IMG MEDIA LTD, MUMBAI V. DCIT (IT) 2(1)(2), MUMBAI

ITA 7146/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0989 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Assessment Year: 2014-2015
• Appeal Filed On: 18-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ALIASGER RAMPURWALA
• Keywords: Business income; Double taxation relief; Permanent establishment
• Section: 40(a)(ia)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH L, MUMBAI BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO.7146/M/2017 ASSESSMENT YEAR: 2014-15 M/S. IMG MEDIA LTD., 608, WESTERN EXPRESS HIGHWAY SERVICE ROAD, BANDRA (EAST), MUMBAI 400 051 PAN: AACC1481L VS. DCIT (IT) 2(1)(2), ROOM NO.1612, 17 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI - 400021 (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI ALIASGER RAMPURWALA, A.R. REVENUE BY : SHRI SAMUEL DARSE, D.R. DATE OF HEARING : 04.09.2018 DATE OF PRONOUNCEMENT : 28.11.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 22.09.2017 OF THE COMMISSIO NER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEAR 2014-15. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE & IN LAW, THE LD. DEPUTY COMMISSIONER OF INCOME TAX ('LD. AO') ERRED IN FOLL OWING THE DIRECTIONS OF THE LD. DISPUTE RESOLUTION PANEL ('DRP') AND ASSESSING THE INCOME OF THE APPELLANT AT RS. 31,78,95,046 INSTEAD OF RS. 2,42,54,380. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE LD. DRP ERRED IN NOT FOLLOWING ITS EARLIER YEAR'S ORDER FOR ASSES SMENT YEAR 2009-10 AND 2011-12. 3. ROYALTY THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE & I N LAW; ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 2 3.1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW, THE LD DRP / LD. AO ERRED IN CONCLUDING THAT THE PRODUCTION WORK UNDERT AKEN BY THE APPELLANT QUALIFY' AS 'ROYALTY' UNDER THE PROVISIONS OF SECTION 9(I)(V I) OF THE ACT AS WELL AS ARTICLE 13 OF THE DTAA. 3.2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE & IN LAW, THE LD DRP / LD. AO, ERRED IN NOT APPRECIATING THAT THE ISSUE UNDER CONS IDERATION HAS AUTHORITATIVELY BEEN DECIDED BY THE ITAT, MUMBAI IN FAVOUR OF THE A SSESSEE IN AY 2009-10 AND AY 2010-11 OBSERVING THAT THE PRODUCTION WORK UNDERTAK EN IS A LIVE COVERAGE OF EVENT AND HENCE THE INCOME EARNED THEREFROM WOULD NOT QUA LIFY AS 'ROYALTY' UNDER THE PROVISIONS OF THE ACT AND THE DTAA. 3.3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE & IN LAW, THE LD DRP / LD. AO ERRED IN ALLEGING THAT THE APPELLANT RECEIVED CONSI DERATION FROM BCC1 FOR ALLOWING IT TO USE COPYRIGHT IN ITS SCIENTIFIC WORK, BEING THE FEED, WHICH WOULD QUALIFY AS 'ROYALTY' BOTH UNDER THE PROVISIONS OF THE ACT AND THE INDIA- UK DTAA. 4. FEES FOR TECHNICAL SERVICES 4.1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE & IN LAW, THE LD DRP/ LD. AO HAS ERRED IN CHARACTERISING THE SERVICES PROVIDED B Y THE ASSESSEE AS 'FEE FOR TECHNICAL SERVICES'' (FFS) UNDER THE PROVISIONS OF SECTION 9(I)(VII) OF THE ACT AS WELL AS ARTICLE 13 OF DTAA. 4.2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD DRP/ LD. AO HAS ERRED IN IGNORING THAT THE ACTIVITY OF LIVE AUD IO AND VIDEO COVERAGE OF MATCHES FOR IPL 2013 EVENT CONSTITUTE PRODUCTION OF PROGRAM MES AND FALLS UNDER THE DEFINITION OF 'WORK' PROVIDED UNDER EXPLANATION (IV ) TO SECTION 1940 OF THE ACT AND HENCE THE SAME WOULD NOT QUALIFY AS 'SERVICE' AND C ONSEQUENTLY WILL NOT BE TAXABLE AS 'FTS' UNDER SECTION 9(I)(VII) OF THE ACT. 4.3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD DRP/ LD. AO HAS ERRED IN CONCLUDING THAT THE SERVICES RENDERED BY THE ASSESSEE DO NOT MAKE AVAILABLE ANY TECHNICAL KNOWLEDGE, EXPERIENCE, SKIL L, KNOW-HOW ETC. AND IN DOING SO, HAS CLEARLY IGNORED THE TRUE NATURE OF ACTIVITIES C ARRIED OUT BY THE ASSESSEE. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A CO MPANY INCORPORATED IN UNITED KINGDOM (UK) AND IS A RESIDE NT OF UK. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MULTIMED IA COVERAGE OF SPORTS EVENTS, INCLUDING CRICKET. DURING THE YE AR UNDER CONSIDERATION, THE ASSESSEE ENTERED INTO AN AGREEME NT DATED 20.03.2014 READ TOGETHER WITH THE ADDENDUM TO THE P RODUCTION AGREEMENT WITH THE BCCI FOR THE PRODUCTION OF LIVE AUDIO AND VIDEO OF THE MATCHES FOR INDIA PREMIER LEAGUE (IPL) 2013 EVENT ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 3 WHICH WAS CONDUCTED IN INDIA. DURING THE YEAR THE PHYSICAL PRESENCE OF THE PERSONNEL OF THE COMPANY IN INDIA H AS EXCEEDED THE THRESHOLD LIMIT OF 90 DAYS IN 12 MONTHS PERIOD AND HENCE A PE OF THE COMPANY IS CONSTITUTED IN INDIA UNDER ART ICLE 5(2)(K) OF THE INDIA-UK DTAA. THE RECEIPT OF INCOME FROM BCCI HAS BEEN OFFERED AS BUSINESS INCOME OF THE ASSESSEES PE IN INDIA AND NOT AS ROYALTY. ACCORDING TO THE AO THE SAID PAYMENT I S A ROYALTY UNDER ARTICLE 13 OF DTAA AND EXPLANATION 2 TO SECTI ON 9(1)(V) OF THE ACT. 4. AT THE OUTSET, THE LD. COUNSEL OF THE ASSESSEE S UBMITTED THAT ISSUE INVOLVED IN THE PRESENT APPEAL IS WHETHE R THE RECEIPT OF INCOME FROM BCCI IS A NORMAL BUSINESS INCOME OF THE PE OR ROYALTY UNDER ARTICLE 13 OF DTAA AND EXPLANATION 2 TO SECTION 9(1)(V) OF THE ACT. THE SAID ISSUE HAS BEEN DECIDE D IN ASSESSEES OWN CASE IN EARLIER YEARS FROM 2009-10 TO 2012-13 W HEREIN THE CO-ORDINATE BENCHES OF THE TRIBUNAL HAVE DECIDED TH AT THE RECEIPT FROM BCCI IS NOT ROYALTY AND WAS RIGHTLY OF FERED AS BUSINESS INCOME IN THE HANDS OF ASSESSEES PE IN IN DIA. THE LD. A.R. THEREFORE SUBMITTED THAT THE DRP/AO HAS VIOLAT ED THE JUDICIAL DISCIPLINE IN NOT FOLLOWING THE ORDER OF T HE CO-ORDINATE BENCH OF THE TRIBUNAL AND THEREFORE THE APPEAL OF T HE ASSESSEE MAY KINDLY BE ALLOWED FOLLOWING THE SAID DECISION O F THE CO- ORDINATE BENCH OF THE TRIBUNAL. 5. THE LD. D.R, ON THE OTHER HAND, FAIRLY AGREED TO THE CONTENTIONS OF THE LD. A.R. THAT THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. HOWEVER, THE LD. D.R. BROU GHT TO THE NOTICE OF THE BENCH THAT APPEAL BEFORE THE HIGH COU RT IS PENDING AGAINST THE SAID ORDERS. ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 4 6. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE ISSUE OF RECEIPT OF INCOME FROM BCCI HAS BEEN HELD TO BE AS BUSINESS INCOME AND NOT ROYALTY BY THE CO- ORDINATE BENCH OF THE TRIBUNAL. THE OPERATIVE PART OF THE DECISION IN ITA NO.1783/M/2016 A.Y. 2011-12 IS REPR ODUCED AS UNDER: 3. IT WAS ALSO BROUGHT OUR NOTICE THAT THE TRIBUNA L, WHILE DECIDING THE APPEALS FOR AY.S 2010-11 AND 2009-10(ITA/1513/MUM/2014,DATE D 26/8/2015 AND ITA.S/1555 &1933/MUM/ 2014,DATED 26/02/2016) RESPEC TIVELY, HAD DELIBERATED UPON THE NATURE OF THE RECEIPT AT LENGTH AND HAD DECIDED THE IDENTICAL ISSUE. WE ARE REPRODUCING THE RELEVANT PORTION OF THE ORDER OF TH E TRIBUNAL FOR THE AY.2010- 11(SUPRA),WHEREIN THE FACTS HAVE ALSO BEEN NARRATED IN DETAILS. THE ORDER READS AS UNDER: 2.THE FACTS RELATING TO THE CASE ARE STATED IN BRIE F. THE ASSESSEE IS A COMPANY INCORPORATED IN UNITED KINGDOM (UK), HENCE A TAX RE SIDENT OF UK IN TERMS OF ARTICLE 4 OF THE INDIA-UK DOUBLE TAXATION AVOIDANCE AGREEMEN T (DTAA). THE ASSESSEE HAS FURNISHED A COPY OF TAX RE SIDENCY CERTIFICATE ALSO BEFORE THE AO IN SUPPORT OF THE SAME. THE ASSESSEE IS A WORLD LEADER IN THE FIELD OF MULTIMEDIA COVERAGE OF SPORTS EVENTS INCLU DING CRICKET. THE BCCI ENGAGED THE ASSESSEE FOR CAPTURING AND DELIVERING L IVE AUDIO AND VISUAL COVERAGE OF CRICKET MATCHES CONDUCTED UNDER THE BRA ND NAME IPL, 2008 AND ALSO IPL, 2009. THE TAXABILITY OF THE AMOUNT RECEIV ED BY THE ASSESSEE FROM BCCI IS THE ISSUE URGED BEFORE US. THE FACTS RELATI NG TO THE CASE ARE DESCRIBED AS UNDER BY LD CIT(A):- '3. IT HAS FURTHER BEEN SUBMITTED BY THE ASSESSEE T HAT THE ASSESSEE AND THE BOARD OF CONTROL FOR CRICKET IN INDIA ('BCCI') HAD ENTERED INTO AN AGREEMENT FOR CAPTURING AND DELIVERING OF THE LIVE AUDIO AND VISUAL COVERAGE OF THE FIRST INDIAN PREMIER LEAGUE 'IPL' 2008 EVENT WHICH WAS CONDUCTED IN INDIA DURING APRIL 18, 2008 - JUNE 01, 2008. THEREA FTER, THE ASSESSEE ALSO ENTERED INTO ANOTHER AGREEMENT DATED APRIL 15, 2009 WITH BCCI FOR THE LIVE AUDIO AND VISUAL COVERAGE OF THE MATCHES FOR THE SE COND IPL 2009 EVENT. THE ASSESSEE FURTHER SUBMITTED THAT FOR IPL 2008 EVENT, FEW PERSONNEL OF THE ASSESSEE HAD VISITED INDIA FOR THE LIVE COVERAGE OF THE MATCHES AND ALSO FOR THE PURPOSES OF RECCE/ INSPECTION ACTIVITIES BEFORE THE COMMENCEMENT OF THE EVENT IPL 2009 EVENT WAS INITIALLY SUPPOSED TO BE H ELD IN INDIA; ACCORDINGLY COUPLE OF PERSONNEL OF THE ASSESSEE WAS PRESENT IN FEBRUARY/MARCH 2009 FOR THE PURPOSE OF RECCE/ INSPECTION ACTIVITIES BEFORE THE COMMENCEMENT OF MATCHES OF IPL 2009. HOWEVER, THE SECOND IPL 2009 E VENT COINCIDED WITH INDIAN ELECTIONS AND THEREFORE, THE INDIAN GOVERNME NT REFUSED TO COMMIT SECURITY BY INDIAN PARAMILITARY FORCES. AS A RESULT , BCCI DECIDED TO HOST THE SECOND SEASON OF THE LEAGUE OUTSIDE INDIA. ON 24 MA RCH 2009, THE BCCI OFFICIALLY ANNOUNCED THAT THE SECOND SEASON OF THE IPL WILL BE HELD IN SOUTH AFRICA. IT WAS ALSO ARGUED BY THE ASSESSEE THAT SIN CE, THE CUMULATIVE PERIOD OF STAY OF THE ASSESSEE'S PERSONNEL IN INDIA EXCEEDED THE THRESHOLD LIMIT OF 90 DAYS IN THE '12 MONTH' PERIOD, BEGINNING FROM MARCH 22, 2008 TO MARCH 21, 2009, A SERVICE PERMANENT ESTABLISHMENT ('PE'') OF THE ASSESSEE WAS ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 5 CONSTITUTED IN INDIA UNDER ARTICLE 5(2)(K) OF 'INDIA-UK DTAA AND THE INCOME ATTRIBUTABLE WAS COMPUTED ON THE BASIS OF TRANSACTI ONAL NET MARGIN METHOD ('TNMM') PRESCRIBED UNDER THE INDIAN TRANSFER PRICI NG REGULATIONS. THE ASSESSEE FURTHER SUBMITTED THE SUMMARY OF RETURNED INCOME AND PROPOSED ADDITION MADE BY THE AO AS UNDER : XXXX ACCORDING TO THE ASSESSEE, IT HAS CARRIED OUT ITS B USINESS ACTIVITIES IN CONNECTION WITH THE CAPTURE AND DELIVERY OF LIVE AU DIO & VISUAL COVERAGE OF IPL 2008 AND IPL 2009 MATCHES. ACCORDINGLY, THE ASS ESSEE HAS CONTENDED THAT THERE EXISTED A SERVICE PE AND INCOME ATTRIBUT ABLE TO THE INDIAN OPERATIONS WAS COMPUTED UNDER TNMM METHOD. HOWEVER, THE ASSESSING OFFICER HAS TAKEN THE VIEW THAT THE AMOUNT RECEIVED BY THE ASSESSEE WAS IN THE NATURE OF 'FEE FOR TECHNICAL SERVICES' AND ALSO IN THE NATURE OF 'ROYALTY' AND ACCORDINGLY ASSESSED THE ENTIRE AMOUNT OF GROSS RECEIPTS. THE LD DISPUTE RESOLUTION PANEL (DRP) HELD THAT THE CONCEPT OF 'SE RVICE PE' DOES NOT HAVE APPLICATION, ONCE IT IS HELD THAT THE GROSS RECEIPT S ARE TAXABLE AS 'FEE FOR TECHNICAL SERVICES' OR AS 'ROYALTY'. HENCE THE LD D RP PROCEEDED TO EXAMINE THE NATURE OF AMOUNT RECEIVED BY THE ASSESSEE FROM BCCI. THE RELEVANT DISCUSSIONS MADE BY LD DRP IN ORDER TO HOLD THAT TH E AMOUNT RECEIVED BY THE ASSESSEE IS IN THE NATURE OF 'FEE FOR TECHNICAL SER VICES' ARE EXTRACTED BELOW:- XXXX 5.4.4 HENCE IT IS HELD THAT THESE SERVICES ARE NOTH ING BUT TECHNICAL SERVICES AS PER SECTION 9(I)(VII) OF THE ACT AS WELL AS ARTICLE 13 OF THE DTAA BETWEEN INDIA AND UK WHICH MAKES AVAILABLE TECHNICAL KNOWLE DGE TO THE PAYER. 4.WE HEARD THE PARTIES ON THIS ISSUE.ON A CAREFUL P ERUSAL OF THE FACTS BROUGHT OUT BY THE TAX AUTHORITIES, WE NOTICE THAT THE ASSESSEE PO SSESSES REQUIRED EXPERTISE IN LIVE AUDIO-VISUAL COVERAGE OF MATCHES (CALLED 'FEED') AN D HENCE, THE BCCI HAS ENGAGED THE ASSESSEE TO PRODUCE AND DELIVER LIVE AUDIO-VISU AL COVERAGE OF THE IPL-2008 & IPL-2009 CRICKET MATCHES CONDUCTED BY BCCI. ACCORDI NG TO THE AGREEMENT, THE ASSESSEE SHALL PRODUCE THE FEED AND DELIVER THE SAM E TO THE BROADCASTERS, WHO ARE CALLED LICENSEES. THUS, IT IS NOTICED THAT THE JOB OF THE ASSESSEE SHALL COME TO AN END, ONCE THE FEED IS PRODUCED AND DELIVERED TO THE LICE NSED BROADCASTERS IN THE FORM OF DIGITALIZED SIGNALS. AS PER THE AGREEMENT, THE BCCI SHALL SUPPLY THE EQUIPMENTS LIKE CAMERAS, MICROPHONES ETC. OF THE REQUIRED QUALITY T O THE ASSESSEE. 5.THE QUESTION THAT ARISES IS AS TO WHETHER SUCH KI ND OF PRODUCTION OF FEEDS WOULD RESULT IN PROVISION OF TECHNICAL SERVICES BY THE AS SESSEE TO BCCI IN TERMS OF INDO-UK DTAA?. ARTICLE 13(4)(C) OF THE DTAA DEFINES THE TERMS 'FEE FOR TECHNICAL S ERVICES' AND FOR THE SAKE OF CONVENIENCE, THE SAME IS EXTRAC TED BELOW: '4. FOR THE PURPOSE OF PARAGRAPH 2 OF THIS ARTICLE, AND SUBJECT TO PARAGRAPH 5 OF THE ARTICLE, THE TERMS 'FEES FOR TECHNICAL SERVI CES' MEANS PAYMENTS OF ANY KIND OF ANY PERSON IN CONSIDERATION FOR RENDERING O F ANY TECHNICAL OR CONSULTANCY SERVICES (INCLUDING THE PROVISION OF SE RVICES OF TECHNICAL OR OTHER PERSONNEL) WHICH : A) ARE ANCILLARY AND SUBSIDIARY TO THE APPLICATION OR ENJOYMENT OF THE RIGHT, PROPERTY OR INFORMATION FOR ' WHICH A PAYMENT DESCR IBED IN PARAGRAPH 3(A) OF THIS ARTICLE IS RECEIVED: OR ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 6 B) ARE ANCILLARY AND SUBSIDIARY TO THE ENJOYMENT OF THE PROPERTY FOR WHICH A PAYMENT DESCRIBED IN PARAGRAPH 3(B) OF THIS ARTICLE IS RECEIVED; OR C) MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL KNOW HOW OR PROCESSES OR CONSIST OF THE DEVELOPMENT AND TRANSFE R OF A TECHNICAL PLAN OR TECHNICAL DESIGN' XXXX 6.WE NOTICE THAT THE ARTICLE 13(4)(C) OF THE INDIA-UK DTAA ALSO USES THE EXPRESSION 'MAKE AVAILABLE'. THOUGH THE SAID EXPRESSION HAS NO T BEEN EXPLAINED IN THE CONTEXT OF INDIA-UK DTAA, IT IS THE PLEA OF THE ASSESSEE TH AT THE PRINCIPLE OR CONCEPT OF 'MAKE AVAILABLE EXPLAINED IN THE INDIA-US PROTOCOL SHOULD ALSO BE APPLIED IN RESPECT OF INDIA-UK TREATY ALSO. BEFORE US, THE REV ENUE COULD NOT SUBMIT ANY OTHER DECISION OR MATERIAL TO OPPOSE THE ABOVE SAID PLEA OF THE ASSESSEE. SINCE THE INDIA- UK DTAA AND ALSO INDIA-US DTAA USES THE SAME EXPRES SION, I.E., 'MAKE AVAILABLE' IN THE CONTEXT OF 'FEE FOR TECHNICAL SER VICES', WE ARE OF THE VIEW THAT THE PRINCIPLE OR CONCEPT OF 'MAKE AVAILABLE EXPLAINED IN THE CONTEXT OF INDIA US DTAA CAN BE IMPORTED TO UNDERSTAND THE PROVISIONS OF ARTICLE 13(4)(C) OF THE INDIA-UK DTAA ALSO. 7.NOW WE SHALL EXAMINE THE QUESTION ON THE BASIS OF DISCUSSIONS MADE IN THE EARLIER PARAGRAPHS. WE NOTICE THAT THE ASSESSEE PRODUCES TH E FEED (PROGRAM CONTENT) OF LIVE COVERAGE OF AUDIO-VIDEO VISUALS OF THE CRICKET MATC HES BY USING ITS TECHNICAL EXPERTISE. AFTER THAT IT DELIVERS THE FEED (PROGRAM CONTENT) IN THE FORM OF DIGITALIZED SIGNALS TO THE LICENSEES (BROADCASTERS). THERE SHOU LD NOT BE ANY DISPUTE THAT THE LICENSEES (BROADCASTERS) RECEIVE THE FEED ON BEHALF OF THE BCCI. WE NOTICE THAT WHAT IS DELIVERED BY THE ASSESSEE IS A 'FINAL PRODUCT IN THE FORM OF PROGRAM CONTENT' PRODUCED BY IT BY USING ITS TECHNICAL EXPERTISE, I. E., THE ASSESSEE DOES NOT DELIVER OR MAKE AVAILABLE ANY TECHNOLOGY/ KNOWHOW TO THE BCCI. THERE SHOULD NOT BE ANY DISPUTE THAT THE PRODUCTION OF 'PROGRAM CONTENT' BY USING TECHNICAL EXPERTISE IS ALTOGETHER DIFFERENT FROM THE PROVISION OF TECHNOLO GY ITSELF. IN THE FORMER CASE, THE RECIPIENT WOULD RECEIVE ONLY THE PRODUCT AND HE CAN USE THE PRODUCT ACCORDING TO HIS CONVENIENCE, WHERE AS IN THE LATER CASE, THE RECIPI ENT WOULD GET THE TECHNOLOGY/KNOWHOW AND HENCE HE WOULD BE ABLE TO US E THE TECHNOLOGY /KNOWHOW ON HIS OWN IN ORDER TO PRODUCE ANY OTHER PROGRAM CO NTENT OF SIMILAR NATURE. IN THE LATER CASE, THE TECHNOLOGY/KNOWHOW WOULD BE 'MADE A VAILABLE' TO THE RECIPIENT, IN WHICH CASE THE PAYMENT GIVEN WOULD FALL UNDER THE C ATEGORY OF 'FEE FOR TECHNICAL SERVICES'. HOWEVER, IN THE FORMER CASE, THERE IS NO QUESTION OF MAKING AVAILABLE OF ANY TECHNOLOGY/ KNOWHOW AND HENCE THE PAYMENT GIVEN WOULD BE IN THE NATURE OF PAYMENT MADE FOR PRODUCTION OF 'PROGRAM CONTENT OR LIVE FEED' AND NOT FOR SUPPLY OF TECHNOLOGY. 8.THE LD DRP HAS OBSERVED THAT THE AGREEMENT ENTERE D BETWEEN THE ASSESSEE AND BCCI PRESCRIBES THE QUALITY STANDARDS IN MINUTE DET AILS AND THE SAME RESULTS IN TOTAL EXCHANGE OF TECHNICAL PLANS AND DESIGNS BETWEEN THE ASSESSEE AND THE BROADCASTERS. IN OUR VIEW, THERE IS A FALLACY IN THE VIEW TAKEN B Y LD DRP. THE OBJECT OF THE PRODUCTION OF LIVE FEED IS TO OFFER QUALITY COVERAG E OF THE LIVE CRICKET MATCHES TO THE VIEWERS. THE ASSESSEES JOB IS RESTRICTED TO PRODUC TION OF LIVE COVERAGE AND THE JOB OF BROADCASTING 12 THE SAME IS UNDERTAKEN BY THE BCCI. THE BCCI, IN TURN, HAS GIVEN LICENSE TO CERTAIN COMPANIES (CALLED LICENSEES) AND THEY HAVE UNDERTAKEN THE JOB OF BROADCASTING THE LIVE COVERAGE OF CRICKET MATCHES O N BEHALF OF BCCI. SINCE THE ASSESSEE IS SUPPLYING THE LIVE COVERAGE IN THE FORM OF DIGITALIZED SIGNALS, IT HAS TO ENSURE THAT THE BROAD CASTERS ALSO DO HAVE THE COMP ATIBLE TECHNOLOGY AND EQUIPMENTS SO THAT THE LIVE COVERAGE CAN BE BROADCAST WITHOUT COMPROMISING THE QUALITY. THUS, IN OUR VIEW, THE TECHNICAL ASPECTS ARE SPECIFIED IN THE AGREEMENT IN ORDER TO ENSURE ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 7 THAT THE PROGRAM CONTENT IS BROADCAST AT THE SAME Q UALITY IN WHICH IT WAS PRODUCED. THE SAME WAS SOUGHT TO BE ACHIEVED BY SYNCHRONIZING THE QUALITY OF TECHNICAL EQUIPMENTS BETWEEN THE ASSESSEE AND THE BROADCASTER S (LICENSEES). SUCH KIND OF SYNCHRONIZATION OF TECHNOLOGY WOULD ENSURE SEAMLESS FUNCTION AND COMPLETE COORDINATION BETWEEN THE ASSESSEE AND THE BROADCAST ERS. THUS, THERE IS A DIFFERENCE BETWEEN THE TECHNOLOGY INVOLVED IN THE PRODUCTION O F LIVE COVERAGE FEED OF CRICKET MATCHES AND THE TECHNOLOGY REQUIRED TO BROADCAST TH E SAME IN THE REQUIRED QUALITY. HENCE, IN ORDER TO ENSURE AND MAINTAIN QUALITY OF L IVE COVERAGE FEED, IT BECOMES NECESSARY ON THE PART OF THE ASSESSEE TO SPECIFY OR OVERSEE THE TECHNOLOGY AVAILABLE WITH THE BROADCASTERS SO THAT THE SAME DOES NOT COM PROMISE ON THE QUALITY AND COMPATIBILITY. THE SPECIFICATION OF THE TECHNICAL R EQUIREMENTS DOES NOT MEAN THAT THE ASSESSEE HAS SUPPLIED THE TECHNOLOGY INVOLVED IN TH E PRODUCTION OF LIVE COVERAGE FEED TO THE BROAD CASTERS. IF THAT BE THE CASE, THE BROADCASTERS SHOULD BE IN A POSITION TO USE THE TECHNOLOGY IN ORDER TO PRODUCE THE LIVE FEED ON THEIR OWN. WE NOTICE THAT THE REVENUE HAS NOT ESTABLISHED THAT THE BROADCASTE RS (WHO ARE ACTING ON BEHALF OF THE BCCI) OR THE BCCI ITSELF HAS ACQUIRED THE TECHNICAL EXPERTISE FROM THE ASSESSEE WHICH WOULD ENABLE THEM TO PRODUCE THE LIVE COVERAG E FEEDS ON THEIR OWN AFTER THE CONCLUSION OF IPL 2008 AND IPL 2009 CRICKET MATCHES . IN THAT CASE THE ESSENTIAL CONDITION OF 'MAKE AVAILABLE' CLAUSE FAILS AND HENC E THE AMOUNT RECEIVED BY THE ASSESSEE CANNOT BE 13 CONSIDERED AS 'FEE FOR TECHNI CAL SERVICES' IN TERMS OF ARTICLE 13(4)(C) OF THE DTAA ENTERED BETWEEN INDIA AND UK. 9.THE LD DRP HAS OBSERVED THAT THE LIVE COVERAGE OF CRICKET MATCHES INVOLVE INSTANT AND CONTINUOUS PRODUCTION AND BROADCASTING OF LIVE MATCHES. THE EXISTING PROGRAM WOULD KEEP MERGING WITH THE NEW WORK. FURTHER, THE BROADCASTERS ARE ABLE TO SPLIT THE PROGRAM CONTENT IN ORDER TO INSERT ADVERTISEMEN TS. ALL THESE ASPECTS, IN OUR VIEW, WOULD NOT BRING THE PAYMENT UNDER THE CATEGORY OF ' FEE FOR TECHNICAL SERVICES'. IT ONLY SHOWS THE TECHNICAL EXPERTISE OF THE ASSESSEE TO PRODUCE A FLEXIBLE PROGRAM CONTENT TO GIVE ENHANCED QUALITY OF VIEWING THE LIV E MATCHES. 10.BEFORE US, THE LD D.R PLACED RELIANCE ON THE DEC ISION RENDERED BY THE DELHI BENCH OF TRIBUNAL IN THE CASE OF NIMBUS SPORT INTER NATIONAL PTE LTD (2012)(18 TAXMANN.COM 105), WHEREIN THE TRIBUNAL HAD HELD THA T THE SERVICES OR PRODUCTION AND GENERATION OF LIVE TELEVISION SIGNAL WERE IN THE NA TURE OF TECHNICAL SERVICES. THE LD A.R CONTENDED THAT THE DELHI TRIBUNAL DID NOT EXAMI NE THE PRINCIPLE OF 'MAKE AVAILABLE . WE NOTICE THAT THE CASE OF NIMBUS SPORT INTERNATI ONAL PTE LTD IS COVERED BY INDIA- SINGAPORE DTAA AND IT ALSO USES THE EXPRE SSION 'MAKE AVAILABLE' IN THE DEFINITION OF 'FEE FOR TECHNICAL SERVICES'. IN THE CASE OF NIMBUS SPORTS INTERNATIONAL (SUPRA), THE PRINCIPLE OR CONCEPT OF 'MAKE AVAILABL E HAS NOT BEEN EXAMINED BY THE TRIBUNAL. ACCORDINGLY, WE AGREE WITH THE CONTENTION S OF THE ASSESSEE THAT THE SAID DECISION IS DISTINGUISHABLE. 11.SINCE THE AMOUNT RECEIVED BY THE ASSESSEE IS HEL D TO BE NOT IN THE NATURE OF 'FEE FOR TECHNICAL SERVICES' AS PER THE DEFINITION OF ARTICLE 13(4)(C) OF THE INDIA-UK DTAA, IN OUR VIEW, THERE IS NO NECESSITY TO EXAMINE ABOUT ITS TAXABILITY U/S 9(1)(VII) OF THE INCOME TAX ACT, 1963. ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 8 12.THE AO/LD DRP HAVE ALSO EXPRESSED THE VIEW THAT THE PAYMENT RECEIVED BY THE ASSESSEE WOULD FALL UNDER THE CATEGORY OF 'ROYALTY' ALSO. THE RELEVANT OBSERVATIONS MADE BY LD DRP ARE EXTRACTED BELOW:- '5.5.ADDITIONALLY, WE FIND THAT THE SAID SERVICES W OULD ALSO BE IN THE NATURE OF ROYALTY AS PER THE PROVISIONS OF SECTION 9(I)(VI) OF THE ACT AND ARTICLE 13 OF THE DTAA BETWEEN INDIA AND UK. THE REASONS FOR T HE SAME ARE, AS UNDER: (1) ON A PERUSAL OF THE AGREEMENT, IT IS CLEAR THAT FOR DOING THIS WORK, THE ASSESSEE IS REQUIRED TO BRING IN EQUIPMENTS FOR CAP TURING THE LIVE FEED. THE SAME HAS BEEN GIVEN IN CLAUSE 1.3 OF THE AGREEMENT WHICH IS REPRODUCED AS UNDER: '1.3 IMG SHALL BE RESPONSIBLE FOR ENSURING T HAT EQUIPMENT THAT IT INTRODUCES INTO THE MATCH VENUES COMPLIES WITH INTE RNATIONAL STANDARDS OF HEALTH AND SAFETY, IT BEING ACKNOWLEDGED AND AGREED THAT IMG SHALL NOT BE RESPONSIBLE FOR THE COMPLIANCE OF THE MATCH VENUES AND THEIR INFRASTRUCTURE WITH SUCH INTERNATIONAL STANDARDS OF HEALTH AND SAF ETY' THIS MAKES IT CLEAR THAT THE ASSESSEE IS REQUIRED TO BRING AND USE SOME EQUIPMENT FOR RECORDING LIVE AUDIO-VISUAL FEED OF THE MATCHES. IN SCHEDULE 2 OF THE SAID AGREEMENT AS WELL, VARIOUS MINIMUM CAMERA AND EQUIPMENT SPECIFIC ATION HAS BEEN GIVEN. THE SAME IS ALSO REPRODUCED AS UNDER(III) MINIMUM C AMERA AND EQUIPMENT SPECIFICATION (1) THE FEED SHALL BE PRODUCED USING 29HD CAMERAS (OF WHICH 14 WILL BE MANNED) HD, VT & GRAPHICS EQUIPMENT ALON G WITH CRICKET SOUND PACKAGE. ALL OF THIS EQUIPMENT WILL BE SUPPLIED BY ZOOM (PLEASE NOTE SECTION (D)(II) BELOW)'. LIKEWISE, IN SCHEDULE 4 TO THIS AG REEMENT, THE DETAILS OF PRODUCTION BUDGET HAVE BEEN SPECIFIED. IN THIS BUDG ET ALSO, VARIOUS HEADS OF EXPENSES HAVE BEEN IDENTIFIED AND COSTS ASSIGNED. I N THIS ALSO, A LOT OF THESE RELATE TO USE OF EQUIPMENTS LIKE PRODUCTION EQUIPME NTS, MAINTENANCE OF EQUIPMENTS, SETTING UP OF A STUDIO IN INDIA, BROADC AST FROM OUTSIDE ETC. ALL THESE CLEARLY ESTABLISH THAT THE ASSESSEE WOULD BE USING EQUIPMENTS TO CARRY OUT THIS WORK WHICH IS NOTHING BUT EQUIPMENT ROYALT Y AS PER THE ACT AS WELL AS THE DTAA. 5.5.1 ON A PERUSAL OF THIS AGREEMENT, IT IS ALSO OBSERVED THAT THE ASSESSEE COMPANY IS THE WORLD LEADER IN THIS FI ELD AND HAS DEVELOPED COMMERCIAL AND SCIENTIFIC EXPERIENCE IN THE FIELD O F COMMERCIAL AND SCIENTIFIC EXPERIENCE. IT HAS ALSO DEVELOPED A 'PRO CESS' WHICH IS UNIQUE TO THIS COMPANY AND THE SAME PROCESS IS BEING USED FOR RENDERING THESE SERVICES. THIS IS ALSO BECAUSE OF THE FACT THE ASSESSEE HAS B EEN GIVEN THIS CONTRACT EVERY YEAR AS IT HAS A UNIQUE PROCESS FOR PRODUCING THE LIVE FEED OF MATCHES. IN THIS TYPE OF EVENTS THE MOST IMPORTANT PART THAT LEADS TO GENERATION OF REVENUE FOR BCCI FROM IPL EVENT IS THE SEAMLESS/UNI NTERRUPTED PRODUCTION AND BROADCASTING OF THE COMPLETE MATCH. DURING SUCH PRODUCTION PROCESS, A NEW WORK IS CREATED WITHIN A SPLIT OF FEW MACRO SEC ONDS AND THE EXISTING FOR KEEPS ON MERGING WITH THE NEW WORK BEING CREATED. T HE ACTIVITY WHICH LEADS GENERATION OF REVENUE IS THE COMPLETE WORK BEING TA KEN INTO CONSIDERATION AND THEREFORE IT WOULD BE INCORRECT TO STATE THAT T HE PAYMENTS RECEIVED BY ASSESSEE IS FOR THE LIVE WORK AND NOT FOR ANY WORK BEING IN EXISTENCE. ALSO, THE PRODUCTION WORK BEING UNDERTAKEN BY THE ASSESSE E IS SPECIALISED IN NATURE AND THE FINAL SIGNALS BEING DELIVERED BY THE ASSESS EE TANTAMOUNT TO USE OF PROCESS BY THE BCCI/ITS BROADCASTERS. THIS IS ALSO EVIDENCED WITH VARIOUS CLAUSES OF THE AGREEMENTS. THE RELEVANT CLAUSES ARE REPRODUCED AS UNDER: XXXX 5.5.2 IN VIEW OF THE ABOVE DISCUSSIONS, IT IS HELD THAT THE PAYMENTS WOULD BE TAXABLE AS 'ROYALTY' BOTH UNDER THE PROVISIONS OF SECTION 9(I)(VI) OF THE ACT AND ARTICLE 13 OF THE DTAA. THE JUDGMENTS RELATED UPON BY THE ASS ESSEE ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 9 HAVE NOT BEEN TAKEN THE ABOVE FACTS INTO CONSIDERAT ION AND HENCE THE BENEFIT OF THE SAME CANNOT BE GRANTED TO THE ASSESSEE.' 13.WE HAVE NOTICED EARLIER, THE ASSESSEE WAS ENGAGE D BY BCCI TO PRODUCE LIVE COVERAGE OF AUDIO AND VIDEO VISUALS OF CRICKET MATC HES. THE ASSESSEE SHALL PRODUCE THE PROGRAM CONTENT, WHICH IS BROADCAST THROUGH THE BROADCASTERS APPOINTED BY BCCI. THE JOB OF THE ASSESSEE ENDS UPON THE PRODUCT ION OF THE 'PROGRAM CONTENT'. ACCORDING TO THE ASSESSEE, THE PROGRAM CONTENT SHAL L BECOME THE PROPERTY OF THE BCCI. WE NOTICE THAT THE REVENUE HAS NOT BROUGHT AN Y MATERIAL ON RECORD TO SHOW THAT THE ASSESSEE HAS KEPT THE OWNERSHIP RIGHTS OVE R THE PROGRAM CONTENT. THE LD DRP HAS NOTICED THAT THE BCCI IS REQUIRED TO SUPPLY CERTAIN EQUIPMENTS AND HENCE THE LD DRP HAS HELD AS UNDER:- '...THE ASSESSEE WOULD BE USING EQUIPMENTS TO CARRY OUT THIS WORK WHICH IS NOTHING BUT EQUIPMENT ROYALTY AS PER THE A CT AS WELL AS THE DTAA.' WE ARE UNABLE TO UNDERSTAND THE RATIONALE BEHIND TH IS OBSERVATION. IF THE ASSESSEE WAS USING THE EQUIPMENTS BELONGING TO BCCI AND IF T HAT ACTIVITY IS EXAMINED IN ISOLATION, THEN THE ASSESSEE SHOULD BE PAYING MONEY TO BCCI FOR USING THE EQUIPMENTS. IN THE INSTANT CASE, THE ASSESSEE HAS R ECEIVED THE MONEY FOR PRODUCING LIVE COVERAGE OF CRICKET MATCHES. THE EQUIPMENTS RE QUIRED FOR THE SAID PURPOSE MAY BE BROUGHT BY THE ASSESSEE ITSELF OR IT MAY BE PROV IDED BY THE BCCI. UNDER COMMERCIAL TERMS, IF THE ASSESSEE WAS REQUIRED TO B RING THE EQUIPMENTS, THEN THE CONSIDERATION PAYABLE FOR THE PRODUCTION OF LIVE CO VERAGE OF CRICKET MATCHES SHOULD GO UP. THUS, IN OUR VIEW, IT WAS A SIMPLE CASE OF C OMMERCIAL AGREEMENT ENTERED BETWEEN THE PARTIES WITH REGARD TO THE MODALITIES T O BE FOLLOWED AND THE SAME IS NOT A DETERMINATIVE FACTOR TO DECIDE ABOUT THE NATURE OF PAYMENT RECEIVED BY THE ASSESSEE. 14.THE LD D.R.P. HAS FURTHER OBSERVED THAT THE ASSE SSEE HAS DEVELOPED COMMERCIAL AND SCIENTIFIC EXPERIENCE IN THE FIELD OF COMMERCIA L AND SCIENTIFIC EXPERIENCE. THE TERM 'ROYALTY' IS DEFINED AS UNDER IN THE INDIA UK DTAA:- 3. FOR THE PURPOSES OF THIS ARTICLE, THE TERM 'ROYA LTIES' MEANS: (A) PAYMENTS OF ANY KIND RECEIVED AS A CONSIDERATION FOR THE USE OF, OR THE RIGHT TO USE, ANY COPYRIGHT OF A LITERARY, ARTISTIC OR SCIENTIFIC WOR K, INCLUDING CINEMATOGRAPHY FILMS OR WORK ON FILMS, TAPE OR OTHER MEANS OF REPR ODUCTION FOR USE IN CONNECTION WITH RADIO OR TELEVISION BROADCASTING, A NY PATENT, TRADE MARK, DESIGN OR MODEL, PLAN, SECRET FORMULA OR PROCESS, O R FOR INFORMATION CONCERNING INDUSTRIAL, COMMERCIAL OR SCIENTIFIC EXP ERIENCE; AND (B) PAYMENTS OF ANY KIND RECEIVED AS CONSIDERATION FOR THE USE O F, OR THE RIGHT TO USE, ANY INDUSTRIAL, COMMERCIAL OR SCIENTIFIC EQUIPMENT, OTH ER THAN INCOME DERIVED BY AN ENTERPRISE OF A CONTRACTING STATE FROM THE OPERA TION OF SHIPS OR AIRCRAFT IN INTERNATIONAL TRAFFIC.' A CAREFUL PERUSAL OF THE DEFINITION OF 'ROYALTIES' EXTRACTED ABOVE, WOULD SHOW THAT THE PAYMENT, IN ORDER TO CONSTITUTE ROYALTY, S HOULD HAVE BEEN MADE 'FOR THE USE OF, OR THE RIGHT TO USE ANY COPYRIGHT ETC'. IN THE INSTANT CASE, WE HAVE NOTICED THAT THE PAYMENT WAS MADE BY BCCI TO THE AS SESSEE FOR PRODUCING THE PROGRAM CONTENT CONSISTING OF LIVE COVERAGE OF CRICKET MATCHES. FURTHER, WE HAVE NOTICED THAT THERE IS NOTHING ON RECORD TO SHOW THAT THE ASSESSEE HAD RETAINED THE OWNERSHIP OF THE PROGRAM CONTENT. THE HON BLE DELHI HIGH ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 10 COURT HAD AN OCCASION TO EXAMINE AN IDENTICAL ISSUE IN THE CASE OF CIT VS. DELHI RACE CLUB (2015)(273 CTR 503) IN THE CONTEXT OF THE PROVISIONS OF SEC. 194J OF THE ACT. IN THE ABOVE SAID CASE, THE A SSESSEE WAS ENGAGED IN THE BUSINESS OF CONDUCTING OF HORSE RACES AND IT MADE P AYMENT FOR LIVE TELECAST OF RACES. THE AO HELD THAT THE SAID PAYMENT WOULD FALL UNDER THE DEFINITION OF 'ROYALTY' FALLING WITHIN THE PURVIEW OF THE PROVISI ONS OF SEC. 194J OF THE ACT AND HENCE DISALLOWED THE PAYMENTS U/S 40(A)(IA) OF THE ACT. THE HON BLE DELHI HIGH COURT OBSERVED AS UNDER:- '16. A LIVE T.V COVERAGE OF ANY EVENT IS A COMMUNIC ATION OF VISUAL IMAGES TO THE PUBLIC AND WOULD FALL WITHIN THE DEFI NITION OF THE WORD 'BROADCAST' IN SECTION 2(DD) (OF THE COPYRIGHT ACT ). THAT APART WE NOTE THAT SECTION 13 DOES NOT CONTEMPLATE BROADCAST AS A WORK IN WHICH 'COPYRIGHT' SUBSISTS AS THE SAID SECTION C ONTEMPLATES 'COPYRIGHT' TO SUBSIST IN LITERARY, DRAMATIC, MUSICAL AND ARTISTIC WORK, CINEMATOGRAPH FILMS AND SOUND RECORDING. SIMILAR IS THE PROVISION OF SECTION 14 OF THE COPYRIGHT ACT WHICH STIPULATES THE EXCLUSIVE RIGHT TO DO CERT AIN ACTS. A READING OF SECTION 14 WOULD REVEAL THAT 'COPYRIGHT' MEANS EXCLUSIVE RIGH T TO REPRODUCE, ISSUE COPIES, TRANSLATE, ADAPT ETC., OF A WORK WHIC H IS ALREADY EXISTING... IN VIEW OF THE AFORESAID POSITION OF LAW WHICH BROUGHT OUT A DISTINCTION BETWEEN A COPYRIGHT AND BROADCAST RIGHT, SUFFICIE WOULD IT BE TO STATE THAT THE BROADCAST OR THE LIVE COVERAGE DOES NOT HAVE A 'COPYRIGHT'. T HE AFORESAID WOULD MEET THE SUBMISSION OF MR. SAWNEY THAT THE WORD 'COPYRIG HT' WOULD ENCOMPASS ALL CATEGORIES OF WORK INCLUDING MUSICAL, DRAMATIC, ETC. AND ALSO HIS SUBMISSION THAT THE COPYRIGHT ACKNOWLEDGES THE BROA DCAST RIGHT AS A RIGHT AS A RIGHT SIMILAR TO 'COPYRIGHT'. IN VIEW OF THE CONC LUSION OF THIS COURT IN ESPN STAR SPORTS CASE (SUPRA), SUCH A SUBMISSION NE EDS TO BE REJECTED.' THOUGH THE ABOVE SAID DECISION WAS RENDERED IN THE CONTEXT OF PROVISIONS OF SEC. 194J OF THE ACT, YET SECTION IMPORTS THE DEFIN ITION OF THE TERM 'ROYALTY FROM EXPLANATION 2 TO SEC. 9(1)(VI) OF THE ACT. UND ER THE DEFINITION GIVEN IN THE ABOVE SAID PROVISION ALSO 'ROYALTY' MEANS CONSI DERATION FOR THE TRANSFER OF ALL OR ANY RIGHTS (INCLUDING THE GRANTING OF A L ICENCE) IN RESPECT OF A PATENT, INVENTION, MODEL, DESIGN, SECRET FORMULA OR PROCESS OR TRADE MARK OR SIMILAR PROPERTY. 15.IN THE INSTANT CASE, WE HAVE NOTICED THAT THE BC CI BECOMES THE OWNER OF THE PROGRAM CONTENT PRODUCED BY THE ASSESSEE. THE JOB O F THE ASSESSEE ENDS UPON THE PRODUCTION OF THE PROGRAM CONTENT AND THE BROADCAST ING IS CARRIED OUT BY SOME OTHER ENTITY TO WHICH LICENSE WAS GIVEN BY THE BCCI. HENC E, IN OUR VIEW, THE QUESTION OF TRANSFER OF ALL OR ANY RIGHT DOES NOT ARISE IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. HENCE, WE ARE OF THE VIEW THAT THE PAYMENT RE CEIVED BY THE ASSESSEE CANNOT BE CONSIDERED AS 'ROYALTY IN TERMS OF THE INDIA-UK DTAA. THOUGH, IT IS NOT N ECESSARY TO EXAMINE ABOUT THE APPLICABILITY OF PROVISIONS OF SEC. 9(1)(VI) OF THE ACT, YET THE FACTS DISCUSSED ABOVE WOULD SHOW THAT THE PAYMENT R ECEIVED BY THE ASSESSEE CANNOT FALL WITHIN THE PURVIEW OF SEC. 9(1)(VI) OF THE ACT ALSO.' RESPECTFULLY, FOLLOWING THE ABOVE ORDER, WE DECIDE THE EFFECTIVE GROUND OF APPEAL AGAINST THE AO, AS THE FACTS FOR THE YEAR UNDER CON SIDERATION ARE IDENTICAL TO THE FACTS OF AY.2010-11. ITA NO.7146/M/2017 M/S. IMG MEDIA LTD. 11 7. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISI ON OF THE CO- ORDINATE BENCH OF THE TRIBUNAL, DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE BY SETTING ASIDE THE ORDER OF AUTHORITIES BELOW. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.11.2018. SD/- SD/- ( JOGINDER SINGH) (RAJESH KUMAR) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 28.11.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.