED OR OBLIGED IN ANY MANNER WITH THE INFRASTRUCTURE DEPLOYED BY RJIP L. THUS, IN VIEW OF THE FACTS OF THE CASE AND RELYING ON THE ABOVE DECISIONS, I AM OF THE VIEW THAT THE PROV ISION OF O&M SERVICES BY RJIPL TO THE APPELLANT CANNOT BE REGARDED AS FEES FOR TECHNICAL SERVICES UNDER THE I NDIE - SINGAPORE DTAA AS THERE IS NO TRANSFER OF TECHNIC AL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW, OR PROCESSE S FROM RJIPL TO THE APPELLANT. IN LIGHT OF THE ABOVE DISCUSSION. I HOLD THAT THE PAYMENTS MADE BY THE APPELLANT TO RJIPL FOR RENDITION OF O&M SERVICES WILL BE IN THE NATURE OF BUSINESS PROFITS AND CANNOT BE CLASSIFIED AS FEES FOR TECHNICAL SERVICES EITHER UNDER THE ACT OR THE INDIA- SINGAPORE DTAA. FURTHER, IN ABSENCE OF RJIPL'S BUSINESS CONNECTION OR A PE IN INDIA, THE BUSINESS PROFITS WILL NOT BE TAXABLE IN INDIA. 26. THE ASSESSING OFFICER IS AGGRIEVED OF THE RELI EF SO GRANTED BY THE CIT(A) AND IS IN APPEAL BEFORE US. 27. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED T HE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 28. WE FIND THAT THERE IS NO DISPUTE WITH THE FACT UAL POSITION THAT THE RJ-S DID NOT HAVE ANY PERMANENT ESTABLISHMENT IN INDIA, AND WITH THE LEGAL PRINCIPL E LAID DOWN IN THE APPLICABLE TAX TREATY THAT, IN THE ABSENCE O F THE PE OF RJ-S, ITS BUSINESS PROFITS COULD NOT BE TAXED IN IN DIA. THE TAXABILITY UNDER THE SOURCE STATE UNDER ARTICLE 7 O F THE APPLICABLE TAX TREATY, THEREFORE, CLEARLY FAILS. WE FURTHER FIND THAT SO FAR AS TAXABILITY UNDER ARTICLE 12, I. E. WITH RESPECT TO 'ROYALTIES AND FEES FOR TECHNICAL SERVIC ES' IS CONCERNED, WE FIND THAT ARTICLE 12(4) PROVIDES THAT , 'THE TERM 'FEES FOR TECHNICAL SERVICES' AS USED IN THIS ARTIC LE MEANS PAYMENTS OF ANY KIND TO ANY PERSON IN CONSIDERATION FOR SERVICES OF A MANAGERIAL, TECHNICAL OR CONSULTANCY NATURE (INCLUDING THE PROVISION OF SUCH SERVICES THROUGH T ECHNICAL OR OTHER PERSONNEL) IF SUCH SERVICES: (A) ARE ANCILLARY AND SUBSIDIARY TO THE APPLICATI ON OR ENJOYMENT OF THE RIGHT, PROPERTY OR INFORMATION FOR WHICH A PAYMENT DESCRIBED IN PARAGRAPH 3 IS RECEIVE D ; OR (B) MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIEN CE, SKILL, KNOW-HOW OR PROCESSES, WHICH ENABLES THE PER SON ACQUIRING THE SERVICES TO APPLY THE TECHNOLOGY CONT AINED THEREIN ; OR (C) CONSIST OF THE DEVELOPMENT AND TRA NSFER OF A TECHNICAL PLAN OR TECHNICAL DESIGN, BUT EXCLUD ES ANY SERVICE THAT DOES NOT ENABLE THE PERSON ACQUIRI NG THE SERVICE TO APPLY THE TECHNOLOGY CONTAINED THERE IN.' ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 22 OF 24 SO FAR AS 12(4)(A) IS CONCERNED, THAT COMES INTO PL AY ONLY WHEN THE SERVICES ARE INCIDENTAL TO ENJOYMENT OF RIGHT, PROPERTY OR INFORMATION HELD TO BE IN THE NA TURE OF ROYALTY. VIDE OUR DISCUSSIONS EARLIER IN THIS ORDER, WE HAVE ALREADY HELD THAT THE PAYMENTS MADE TO RJ-S FOR AVAILING BANDWIDTH SERVICES ARE NOT IN THE NATURE OF ROYALTY. ONCE THE TAXABILITY OF PAYMENT F OR THE MAIN SERVICES AS ROYALTY IS RULED OUT, ARTICL E 12(4)(A) CEASES TO BE APPLICABLE FOR THIS SHORT REA SON ALONE. AS REGARDS THE SCOPE OF ARTICLE 12(4)(B) IS CONCERNED, IT CAN INDEED BE INVOKED FOR THE PAYMENT S FOR FEES OF TECHNICAL SERVICES BUT, EVEN IT IS A CONDIT ION PRECEDENT THAT THE SERVICES SHOULD ENABLE THE PERSO N ACQUIRING THE SERVICES TO APPLY TECHNOLOGY CONTAINE D THEREIN, BUT THEN IT IS NOBODY'S CASE THAT SERVICES RENDERED BY RJ-S WERE SUCH THAT THE ASSESSEE WAS EN ABLED TO APPLY TECHNOLOGY CONTAINED THEREIN. THE SERVICES WERE SIMPLY MAINTENANCE SERVICES WHICH DID NOT INVOLVE A NY TRANSFER OF TECHNOLOGY. IN RESPONSE TO OUR SPECIFIC QUESTION, LEARNED DR COULD NOT ENLIGHTEN US ABOUT W HAT WAS THE NATURE OF TECHNOLOGY TRANSFERRED UNDER THES E ARRANGEMENTS. THE AMOUNTS RECEIVED BY RJ-S COULD NO T, THEREFORE, BE TAXED AS 'FEES FOR TECHNICAL SERVICES EITHER. THERE ARE AT LEAST TWO NON-JURISDICTIONAL H IGH COURT DECISIONS, NAMELY HON'BLE DELHI HIGH COURT IN THE CASE OF DIT VS GUY CARPENTER & CO LTD [(2012) 346 ITR 504 (DEL)] AND HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS DE BEERS INDIA PVT LTD [(2012) 346 ITR 467 (KAR)] , IN FAVOUR OF THE ASSESSEE, AND THERE IS NO CONTRARY DECISION BY HON'BLE JURISDICTIONAL HIGH CO URT OR BY HON'BLE SUPREME COURT. WE BOW BEFORE HIGHER W ISDOM OF HON'BLE COURTS ABOVE AND HOLD THAT UNLESS THERE IS A TRANSFER OF TECHNOLOGY INVOLVED IN TECHNICAL SERVIC ES EXTENDED BY SINGAPORE COMPANY, THE 'MAKE AVAILABLE' CLAUSE IS NOT SATISFIED AND, ACCORDINGLY, THE CONSIDERATION FOR SUCH SERVICES CANNOT BE TAXED UND ER ARTICLE 12(4)(B) OF INDIA SINGAPORE TAX TREATY. AS REGARDS THE TAXABILITY UNDER ARTICLE 12(4)(C), IT I S NOBODYS CASE THAT THERE IS ANY DEVELOPMENT AND TRA NSFER OF A TECHNICAL PLAN OR TECHNICAL DESIGN, AND, THERE FORE, THIS PROVISION DOES NO COME INTO PLAY EITHER. ONCE WE COME TO THE CONCLUSION THAT THE PAYMENT FOR THESE SERVICES IS NOT TAXABLE AS FEES FOR TECHNICAL SERVI CES UNDER ARTICLE 12(4), IT IS IMMATERIAL WHETHER IT CO ULD BE TAXABLE UNDER SECTION 9(1)(VII) FOR THE SIMPLE R EASON THAT THIS BEING A TREATY SITUATION, THE PROVISIONS OF THE INCOME TAX ACT, 1961, COULD COME INTO PLAY ONLY WHEN FAVOURABLE TO THE ASSESSEE. 29. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, WE APPROVE THE CONCLUSIO NS ARRIVED AT BY THE LEARNED CIT(A) ON THIS ISSUE AS W ELL. WE, ITA NO.5780/MUM/2018 ASSESSMENT YEAR: 2018-19 ACIT VS. RELIANCE JIO INFOCOMM LTD. PAGE 23 OF 24 THEREFORE, CONFIRM THE STAND OF THE LEARNED CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 30. GROUND NO. 5, AS COMMON TO ALL THE APPEALS, IS ALSO THUS DISMISSED. 9. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE CO-ORDINATE BENCH. RESPECT FULLY FOLLOWING THE SAME, WE APPROVE THE CONCLUSIONS ARRIVED AT BY THE LD. CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 10. GROUND NO. 5 IS THUS ALSO DISMISSED. 11. IN THE RESULT, THE APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 25 TH DAY OF NOVEMBER, 2019 SD/- SD/- PAWAN SINGH PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) MUMBAI, DATED THE 25 TH DAY OF NOVEMBER, 2019 COPIES TO: (1) THE APPLICANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI