TDS / Withholding of tax under section 195, Payment of royalty to various countries & Proof of residency certificate

Short Overview : In the absence of any evidence even in one case that the vendor of a country of 10% withholding tax rate is, in fact, resident of some other country having higher withholding tax rate, there was no reason to interfere in the order of CIT(A).

The issue was about relief allowed by CIT(A) in respect of levy of surcharge and cess by directing the AO that surcharge and cess should be levied only in the cases where the non-resident vendors were residents of countries with which DTAA allows withholding rate of more than 11.33%. This is the case of the department that in respect of royalty payment to those countries also for which DTAA prescribes withholding tax rate of 10%, surcharge and cess should be levied because no proof was brought on record by the assessee about proof of residency of those parties in those countries. In Para 13 of the impugned order, it was stated by CIT(A) that the assessee had submitted the details regarding software payments, name of vendor, country of vendor and amount paid and he had also stated in the same Para that he had gone through the details carefully.

it is held that  It was claimed by the assessee before CIT(A)  that withholding tax rate for payment of royalty to all countries in dispute except Greece is 10% but he had held that this claim was not correct and he had noted the withholding tax rate on payment of royalty in respect of USA, UK, Austria, and Canada is 15% and the same for Spain is 20%. This showed that CIT(A) had not accepted the claim of the assessee without examination and verification. Hence, if this was the contention of the revenue that the vendors of Ireland, Netherland, Singapore, Israel, France, Germany, Australia and Belgium, etc., were not residents of respective countries, the revenue should have brought on record some evidence in this regard. In the absence of any evidence even in one case that the vendor of a country of 10% withholding tax rate is, in fact, resident of some other country having higher withholding tax rate, there was no reason to interfere in the order of CIT(A).

Decision: Agaisnt the assessee.

IN THE ITAT, BANGALORE “B” BENCH

A.K. GARODIA, A.M. & LALIET KUMAR, J.M.

Wipro Ltd. v. Addl. CIT & Anr.

ITA Nos.1215 to 1220/Bang/2014 & 18 to 23/Bang/2017 (ITA Nos. 2328/Bang/2016 & 2335 to 2338/Bang/2016)

A.Ys. 2007-08 to 2012-13

21 June, 2019

Assessee by: K.R. Pradeep, C.A.

Respondent by: K.V. Aravind, Standing Counsel & Dilip, Adv.

ORDER

Per Bench

These are appeals arising out of the common order passed by the Commissioner (Appeals) on the following grounds:–

“1. That the order of the learned Commissioner of Income-tax (Appeals) (hereinafter referred to as “the Commissioner (Appeals)”) in so far as it is against the appellant is against law, facts and circumstances in the case of the appellant.

2. The notice, proceedings and order are all bad in law, without jurisdiction and invalid.
3. That the appellant denies the liabilities under section 201(1) and 201(1A) of the Act.
4. The Commissioner (Appeals)/Assessing Officer erred in declaring the assessee as in default under section 201(1) of the Act.
5. That the order passed under section 201(1) and 201(1A) of the Income Tax Act is without jurisdiction, not as per law and barred by limitation, hence requires to be cancelled.
6. The Commissioner (Appeals) erred in confirming the order passed under section 201(1) & 201(1A) even after noticing that a single order was passed for multiple assessment years which is not as per law, hence requires to be cancelled.
7. That the orders of the Commissioner (Appeals) /Assessing Officer are liable to be cancelled as they are passed in gross violation of judicial discipline inasmuch as even the judgment of the jurisdictional High Court in appellant’s own case, which upheld the appellate orders for the earlier years involving similar facts, has been disregarded.
8. That the Commissioner (Appeals) merely carried out an academic exercise of analyzing various Explanations, clauses under section 9(1)(vi) of the Act, provisions of Double Taxation Avoidance Agreements and judicial decisions without actually specifying the charge having regard to the facts and circumstances in the appellant’s case.
9. That the Learned Commissioner (Appeals) erred in confirming the liability against the appellant contrary to the provisions of the Income Tax Act and also DTAA.
10. That the Commissioner (Appeals) erred in sustaining the order passed by the assessing officer by upholding that payments made for purchase of software licenses, are royalty payments both under section 9(1)(vi) the Income Tax Act, 1961 and as per relevant DTAA, exigible for deduction of tax at source.
11. That the learned Commissioner (Appeals) / assessing officer erred in fastening a liability on the appellant under section 201(1) and 201(1A) based on Explanation 4 to section 9(1)(vi) of the Act which has been inserted by the Finance Act, 2012 with read effect from 1-6-1976.
12. That the learned Commissioner (Appeals) / Assessing Officer failed to appreciate that there cannot be retrospective default in the matter of tax deduction at source on the basis of retrospective amendment, hence on this ground alone the order requires to be cancelled.
13. For the above and other grounds and reasons which may be submitted during the course of hearing of this appeal, the assessee requests that the appeal be allowed as prayed and justice be rendered.”

A common order was passed by the Commissioner (Appeals) in ITA Nos.173 to 178/Intl. Taxn./CIT(A)-IV/2012-13. Feeling aggrieved by the common order passed by the Commissioner (Appeals) under section 201(1) & 201(1A) dated 30-11-2014 for the assessment years 2007-08 to 2012-13, these six appeals are filed by the assessee before the tribunal. The year wise details of the demand were as under:–

Assessment Year	Amount
2007-08	4,47,22,584
2008-09	5,82,68,394
2009-10	94,88,913
2010-11	3,19,95,710
2011-12	2,44,56,548
2012-13	54,55,010

2. The proceedings under section 201(1) of the Act was initiated by the Officer after issuing a notice on 9-12-2012, 26-2-2013, 23-5-2013 & 20-8-2013. In reply of various notices, the DDIT (Intl. Taxn.) in para 6 mentioned that the assessee is a Indian company and the payees are foreign companies based in US, Ireland, Singapore, Australia, Israel etc. with their residential status being that of resident and non-resident respectively. The DDIT further noticed that as the payments were made to various vendors such as Avaya Cisco Systems International Finance Corp (Netherlands), Appdna Inc (US), Actuate Pte Ltd. (Singapore), Cisco Systems International Finance Corp (Netherlands), GE Commercial Distribution Finance Corp etc. towards purchase of licensed software, as per the provisions of section 9(1)(vi) of the Act the payments made by the assessee to these non-resident foreign entities were in the form of royalty and hence, it was held that it was the duty of assessee to deduct tax at source in accordance with the law. As there was a failure on the part of assessee to deduct tax at source, the assessing officer had issued show cause notices by invoking the provisions of section 201(1) by treating the assessee as assessee in default in respect of tax.
3. The assessee filed a detailed reply. After considering the reply of assessee, the DDIT had passed a common order against the assessee in respect of payments made to the foreign non-resident entities. Feeling aggrieved by the order passed by the DDIT, the assessee filed an appeal before the Commissioner (Appeals) and raised various grounds before the Commissioner (Appeals).
4. However, the learned Commissioner (Appeals) was not convinced with the submissions made before him by the assessee and accordingly, he passed an order against the assessee.
5. As per the assessing officer, he later noted the following two mistakes in the order passed by the DDIT:–

“1. Since assessing officer has considered the rate of tax as per provisions of Income Tax Act, surcharge and educational cess should have been levied on the tax liability calculated by the assessing officer. However, assessing officer has failed to levy surcharge and educational cess in the order under section 201(1) & 201(1A).

2. As per the agreements entered by assessee with foreign vendors available on record, the payment had to be made to the Vendors net of taxes. Thus as per section 195A of the Income Tax Act, 1961 while passing order under section 201(1) and 201(1A) assessing officer should have considered grossing up of the payment. But assessing officer did not consider the grossing up of amount credited as required under section 195A, for determining the tax-deductible under section 195 in respect of payments made to Non-resident companies.”
3. The assessing officer then issued notice to the assessee under section 154 for rectifying these mistakes and to grant opportunity of hearing to the assessee before passing the order under section 154 because this will increase the tax liability of the assessee and after hearing the assessee, he passed the rectification order for all the assessment years.
4. The assessee feeling aggrieved by the order passed by the DDIT(Inv.) under section 154 read with section 201(1) & (1A) of the Act filed appeal before the Commissioner (Appeals).
5. The Commissioner (Appeals) had decided the issue of grossing up of taxes in favour of the assessee as recorded in para 8 as under:–

“8. I have gone through the agreement between Microsoft Licensing, GP (“MS”) and the appellant containing Master Licensing Agreement. The agreement clause cited by the assessing officer and that quoted by the appellant are the same as per the agreement produced before me. As per the plain reading, the clause only speaks of the agreement between the parties to the effect that Wipro may deduct taxes required to be paid on remittances and pay it to the authority. As per the Master Agreement with Microsoft, there is no indication of any definite amount to be paid to the vendor irrespective of taxes. There is no basis to infer that the appellant had to bear the cost of taxes payable on remittances. Moreover, the appellant is right in contending that the terms of one agreement could not be applied to payments pertaining to other vendors. Raising of additional demand based on facts relating to one payment and applied to other payments requires inference and extrapolation. It could not be called a mistake / apparent from record. Therefore, section 195A was not applicable on the facts and circumstances of the case. The additional 1iability due to grassing up of the tax with remittances as made by the assessing officer in order under section 154 is deleted.

Ground Nos. 6 and 7 are allowed.”

8A. In these appeals, the assessee raised these grounds also before Commissioner (Appeals) that the orders passed by the assessing officer under section 154 are bad in law because the rectifications made by the assessing officer are beyond the scope of section 154. This ground was also raised by the assessee before Commissioner (Appeals) in 154 proceedings that interest under section 201 (1A) is also disputed. Learned Commissioner (Appeals) disposed of these appeals in the proceedings under section 154 by way of a separate combined Order, dt. 26-10-2016 in ITA No. 47 to 52/CIT (A)/2015 -16. As per this order, he held that grossing up of tax by invoking the provisions of section 195A is not as per law but he held that the orders p (assed by the assessing officer under section 154 are not bad in law.

He also held that the assessing officer is directed to levy surcharge and cess in respect of royalty payments made to vendors who are resident of such countries with which the DTAA with India allows withholding of more than 11.33% and deleted the surcharge and cess ion respect of other payments.

9. Feeling aggrieved by the order passed by the Commissioner (Appeals) in respect of grossing up of taxes, the revenue is in appeal before us as perITA Nos. 2335 to 2339/Bang/2016 on the following identical grounds:–

“1. Learned Commissioner (Appeals) has erred in partly allowing the appeal of the assessee which is opposed to law, facts and circumstances of the case.

2. Learned Commissioner (Appeals) failed to appreciate the fact that as per the terms of the Agreement entered by assessee with non-resident vendors the onus of deduction of taxes on the payments made solely vests on assessee. Accordingly, the assessing officer (AO) has rightly passed the order under section 154 read with section 201 on a grossing-up basis.
3. As per the Agreements with vendors which is part of the record, it is very clear that it was the sole responsibility of the assessee to pay the taxes as applicable in India on payments made to the vendors. Accordingly, the assessing officer has grossed up the amounts under section 195A and passed an order under section 154 of the Income Tax Act. However, the learned Commissioner (Appeals) erred in holding that the order was beyond the scope of the provisions of section 154 of the Act.
4. Learned Commissioner (Appeals) failed to appreciate the fact that beneficial provisions of DTAA are applicable only to the residents of respective countries and to avail the benefits one must submit the proof of the residency.
5. Learned Commissioner (Appeals) has not appreciated the fact that in the absence of beneficial provisions of DTAA, provisions of Income Tax Act will prevail.
6. Learned Commissioner (Appeals) failed to appreciate that in the absence of any proof of residency of the parties, the cut off of 11.33% of TDS was not relevant. Accordingly, the learned Commissioner (Appeals)erred in allowing part relief on levy of surcharge and education cess stating that surcharge and education cess should be levied only in the cases where the non-resident vendors are residents of countries with which the DTAA allows withholding rate of more than 11.33%.
7. For these and such other grounds that may be urged at the time of hearing, it is prayed that the order of the Commissioner (Appeals) may be annulled and that of the assessing officer be restored.”
8. Similarly, the assessee is also aggrieved om some issues which are decided by Commissioner (Appeals) against the assessee in proceedings under section 154 and the assessee has also filed appeals before us as perITA Nos. 18 to 23/Bang/2017 on the following identical grounds:–

“1. That the order of the learned Commissioner (Appeals) (hereinafter referred to as “the Commissioner (Appeals)”) is against law, facts and circumstances in the case of the appellant.

2. That the orders of the learned authorities below are liable to be cancelled as they are passed in gross violation of judicial discipline in as much rate as per Income Tax are applied overlooking the rate as per DTAA.
3. That the learned Commissioner (Appeals) has erred in considering the rate of tax as 15% in USA, UK, Austria and Canada and 20% for Spain whereas the rate of tax as per the relevant clause of the respective DTAA is 10%.
4. That the learned Commissioner (Appeals) has erred in not considering that the order under section 154 of the Income Tax Act, 1961 (Act) is bad in law and is thereby disputed.
5. That the learned Commissioner (Appeals) has erred in not considering that the rectification under section 154 was made on an issue that is clearly outside the scope of section 154 of the Act.
6. That the learned Commissioner (Appeals) has erred in not considering that the findings, reasons given by the assessing officer for carrying out rectification are contrary to facts emerging from records and is unsustainable and untenable in law.
7. That the learned Commissioner (Appeals) has erred in fastening a liability on the appellant under section 201(1A) of the Act.
8. That the above grounds are without prejudice to each other.

The appellant craves leave to add, alter, amend or vary from the above grounds of appeal before or at the time of hearing.”

11. We will first deal with the appeals filed by the assessee in the proceedings under section 01 and 201(1A). The first effective ground raised by the assessee before us and also before the Commissioner (Appeals) (Appeals) is that the DDIT was bound to grant relief in favour of the assessee in terms of the binding decision of the Hon’ble Karnataka High Court in assessee’s own case (ground No.2 before the Commissioner (Appeals) and ground No.7 before us).
12. The assessee has drawn our attention to the decision of the Hon’ble High Court of Karnataka rendered inITA No.507/2002, dt. 25-8-2010 wherein in para 37 & 38 it was held as under:–

“37. The last substantial question of law framed. is as under:–

‘Whether the Tribunal is correct in allowing expenditure on imported software when the expenditure per se is capital in nature and is non-allowable?’

38. The assessee company claims import of software for the purpose of retail trading, pre loading into the Hardware sold and also for in house use. The software. is a commodity having copyrights. Each software product is a licence to the use for the specified purpose only. The assessee made it very clear that the software which they have imported are used as a tool by end users to facilitate certain functions or operate their computers. It is not a copyright which meant for commercial exploitation of the copyright under a licence. The copy right which is imported are goods sold in the market place as goods or as an integral part of the computers manufactured and sold by the company and therefore, they are entitled to deductions of the entire consideration paid for acquiring this copyrighted article. Though the assessing officer accepted the case of the assessee in so far as the software in house to the tune of Rs.4,29,99,061 the consideration paid is treated as a royalty and as the assessee had not deducted tax at source he disallowed deduction of the aforesaid amount under section 195 read with section 40(a)(i) of the Act. Aggrieved by the same, the assessee preferred an appeal. The Commissioner of Appeals held the expenditure on import of software is of revenue nature. If it is pertaining to business the profit from which is not exempt under section 10A and, therefore, it is to be allowed as deduction. He held the expenditure cannot be disallowed under Section. 40(a)(i). In appeal by the revenue, the Tribunal held they cannot go into the question whether the expenditure in nature as that is not what was urged before the lower authorities. Once it is held to be not representing the royalty and it is a revenue expenditure, the deduction allowed by the Appellate Authority is legal and valid and do not call for any interference.”
39. The learned DR had also drawn our attention to the order of Tribunal passed inITA No.426, 427, 468 & 469/Bang/2006, dt. 30-5-2008 wherein the Tribunal in paragraphs 18.5 & 18.6 held as under:–

“18.5 We have heard both the parties. It is true that the issue under reference stands covered by the decision of the Tribunal in the case of the assessee for the asst. year 2000-01. The Tribunal while disposing off the appeal for the asst.year 2000-01, followed he earlier order for the asst.years 1998-99 and 1999-2000, which is reported in (2005) 96 TTJ 211 (Bang) : 2005 TaxPub(DT) 1673 (Bang-Trib), Thus, the issue is covered in favour of the assessee.

18.6 The Special Bench in the case of Amway India Enterprise v DCIT (2008) 111 ITD 112 (Del) : 2008 TaxPub(DT) 1656 (Del-Trib) had an occasion to consider as to whether the expenditure incurred on software is revenue or capital. If the life of the computer software is shorter, say less than two years, then it is to be treated as revenue expenditure. The Special Bench further observed that if there are associated capital expenditure like purchase of new computer equipment for running the software developed under the project, then it can be considered as capital expenditure. If the software is used as part of the profit-making apparatus of the assessee, then expenditure on software is capital. If it is used to facilitate the running of the business, then it is revenue in nature. Since in the instant case, the assessing officer has simply relied on the order of his predecessor by holding the expenditure as capital, therefore, we have to record a finding on the basis of the finding recorded in earlier year. Since in earlier years, the issue stands deckled in favour of the assessee, therefore, we are not inclined to interfere with the finding of the learned Commissioner (Appeals). Moreover, the Tribunal is holding that the payment made for purchase of branded and shrink wrap software are not in the nature of royalty and therefore, disallowance cannot be made on the ground that no tax at source has been deducted. Hence we confirm the order of the learned Commissioner (Appeals) on this issue.”

14. Further our attention was also drawn to theOrder, dt. 18-7-2002 wherein in para 24 & 25 it was held as under:–

“24. In Grounds No.20 to 23, the assessee has projected its grievance against the order of the assessing officer whereby the assessing officer disallowed claim of the assessee for depreciation of Rs.19,46,23,236 on imported software products used by the assessee in-house. The assessee claimed depreciation amounting to Rs.19,46,23,236 on software purchased both locally and imported and used in its business and furnished the details thereof to the assessing officer in the course of assessment proceedings. The assessing officer was of the opinion that the provisions of section 40(a)(ia) of the Act are applicable and proposed to disallow the depreciation claimed on such purchases. The assessee submitted that the software purchased by it is in the nature of goods and the provisions of section 40(a)(ia) were not applicable to it and also that no order has been passed under section 201(1) of the Act treating it as an assessee in default in respect of payments for imported software. It was submitted by the learned Authorised Representative that the assessing officer did not accept the explanation put forth by the assessee and disallowed the entire depreciation claimed on the ground that there was an obligation on the part of the payers to effect deduction from out of payments made by them in favour of non-resident recipients for acquiring any software even assuming that it partakes the character of goods. It was submitted that the assessing officer was of the view that software is basically purchased by way of licence to use and he relied on the judgment of the Hon’ble High Court of Karnataka in the case of Synopsis Inc. and the decision of the Delhi Tribunal in the case of Microsoft Corporation v. ADIT. It was contended that the DRP agreed with the reasoning of the assessing officer in continuing the disallowance, even though it was submitted therein that the learned Commissioner (Appeals) and the Tribunal had decided this issue in the assessee’s favour in the earlier assessment years, on the ground that the Department has taken the matter in further appeal under section 260A of the Act and that the matter had not attained finality. The learned Departmental Representative placed reliance on the findings of the assessing officer and the DRP on this issue and reiterated the arguments in the orders of the authorities below.

25. We have heard both parties and carefully perused and considered the material on record. We find from a perusal of the order of the co­ordinate bench of the Tribunal in the assessee’s own case for assessment year 2004-05 inITA No.1072/Bang/2007(supra) at para 8.2 thereof that this issue has been held in favour of the assessee following the earlier decision of the Tribunal in the assessee’s own case in ITA Nos.426, 427, 468 and 469/Bang/2006 for assessment years 2001­-02 and 2002-03. It is seen from this order that this issue has been decided in favour of the assessee company by the Tribunal from assessment year 1998-99 onwards. We, therefore, respectfully following the decision of the co­ordinate bench of the Tribunal for assessment year 2004-05 (supra), decide this issue in favour of the assessee. Grounds No.20 to 23 are allowed to the above extent.”
26. The learned AR has further drawn our attention to the order passed inITA No.1655/Bang/2012 wherein in ground No.15 at para 16, it was decided as under:–

“16. We have heard the learned Authorised Representative as well as learned Departmental Representative and considered the relevant material on record. At the outset, we note that an identical issue has been considered in assessee’s own case for the assessment year 2004-05 and again for the assessment year 2007-08. For the assessment year 2007- 08, the Tribunal has decided this issue in para 8.4 as under:

“8.4 We have heard both parties and have perused and carefully considered the material on record We find from a perusal of the order of the co-ordinate bench of the Tribunal in the assessee’s own case for assessment year 2004-05 In ITA No. 1072/Bang/2007 (supra) at para 82 thereof that this issue has been held in favour of the assessee following the earlier decision of the Tribunal In the assessee’s own case in ITA Nos. 426, 427, 468 & 469/8al1g/2006 for assessment years 2001-02 and 2002-03, It is seen from this order that this issue has been decided in favour of the assessee company by the Tribunal from assessment year 1998-99 onwards. We, therefore, respectfully following the decision of the co-ordinate bench of the Tribunal for assessment year 2004-05 (supra) decide this issue in favour of the assessee.

Thus it is clear that the Tribunal has followed the earlier order for the assessment year 2004-05 which has been confirmed by the Hon’ble jurisdictional High Court. Following the earlier order of this Tribunal as well as Hon’ble jurisdictional High Court, we decide this issue in favour of the assessee.”

16. The learned AR has further drawn our attention to para 170 to 172 of the order of the jurisdictional High Court in the matter ofWipro Ltd. v. DCIT for the assessment year 20101-02 to 2004-05 to the following effect:–

“17. The said questions arose for consideration before this Court in the assessee’s case in ITA No.3198/2005 which was decided on 28-2-2012 where the substantial questions of law were answered in favour of the assessee and against the revenue. Following the said Judgment, said questions of law are answered in favour of assessee and against the revenue.

Substantial Question No.18:

“Whether the Appellate Authorities were correct in holding that the payments made by the assessee for import of software cannot be disallowed under section 40(a)(i) of the Act for failing to deduct tax at source under section 195 of the Act as such payments did not constitute royalty under section 9(1)(vi) of the Act?”

(Question of law No.26 in ITA Nos.907 & 909/2008, Question of law No.22 in ITA Nos.904 & 905/2008 and Question of law No.9 in ITA No.363/2009 – (Department’s appeal))

“Whether the Appellate Authorities were correct in holding depreciation claimed on software imported for in house utilization and treated as part of block of assets should be allowed, despite the same being in the nature of royalty as per Explanation to section 9(1)(vi) of the Act and no TDS under section 194 of the Act having been deducted, section 40(a)(i) of the Act?”

(Question of law No.2 in ITA Nos.210 & 211/2009 -(Department’s appeal))

17. The said substantial questions of law arose for consideration in the assessee’s case itself inITA 507/02which was decided on 25-8-2010 where the substantial question of law was answered in favour of assessee and against the revenue. Accordingly, the said question of law is answered in favour of the assessee and against the revenue.

Substantial Question No.19:

“Whether the Appellate Authorities were correct in holding that excise duty and sales tax should be included in the total turnover for the purpose of computation of deduction under section 80 HHC of the Act?”

(Question of law No.27 in ITA Nos.907 & 909/2008; Question of law No.23 in ITA Nos.904 & 905/2008; Question of law No.12 in ITA Nos.210 & 211/2009 and Question of law No.14 in ITA No.363/2009 – (Department’s appeal))

17.2. The said question also arose for consideration before this Court in the assessee’s case in ITA No.507/2002 which was decided by Judgment, dt. 25-8-2010, the said question of law was answered in favour of assessee and against the revenue.”

17. On the basis of the above said orders, the learned AR had submitted that the Officer who had passed the order and the Commissioner (Appeals) had totally ignored the binding precedent of the Tribunal as well as High Court passed in the case of assessee, whereby all the authorities have consistently held that the payment made by the assessee was not in the form of royalty and therefore, once the authority ( court / tribunal )created by law has declared that the payment made by the assessee to a non-resident entity was not in the nature of royalty, there was no liability on the part of assessee to withhold tax at the time of making payment to such non-resident entity. Having so decided in favour of assessee by the competent courts and Tribunal, it was inappropriate and the authorities were in contempt for initiating action under section 201(1) & (1A) of the Act.
18. Per contra, the learned Sr. Standing Counsel for the revenue had submitted that the decisions rendered by the Tribunal were issued without considering the law laid down by the Hon’ble High Court in the matter ofCIT v. Synopsis International Old Ltd. 212 Taxman 454 (Kar) : 2013 TaxPub(DT) 0529 (Karn-HC) and in the matter of CIT v. Samsung Electronics Co. Ltd. & Ors. 345 ITR 494 (Kar) whereby the High Court has consistently held that the payments made by the assessee for purchase of software was in the nature of royalty and hence, subject to deduction of tax and non-deduction of tax automatically invokes the rigors of section 201 for declaring the assessee as assessee in default. It was further submitted by the learned DR that the law laid down by the Hon’ble Supreme Court in the case of CIT v. Sun Engineering Works (P) Ltd. 198 ITR 297 (SC) : 1992 TaxPub(DT) 1434 (SC) wherein the Hon’ble Supreme Court had explained the principle of interpretation of judgment and also the decision of Delhi Municipal Corporation v. Gurnam Kaur AIR 1989 SC 38 wherein the Hon’ble Supreme Court at page 8&9 had held as under:–

“Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das’ case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the Court on the question or not whether any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a PG NO 939 pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th edn. explains the concept of sub silentio at p. 153 in these words:

“A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.”

In Gerard v. Worth of Paris Ltd. (k)., (1936) 2 All E.R. 905 (C.A.), the only point argued was on the question of priority of the claimant’s debt, and, on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith, Ltd., (1941) 1 KB 675. the Court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by counsel in order that the point of substance might be decided.”

19. Similarly, the learned DR also relied upon the decision in the case ofUOI v. Dhanwanthi Devi, 1996 (6) SCC 44 at 51 para 13 to 14 held as under:–

“Before adverting to and considering whither solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Hari Kishan Khosla’s case is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and per se per incuriam. It is not everything said by a Judge who giving judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contain three basic postulates–

(i) findings of material facts, is the inference which the Judge draws from the direct, or perceptible facts;

(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and

(iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in decision is its ratio and not every observation found therein not what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding between the parties to it, but it, is the abstract ratio decidendi, ascertained on a consideration of the judgment in to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisive. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decided.

Therefore, in order to understand and appreciate the binding force of a decision is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent in the use of precedents. It would, therefore, be necessary to see whether Hari Kishan Khosla’s case would form a binding precedent. Therein, admittedly the question that had arisen and was decided by the Bench of three Judges was whether solatium and interest are payable to an owner whose land was acquired under the provisions of the Central Act? On consideration of the facts, the relevant provisions in the Central Act and the previous precedents bearing on the topic the Court had held that solarium and interest are not a part of compensation. It is a facet of the principle in the statute. The Central Act omitted to provide for payment of solatium and interest since preceding the acquisition the property was under was under requisition during which period compensation was under requisition during which period compensation was paid to the owner. The position obtained and enjoyed by the Government during the period of requisition continued after acquisition. The same principle was applied without further elaboration on entitlement to payment of interest of an owner. It is true that the decisions relied on by Shri Vaidyanathan on the principle of payment of interest as part of compensation in respect of land acquired were brought to the attention of this Court for discussion. What would be considered a little later. Suffice it to say for the present that the finding that solatium and interest are not payable for the lands acquired under the Central Act as part of compensation is a binding precedent. Obviously, therefore, this Court followed the ratio therein in District Judge, Udhampur case (supra). The contention, therefore, that Hari Kishan Khosla’s case cannot be treated as a binding precedent since therein there is no ratio but a conclusion without discussion, is not tenable and devoid of force. In that view, it is not necessary to discuss in extenso the effect of the decisions cited by Shri Vaidyanathan. Equally, the contention of Shri Vaidyanathan that the ratio in Hari Kishan Khosla’s case is in conflict with the ratio in Satinder Singh’s case which was neither distinguished nor overruled and that the decision of a co­ordinate Bench cannot have the effect of overruling decision of another co-ordinate Bench, cannot be given countenance. The effect of the ratio in Satinder Singh’s case will be considered a little later; suffice it to state that there is no conflict in the ratio of these two cases if the facts in Satinder Singh’s case are closely analysed and the principle laid down therein is understood in its proper perspective. Therefore, Hari Kishan Khosla’s case cannot be held to be per incuriam not has it the effect of overruling the ratio decidendi of Satinder Singh’s case.”

20. The Hon’ble Supreme Court in the case ofBharagawan Pillai v. State of Kerala, AIR 2004 SC 2317 at para 24 had held to the following effect:–

“Coming to the plea relating to benefits under the Probation Act, it is to be noted that section 18 of the said Act clearly rules out application of the Probation Act to a case covered under section 5(2) of the Act. Therefore, there is no substance in the accused- appellant’s plea relating to grant of benefit under the Probation Act. The decision in Bore Gowda’s case (supra) does not even indicate that section 18 of the Probation Act was taken note of. In view of the specific statutory bar the view, if any, expressed without analysing the statutory provision cannot in our view be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. Looked at from any angle, the appeal is sans merit and deserves dismissal which we direct.”

21. On the basis of the above, it was submitted that the principle of law expounded by the High Court in the case ofWipro (supra) (case of the assessee) was not the exposition of law as considered by the Hon’ble Supreme Court and was only with respect to facts before the jurisdictional High Court and therefore, will not come in the way of Assessing Officer/ Commissioner (Appeals) for declaring the assessee as assessee in default under section 201(1) of the Act.
22. The learned DR had also relied on the decision of the Tribunal rendered in the case ofIntertec Software Pl. Ltd. v. ITO, dt. 13-10-2015 which was followed in the decision of GE India Industrial P. Ltd. [in ITA No.595/Bang/2016, dt. 17-11-2017, wherein at para 6, it was recorded as under:–

“6. We have heard the rival submissions and perused the material on record. We find that the coordinate bench in the matter of Intertec Software Pvt. Ltd., v. ITO, dt. 13-10-2017, wherein the author of this order was the co-author, after relying upon the judgment of the jurisdictional High Court in the matter of CIT (IT) v. Samsung Electronics Co. Ltd. (2011) 203 Taxman 477 (Karn) : 2011 TaxPub(DT) 2175 (Karn-HC) and distinguishing the later judgment of the jurisdictional High Court in WIPRO Ltd. v. DCIT (2016) 382 ITR 179 (Karn) : 2016 TaxPub(DT) 0327 (Karn-HC), has held as under :

4. We have considered the rival submissions. First, we examine the applicability of the first judgment of Hon’ble Karnataka High Court rendered in the case ofWIPRO Ltd. v. DCIT(Supra) rendered on 25-8-2010. In this case, the substantial question of law raised as per Para 37 was as under:–

“Whether the Tribunal is correct in allowing expenditure on imported software when the expenditure per se is capital in nature and is not allowable?”

5. From this substantial question of law, it comes out that in that case, this was not a dispute before Hon’ble Karnataka High Court as to whether the import of software is Royalty or not? The dispute in that case was this that the import of software is capital expense in that case and therefore, how the same can be allowed as deduction. In that case also, the assessing officer held that the payment for software is Royalty and since TDS was not deducted, it is to be disallowed under section 40 (a) (i) but when the assessee carried the mattering appeal before Commissioner (Appeals), he held that it is not Royalty and therefore, cannot be disallowed under section 40 (a) (i). The revenue filed appeal before the tribunal but the dispute raised was not this that it is Royalty or not? The dispute raised was this that it is capital expenditure and therefore, cannot be allowed. The tribunal held that the tribunal cannot go into this question as this is not what was urged before the lower authorities. The revenue filed appeal before Hon’ble Karnataka HighITA No. 1388/Bang/2013Court and the tribunal order was confirmed. Hence, this is seen that as per this judgment of Hon’ble Karnataka High Court, the decision is not on this aspect that it is Royalty or not and therefore, this judgment is not relevant in the present case.
6. Now, we examine the applicability of the second judgment of Hon’ble Karnataka High Court rendered in the case ofWIPRO Ltd. v. DCIT(Supra) rendered on 25-3-2015. As per this judgment, in Para 171, it was held that in earlier judgment dated 25-8-2010, similar question was decided in favour of the assessee and against the revenue and therefore, in those appeals also, the issue was decided in favour of the assessee. We have already seen that the decision dated 25-8-2010 is not on this aspect that it is Royalty or not and therefore, this judgment is not relevant in the present case. Accordingly, this later judgment dated 25-3-2015 is also not relevant.
7. There is no dispute that the present issue is covered against the assessee by the judgment of Hon’ble Karnataka High Court rendered in the case ofCIT v. Samsung Electronics Co. Ltd.(Supra) and learned AR of the assessee has merely cited these two judgments rendered in the case of WIPRO Ltd. (Supra) and no other argument was made to the effect that this issue is not covered against the assessee by this judgment of Hon’ble Karnataka High Court rendered in the case of CIT v. Samsung Electronics Co. Ltd. (Supra). Since, these two judgments cited by him are not applicable as per above discussion; ITA No. 1388/Bang/2013 we respectfully follow the judgment of Hon’ble Karnataka High Court rendered in the case of CIT v. Samsung Electronics Co. Ltd. (Supra) and decline to interfere in the order of Commissioner (Appeals).

Respectfully following the judgment of the Hon’ble jurisdictional High Court (supra) and that of the order of the coordinate bench (supra), on identical facts and circumstances, we uphold the orders of the lower authorities.”

23. On the basis of above decisions and the binding precedent of the jurisdictional High Court in the matter ofSamsung Electronics Co. Ltd. & Ors., (supra) and Synopsis International Old Ltd. (supra), it was submitted that the action on the part of learned DCIT in invoking the provisions of section 201 was in accordance with the law.
24. It was further submitted that if this Tribunal does not follow the law laid down by the Hon’ble jurisdictional High Court in the matter ofSamsung Electronics Co. Ltd. & Ors., (supra), then it / tribunal would be under contempt of court for not following the law laid down by the jurisdictional High Court and therefore, it will amount too non-compliance of the order of the Hon’ble High Court.
25. In rebuttal, the learned AR filed the written submission as directed by the Bench and has submitted as under:–

“Pursuant to the hearing on 24-4-2019 and in addition to the written submissions filed during hearings on 20-3-2015, 19-11-2015 & 22-11-2017, the assessee submits that the issue in question is held in favour of the assessee in assessee’s own case for assessment year 2007-08 by the Hon’ble FEAT in ITA 972/13/2011 dt.15-6-2012 (Paper book index II pages 89 to 93, relevant page 90 to 92, Para 8.1 to 8.4) wherein the Hon’ble ITAT even after considering the department’s reliance on the decisions rendered by Hon’ble Karnataka High Court in Synopsis Inc and Delhi ITAT in the case of Microsoft Corporation has held the issue in favour of the assessee by relying on the decisions of the Hon’ble ITAT rendered in assessee’s own case for assessment year’s 2001-02, 2002-03 & 2004-05.

Further the Hon’ble ITAT in assessee’s own case for assessment year 2008-09 in IT(TP)A 1665/B/12, dt. 4-1-2017 has decided the issue in favour of the assessee in Para 15 & 16, pages 17 & 18 of the order (copy of the order placed on record during hearing) wherein the Hon’ble ITAT has relied on the decision of the Tribunal in assessee’s own case for assessment year 2007-08 mentioned supra and the decision of the jurisdictional high court in assessee’s own case for assessment year 2004-05 in ITA 879/2008, dt. 25-3-2015 (copy placed on record – relevant para 170 page 56 of the order).

From the above it is seen that on identical set of facts having regard to the law even after the insertion of Explanation 4 to section 9(1)(vi) with retrospective amendment from 1-6-1976 carried out in Finance Act 2012, the decision of the Hon’ble ITAT and Hon’ble Karnataka High Court in assessee’s own case have been rendered in favour of the assessee on the basis of its own facts and the applicable law. The argument of the department that the issue before the Hon’ble ITAT and the Hon’ble High Court did not involve the question of TDS on Royalty is factually incorrect as evident from the discussion and the decision both by the Hon’ble ITAT and the Hon’ble High Court extracted in our written submission dt. 22-11-2017. It is to be seen that it is a decision between the litigant parties which has the binding effect. The reliance placed by the department in support of the order under section 201(1) & 201(1A) on the decisions of the Karnataka High court in CIT v. Samsung Electronics Co. Ltd. & Ors. 345 ITR 494 (Karn) — department paper book pages 1 to 25), CIT v. Synopsis International Old Ltd. 212 Taxman 454 – department paper book pages 26 to 51), CIT v. CGI Information Systems & Management Consultants (P.) Ltd. (2014) 226 Taxman 319 (Karn) : 2014 TaxPub(DT) 4134 (Karn-HC) ­department paper book pages 126 to 138) and others cannot overturn the decision rendered in assessee’s own case in a lis between the parties. A decision given in some other case cannot overturn the decision rendered in assessee’s own case and the decision is also applicable even from the rule of consistency and predictability. The reliance placed by the Ld.DR on the following decisions submitted during hearing on 24-4-2019 being CIT v. Sun Engineering Works (P.) Ltd. (1992) 198 ITR 297 (SC) : 1992 TaxPub(DT) 1434 (SC), Delhi Municipal Corporation v. Gurnam Kaur AIR 1989 SC 38, UOI v. Dhanwanthi Devi 1996 (6) SCC 44, Bhargawan Pillai v. State of Kerala AIAR 2004 SC 2317, Ramacharan Atma Ram Sonkar v. Radhe Shyam Dhakuram pandey 1998 (2) MPLJ 173, Hanuman Datt v. State of MP 2002 (4) MPLJ 354, Jagabandhu Sahu v. State of Orissa AIR 1969 Ori 299 and Tata International Ltd. v. Trisuns Chemicals Industry Ltd. 2002 (2) Bom CR 88 are not applicable as the clearest of language read in proper context is that the Hon’ble Karnataka High Court in assessee’s own case vide Order, dt. 25-8-2010 in ITA.No. 507/2002 in Para 39 Page 34 of the order has held as follows:

“………. The Commissioner rightly pointed out it is not royalty, it is a revenue expenditure and the entire amount is held to be deductible …………….. “

The same has been reaffirmed by the Hon’ble Karnataka High Court in assessee’s own case in ITA 879/2008, dt. 25-3-2015 (mentioned supra). The decisions relied on by the learned DR in Verizon Communications Singapore PTE Ltd. v. ITO (2014) 361 ITR 575 (Mad) : 2014 TaxPub(DT) 0077 (Mad-HC) FTC (department paper book pages 52 to 91), CIT v. CGI Information Systems & Management Consultants (P.) Ltd. (2014) 226 Taxman 319 (Karn) : 2014 TaxPub(DT) 4134 (Karn-HC)- department paper book pages 126 to 138) and Citrix Systems Asia Pacific Pvt. Ltd. in Re (2012) 343 ITR 1 AAR : 2012 TaxPub(DT) 1651 (AAR) are all cases of third parties and not applicable under the impugned case for the reasons mentioned supra. The decision of the Hon’ble Supreme Court in GVK Industries Ltd. & Anr v. ITO & Anr. [Civil Appeal No.7796/1997] : 2015 TaxPub(DT) 0605 (SC) (department paper book pages 92 to 125) is not applicable as it is a decision on the constitutional validity of section 9(1)(vii)(b) of the Act whereas the impugned case is on the issue of applicability of section 9(1)(vi) of the Act. This decision is not applicable as the subject matter is different and the law involved is different. It has been held by the Hon’ble Supreme Court in CIT v. Sun Engineering Works (P) Ltd. (1992) 198 ITR 297 (SC) : 1992 TaxPub(DT) 1434 (SC) that a decision cannot be read out of context. Hence reliance placed on the decision in GVK Industries is not correct.

The reliance placed by the learned DR on the decision of the Karnataka High Court in the case of CIT v. Wipro Ltd. (2012) 203 Taxman 621 (Karn) : 2012 TaxPub(DT) 0791 (Karn-HC) (department paper book pages 139 to 143) is also incorrect as evident from page 142, para 6 of the order extracted as hereunder wherein the Court has clearly said that the issue does not pertain to shrink wrapped software:

“6 Mere fact that in the instant case, the issue do not pertain to shrink wrapped software or off-the-shelf software and access to database maintained by M/s.Gartner is granted online, would not make any difference in the reasoning assigned by us to hold that such right to access would amount to transfer of right to use the copyright held by M/s.Gartner and the payment made by the respondent to M/s.Gartner in that behalf is for the licence to use the said database maintained by M/s.Gartner and such payment is to be treated as royalty …………….”

Hence the above decision is not applicable to the impugned case.

The decisions relied on by the learned DR of Hon’ble ITAT Bangalore in Kalki Communication Technologies Ltd. v. ITO [ITA 1401 to 1403/B/2013, dt. 15-4-2015] and GE India Industrial I’ Ltd. v. Addl CIT [in ITA 595/B/16, dt. 17-11-2017] are not applicable as the Hon’ble ITAT Bangalore and Hon’ble Karnataka High Court in assessee’s own case have held that the impugned payments are not covered under section 9(1)(vi) of the Act.

The argument of the learned DR that the decision of the Hon’ble Karnataka High Court in assessee’s own case in ITA 507/2002, dt.25-8-2010 & in ITA 879/2008, dt. 25-3-2015 should not be relied on in view of the decision of Hon’ble Karnataka High Court decision in Pr.CIT v. GMR Energy Ltd. [ITA 358 to 360/2018, dt. 8-1-2019] : 2019 TaxPub(DT) 1189 (Karn-HC) wherein the Court has held in page 10 para 7 of the order as extracted under (copy enclosed as Annexure 1):

“7 A judgment of the court becomes binding only when a question arises for consideration, is contested by both sides and thereafter findings are recorded by the Court. None of these conditions have been fulfilled. There is no notice issued to the other side. No question of law has been determined. The appeal was dismissed, as bereft of any substantial question of law. Therefore, the judgment reported in Laney’s case cannot be said to be applicable law or binding for any reason whatsoever. The reliance placed by the tribunal on the judgment in Lancy’s case is misplaced. The judgment in Laney’s case does not render the true position in law. It cannot be considered as a precedent.”

The above ruling is not applicable to the impugned case as the ruling of the Court is binding between the parties. Moreover in the High Court decisions in assessee’s own case the substantial question of law was framed and decided after notice to the parties. The same is evident in from the decision in ITA 507/2002, dt. 25-8-2010 in Para 37 to 39 pages 32 to 34 of the decision:–

“37. The last substantial question of law framed is as under ………………………….. ”

and in ITA 879/2008, 25-3-2015 in Para 171 page 56 Substantial question No. 18 “171. The said substantial questions of law arose for consideration in the assessee’s case itself in ITA 507/02 which was decided on 25-8-2010 where the substantial question of law was answered in favour of the assessee and against the revenue. Accordingly, the said question of law is answered in favour of the assessee and against the revenue.”

Since in the impugned case the substantial questions of law were framed and answered in favour of the assessee, the ruling in Pr. CIT v. GMR Energy Ltd. [ITA 358 to 360/2018, dt. 8-1-2019] : 2019 TaxPub(DT) 1189 (Karn-HC) relied on by the learned DR is out of context and not applicable.”

26. We have heard the rival contentions of the parties and perused the record. If we look into the order passed by the Tribunal in the case of the assessee for the assessment year 2007-08, the Tribunal in para 8.4 had decided the issue by following the decision of the coordinate Bench in favour of assessee for the earlier assessment years 2001-02 and while doing so, had not distinguished the binding decision of the High Court rendered in the case ofSynopsis International Old Ltd. (supra). Similarly for the assessment year 2008-09, the Tribunal while deciding this issue in para 15 & 16 had merely followed the decision for the assessment year 2007-08, which had merely followed the decision of the coordinate Bench for the assessment year 2001-02 & 2002-03. Thus this decision of the coordinate Bench was also passed ignoring the binding decision of the jurisdictional High Court in the matter of Synopsis International Old Ltd. (supra) and also in the matter of Samsung Electronics Co. Ltd. & Ors. (supra). Interestingly, the decision of Samsung Electronics Co. Ltd. & Ors. (supra) was passed by the jurisdictional High Court on 15-10-2011 (345 ITR 494). The decision of Synopsis International Old Ltd. (supra) dated 3-8-2010 as well as of Samsung Electronics Co. Ltd. & Ors., dt. 15-10-2011 were available to both the coordinate Benches for the assessment year 2007-08 and also for assessment year 2008-09. However the coordinate Bench had followed the decision in the case of assessee for the earlier assessment years. The learned AR in the written submissions had also submitted that the decision of Synopsis International Old Ltd. (supra) and Samsung Electronics Co. Ltd. & Ors. (supra) were considered by the Tribunal while deciding the issue in favour of assessee and therefore, the order of coordinate Benches are binding and are required to be enforced by the authorities below as well as by the Tribunal. In our view, respectfully following the coordinate benches decision which are in conflict of High court decision was not correct and further, there is no purpose of perpetuating the wrong and obsolete law by following the decision of the coordinate Bench when it was passed in negation of the law laid down by the jurisdictional High Court. The jurisdictional High Court in the case of Samsung Electronics Co. Ltd. & Ors. (supra) vide its Order, dt. 15-10-2011 had categorically held that payment made for purchase of software were in the form of royalty under section 9(1)(vi) of the Act and therefore, in our view, the decision rendered by the coordinate Bench treating the expenditure incurred for the purchase of software cannot be held that it is not royalty. In fact, as pointed out by the learned DR, the issue which was decided by the coordinate Benches were confined to narrow compass whether the assessee was entitled to depreciation on the expenditure incurred for purchase of software or not? There was no discussion before any of the forums including before the High Court with respect to applicability of provisions of section 9(1)(vi) of the Act or the Explanation introduced into the Act with effect from 1-4-2012. In our view, application of law is required to be decided by the coordinate Bench by discussing the provision of law and also of the judgment and thereafter discussing how the said provision of law and judgment are applicable or not applicable to the facts . In the absence of any discussion on the above two aspects as to the scope of provisions of the Act as well as judgment, it will be unfair to conclude that, the coordinate benches had correctly applied the law in the context of what was now argued before us by the assessee. In fact this Bench was having the occasion to consider the pith and substance of the decisions rendered by the High Court in the matter of Wipro and thereafter had come to conclusion ,which was rightly pointed out by the learned DR, that the issue of royalty was not an issue before the High Court in the matter of Wipro.
27. Though both the parties during the course of arguments had submitted and had argued that this Tribunal will be in contempt if the Tribunal does not follow the judgment of Wipro as per learned AR and the Tribunal will be in contempt if the Tribunal will not follow the judgment ofSamsung Electronics Co. Ltd. & Ors. (supra) as per learned DR. In either case as per the submission of the learned AR/learned DR, the Tribunal would be in contempt. The Tribunal is the creation of statute/ Constitution and has been assigned the duty to examine the facts and apply the correct law without being influenced by the threat of contempt posed by both sides. in contempt. In our humble understanding, the law declared by the Hon’ble High Court in the case of Samsung Electronics Co. Ltd. & Ors. (supra) is the correct exposition of law and therefore, the same is binding on this Tribunal situated under the jurisdiction of Hon’ble Karnataka High Court. We again reiterate that the question decided by the Hon’ble Karnataka High Court in the case of Wipro (Supra) were not decided in the context of question now posed before us, i. e. whether payment made by the assessee for purchase of software was in the form of royalty or not?
28. In the light of the above, we do not find any error on the part of authorities below to apply the decision rendered by the jurisdictional High Court in the matter ofSynopsis International Old Ltd. (supra) and Samsung Electronics Co. Ltd. & Ors. (supra) and accordingly the action on the part of lower authorities is in accordance with law. In the result this ground is decided against the assessee.
29. The Bench records its unhappiness in making submission by both the parties whereby both the parties have tried to browbeat the Bench by saying that the Bench would be in contempt if the Bench would not follow the decision of Wipro/Samsung. In our view, it is the duty of the counsel to bring to the notice of Bench the binding precedent of jurisdictional High Court and of the Supreme Court and demonstrate on the basis of facts and on law, what was the principle laid down by the Hon’ble Supreme Court. The Hon’ble Supreme Court in the case ofSun Engineering Works (P) Ltd. (supra) had held that there are many judgments including the judgment cited by the DR that judgment is not a statute and it is required to be applied on the given facts and further We are of the opinion, that Single change in facts will not only affect the colour and texture of decision, but would also affect outcome of the case.
30. The second objection raised by the learned AR for the assessee is with respect to the order passed by the Officer was barred by limitation (ground No.5 & 6). In this regard, the learned AR had submitted that the assessment year under consideration was 2007-08 and 2012-13 and law amendments were made in section 201 and earlier limitation was not provided under the Act and subsequently by virtue of amendment, limitation was provided and therefore it was submitted that in the absence of limitation provided, the maximum period for passing the order was four years in the light of decision rendered in the matter of Mahindra & Mahindra and further it was submitted that combined order passed by authorities below as separate order was required to be passed distinctly dealing with limitation issue, the taxability and also the issue of DTAA.
31. Per contra, the learned DR had submitted that section 201 makes no distinction between resident and non-resident payee. However, limitation was provided by the proviso only with respect to resident for initiation of proceedings under section 201 for declaring assessee as assessee in default and no limitation was provided by the Act for non-residents. He however relies on decision of coordinate Bench in the matter of Google inITA No. 1511 to 1516/B/2013 where the coordinate Bench have considered various aspects of section 90 and 201 and had held that there cannot be discrimination of non-resident and resident after considering the provisions of the Act. He pointed out that the tribunal also held that limitation provided for the non-resident for declaring assessee as assessee in default is required to be 6 years and he had drawn our attention to the following paras of this tribunal order:–

“91. For the purpose of above, it was submitted that the reasoning which was given by courts/Tribunal referred by the assessee are not available as all the judgments referred by the learned counsel for the assessee were for the period prior to introduction of amendment in section 201(1) of the Act. It was submitted that on the analogy and reasoning given by the Special Bench in the case of Mahindra & Mahindra (supra) in paras.14.2, 17.10 and 17.11 are no more available to the assessee as the said reasoning were given by the Special Bench in the case of Mahendra & Mahendra (supra) in the absence of limitation for initiation of proceedings or passing of order under section 201 of the Act as applicable on said date and therefore, the Special Bench has applied the limitation as provided under section 143(2), 149, 153, 154 and 263 to the proceedings under section 201 of the Act. The special bench after detailed examination in para. 14.2, in the case Mahindra & Mahindra has came to the conclusion that, as there is no limitation provided under un-amended section 201, therefore, period of 4 years will be the reasonable period for initiation of proceedings. Further it was held that the period of completion of proceedings shall be one year form the end of the relevant financial year.

92. On the basis of above it was submitted by the learned Standing Counsel that the reasoning as given by the Special Bench, Hon’ble jurisdictional High Court as well as by other High Courts is no more available for initiation of proceedings against non-resident for period of 4 years, in view of the fact that same logic and reasoning is required to be followed by the Tribunal by laying down the reasonable period of limitation for initiation of proceedings against non-resident entity. In the written submissions it was submitted by the DR as under:

“1. Section 201(3) of the Act has been amended by providing Limitation only in respect of payments made to the resident in India. In the Circular Explaining the Finance Act, it has been specifically referred that the payments made to the nonresidents, no limitation is applicable. In view of the specific provision providing Limitation only to the payments made to the resident in India and not providing any limitation to the payments made to the non-resident, no limitation can be prescribed or read into the section.

2. Without prejudice to the above contention if the contention of the assessee is to be accepted that in the absence of any limitation being provided under the Act, reasonable time limit has to be read into the section as held by various high courts in the case of NHK Japan, Bharath Hotels, the limitation provided for payments to residents has to be applied (six years). Otherwise it amount to discrimination between the payments made to the resident and the non-resident.
3. Insofar as the judgments relied on by the assessee, all the judgments were rendered in respect of the orders passed prior to amendment to section 201(3) of the Act and period of four years has been arrived at on the analogy of various other provisions under the Act. Even in the absence of any limitation being provided under section 201(3) of the Act for payments to the nonresident’s, even certain limitation is to be provided, applying the same analogy as held by the various courts in the judgments relied on by the assessee, period of six years has to be read/considered in view of the legislative interference by introduction of section 201(3) of the Act. In the absence of such an analogy and any other Limitation other than period of six years would amount to discrimination in the limitation between the payment to resident and non-resident.
4. The assessee has relied on the judgment of the Delhi High Court in the case ofBharathi Hotels Ltd. (2016) 76 taxman.com 256 (Del) : 2016 TaxPub(DT) 5134 (Del-HC)to contend that even after introduction of section 201(3) of the Act and in the absence of any limitation provided by the Act in respect of payments to the nonresident’s, the reasonable limitation has to be read into. With great respect, the Delhi High Court has not provided any limitation with respect to payments to non-residents. Without prejudice to the above contention even if the contention of the assessee that in the absence of any limitation, reasonable time limit has to be read into the section is to be accepted, applying the same analogy as held by the various courts relied upon by the assessee and considered by the Delhi High Court, the period of six years provided by the statute to the payments ma1e to resident in India under section 201(3) of the Act would be equally applicable to the payments made to the nonresident’s. If any limitation other than six years is read into the section in respect of payments to non-resident, it would amount to discrimination among the payments to residents and the nonresident.
5. In rebuttal, learned counsel for the assessee submitted that prior to amendment, there was no statutory period for initiation of proceedings against the non-resident. Once the amendment came into force for resident only, it should not implicitly apply to non-resident as it was only restricted to resident. It was submitted that principle of literal interpretation is required to be invoked for the purpose of interpreting this kind of provisions and this tribunal cannot supply the word which is not intended to be supplied by the legislature. Lastly, our attention was drawn to the judgment passed by the Hon’ble Delhi High Court in the case ofBharti Airtel v. UOI (2016) 76 taxman.com.256 (Del) : 2016 TaxPub(DT) 5134 (Del-HC)and special attention was drawn to paras.11,12, 13, 14 & 17.
6. We heard rival submissions and perused material on record available. In our view, before we deal with issue of limitation, it would be relevant to reproduce the reasoning given by the Special Bench in the case ofMahindra & Mahindra(supra) which is as under:

14.2 After considering the rival submissions in the light of the material placed before us and the precedents relied upon it is obvious that sub-sections (1) and (1A) of section 201 do not prescribe any time limit for the initiation of the proceedings or the passing of the order. We find that for the most of the actions under the Act, the particular time limit has been given for the commencement and completion of the proceedings. For example time limit for issuing of notice for the purposes of making assessment is laid down in section 143(2). Similarly time for issuing notice of reassessment has been set in section 149. Section 153 deals with the time provided for the completion of assessment and reassessments. Similarly time limit for rectification of order is given in section 154; for passing revising order under section 263 etc. etc. In such a scenario the question arises that if no time limit is provided, then can any time limit be artificially imported by the authorities. The learned DR has contended that the Tribunal is not competent to lay down any time limit. If this contention is brought to the logical conclusion it will mean that the unlimited time will be available to the Departmental authorities at their sweet-will for taking action under this section. In our considered opinion this contention raised on behalf of the revenue is bereft of any force for the simple reason that certainty is the hallmark of any proceedings. It is beyond our comprehension that how, in the absence of any time limitation provided in the section, the action can be taken in indefinite period. It is wholly impermissible to argue that unlimited time limit be granted to the revenue for taking action under this section. The sword of taxing authorities cannot be allowed to hang, forever, over the head of the tax payers. If this proposition of the learned D.R. is accepted that will give license to the authorities to take action even after 30, 40 or 50 years. The canons of limitation are ordinarily provided expressly in the Act and in their absence, they are to be impliedly inferred by taking into consideration the scheme of the relevant provisions. The learned DR has relied on some cases for suggesting that no time limit be laid down by the Tribunal for the purposes of passing order under section 201(1) or (1A). In our opinion before applying the ratio of any judgment, it is imperative to look into text and the context in which it is rendered. It is equally important to bear in mind the relevant provision in the background of which such judgment was rendered. It is not permissible to pick up a case from one enactment and insist for the application of the ratiodecidendi of that case to an altogether different legislation, which has no resemblance with the former. The Hon’ble Rajasthan High Court in Arihant Tiles & Marbles (P.) Ltd. v. ITO (2007) 295 ITR 148 (Raj) : 2007 TaxPub(DT) 1267 (Raj-HC) has held that the interpretation of any expression used in the context of one statute is not be automatically imported while interpreting similar expression in another statute. Similar view has been earlier expressed by the Hon’ble Supreme Court in CIT v. Venkateswara Hatcheries (P.) Ltd. (1999) 237 ITR 174 (SC) : 1999 TaxPub(DT) 1238 (SC).

95. In para.14.2 (supra inMahindra & Mahindra) it has been held by the Special Bench that in sub-section (1) and (1A) of section 201, no limit for initiation of proceeding or passing of the order is prescribed. Thereafter, the Special Bench noticed the period of limitation provided for issuance of notice under section 143(2), 149, 153, 154, 263 and thereafter it was held that certainty in taxing provision is hall-mark of any proceeding and it was noticed that “it is beyond our apprehension that how in absence of time limit provided in the section, action can be taken in indefinite period. It is impermissible to argue that no time limit be granted to revenue.”
96. Thus it is clear from reading of the abovementioned paragraphs that the logic and reasoning given by the Special Bench for coming to reasonable period of 4 years was based on analysis of the provisions viz., 143, 147, 148, 149 and 153 and absence of time limit under section 201(1) of the Act. In our view, there is a change in the position after passing of judgment by the Special Bench as the section 201 has been amended by the legislature and now specific provision is incorporated by the Legislature to dealing with limitation or initiation of proceedings under section 201 of the Act in the case of resident , however no period of limitation is provided in the case of non-resident.
97. Recently Allahabad high court in the matter ofMass Awash (P.) Ltd. (2017) 83 taxmann.com 306 (All) : 2017 TaxPub(DT) 1885 (All-HC)had occasion to deal with all judgments referred before us and thereafter it was held as under :

“71. In the entirety of the discussion, we find it difficult to hold that period consumed by revenue in prosecuting matter against main payee would have resulted in accrual of a right upon assessee so as to deprive revenue from proceeding under section 201(1) and 201(1A), though, admittedly, Assessee-petitioner has committed default by not complying section 195 by non-deduction of TDS on the amount paid to Smt. Nidhi Raman. Defence of petitioner that it was misrepresented by seller by not disclosing by any of them that she was an N.R.I. would equally be available to revenue also for explaining delay and also their bonafide is fortified that they make all possible efforts to recover entire amount of tax from person liable to pay tax and as a last resort they have sought to exercise power under section 201(1) and 201(1A) against Assessee.

72. The view taken by Delhi High Court that period of limitation of four years, as applicable for making Assessment under section 147, should be made applicable for exercising power under section 201(1) and 201(1A), we find it difficult to subscribe inasmuch as we do not impose a fixed time and prescribe a period of limitation, which has not been prescribed by Legislature in its wisdom. Such legislative action, by way of judicial precedent, in our view, would not be appropriate exercise of judicial review under article 226 of Constitution. As we have already discussed above, even Supreme Court says that if time period is not prescribed for exercise of power, a reasonable time would depend upon the facts of each case and cannot be quantified or prescribed like a period of limitation.
73. InUttam Namdeo Mahale(supra), the judgment delivered by Three Judge Bench, Court has said as under:

“Mr. Bhasme, learned counsel for the appellant, contends that in the absence of fixation of the rule of limitation, the power can be exercised within a reasonable time and in the absence of such prescription of limitation, the power to enforce the order is vitiated by error of law. He places reliance on the decisions in State of Gujarat v. Patil Raghav Natha; Ram Chand v. UOI and Mohd. Kavi Mohamad Amin v. Fatmabai Ibrahim. We find no force in the contention. It is seen that the order of rejectment against the applicant has become final. Section 21 of the Mamlatdar’s Court Act does not prescribe any limitation within which the order needs to be executed. In the absence of any specific limitation provided there under, necessary implication is that the general law of limitation provided in the Limitation Act (Act 2 of 1963) stands excluded. The Division Bench, therefore, has rightly held that no limitation has been prescribed and it can be executed at any time, especially when the law of limitation for the purpose of this appeal is not there. Where there is statutory rule operating in the field, the implied power of exercise of the right within reasonable limitation does not arise. The cited decisions deal with that area and bear no relevance of the facts.”

(Emphasis added)

74. We also find that Bombay High Court has taken a different view in the matter of prescribing limitation and Calcutta High Court has declined to prescribe any such limitation.
75. In our view, the dictum laid down by Apex Court in the cases referred above is very clear. While exercising power of judicial review in the case like present one, it would be appropriate to consider whether power has been exercised by competent authority within a reasonable period and whether delay is unjust, arbitrary, whimsical or it is for valid reasons. If Court finds that delay in exercise of power is for valid andbona fidereasons, alleged delayed exercise of power cannot be held invalid.”
76. The contrary judgment of Hon’ble Delhi High Court in the matter ofBharti Airtel Ltd. v. UOI (2016) 76 taxman.com.256 (Del) : 2016 TaxPub(DT) 5134 (Del-HC)was relied upon by the learned A.R. The DR relied upon Bhura Exports Ltd. (2011) 13 taxmann.com 162 (Cal) : 2014 TaxPub(DT) 2965 (Cal-HC) and Mass Awash (P.) Ltd. (2017) 83 taxmann.com 306 (All) : 2017 TaxPub(DT) 1885 (All-HC)

In our view the decision of the Special Bench and other judgments apply with equal force in favour of both i.e. resident as well as non-resident providing period of limitation of four years from the end of the financial year for initiation of proceedings on the analogy and principle mentioned in section 147, 148, 153 etc. prior to amendment in law. However there are contrary judgments in favour of the revenue post amendment which does not provide any limitation for initiation of proceedings under section 201 of the Act.

99. In view thereof, there is conflict of judgments of various courts. One set of judgment are in favour of the assessee and the other set of judgments are in favour of the Revenue. There is no direct judgment after the amendment of section 201, by the jurisdictional High Court which deals with the issue of initiation of proceedings under the amended provision of 201. In the absence of any binding judgment by the Hon’ble jurisdictional High Court, we are bound to adopt the same logic as upheld by the jurisdictional High Court, by treating the resident and the non-resident at par after relying upon the decision of Special Bench in the matter ofMahindra & Mahindra(supra), in case relating to pre amendment assessment year. In our opinion, after the amendment of law same logic and limitation is required to be applied for non-resident well as resident thus treating non-resident at par with resident. In other words, period of imitation for initiation of proceedings for resident as well as non-resident under section 201 should be 6 years from the end of the financial year. Further the payer is required to maintain books of account and deduct TDS for both resident as well as non-resident. No Separate treatment had been envisaged under the Act, for the payer paying to a non-resident.
100. Further, the non-resident payee cannot be worse off than resident payee under the Income Tax Act and under the provisions of DTAA. Law provides non-discrimination of non- resident with resident and requires equal treatment of non-resident with resident under the provisions of DTAA. It cannot be said that a nonresident would be given special and beneficial treatment in comparison to the resident or treated unequally by providing unlimited time to initiate proceedings under section 201 of the Act. In our opinion, the Constitution of India provides equal treatment and equal protection of law within the territory of India. If the law requires initiation of proceedings within 6 years from the end of financial year for the resident, same treatment is required to be given to the non-resident. For this proposition, we may rely upon on the judgment of Hon’ble Supreme Court inDr. Subramanian Swamy v. Director CBI (2014) 8 SCC 682 (SC)in para 22.
101. Keeping in mind the principles set out by the Hon’ble Supreme Court inDr. Subramanyian Swamy(supra), if we examine the scheme of section 201 Act, the resident of India cannot be discriminated vis-a-vis. The non-resident under Income Tax Act and similarly under DTAA non-resident cannot be discriminated viz-a-viz resident. If we accept the argument of the learned AR that the limitation of 4 years, as held provided by the Special Bench would continue to apply to non-resident even after post amendment to section 201, in that eventuality, hostile discrimination towards the resident-payee will creep in i.e., the limitation for initiation under section 201 against the resident payee would be six years and against the non-resident payee it would be four years. This is neither the intention of the legislature nor the mandate of the Special Bench or the judgment referred herein above. On the contrary, if we accept the argument of the learned DR that there is no limitation for initiation of proceedings under 201, in view of Hon’ble Calcutta and Allahabad High Court judgments (supra), if the payee is non-resident then, it will amount to discrimination against the non­resident as the proceedings may be initiated against the resident within four years and there is no limitation for initiation of proceedings against the non-resident. Therefore, the arguments of both the assessee as well as the revenue cannot be accepted. If we accept the argument of one it would tantamount to discriminating either the resident or the non­resident, which is not permissible in the eyes of law.
102. The assessee / payer in the eyes of law whether making payment to resident or non-resident under the provisions of section 201, constitutes one class only. Accordingly, the same period of limitation is required to be applied equally for payee i.e. Resident or non-resident, Law abhor vacuum and uncertainty.
103. There is no classification given under section 201. Section 201(1) only talks about person who is required to deduct any sum for the payment made. Therefore, borrowing the same reasoning of the special bench, whereby it held that the same period of limitation should be applied to resident as well as non-resident, we are of the considered view that limitation for initiation of proceedings for non-resident payee should be 6 years instead of no-limitation as is the limitation for resident-payee. In view of the above ground No. 12 in assessment year 2007-08 deserves to be dismissed and accordingly we dismiss the same.”
104. On the basis of the above, it was submitted that once common question of law was raised before the lower authorities with respect to applicability of DTAA, provision of section 90 as well as limitation, common order was passed by the authority and there was no prohibition in law for passing a common order for the common question of law and there is no difference in facts in all the years. He had also drawn our attention to section 143(1) and section 201 and submitted that if comparison is drawn between the two provisions, then the law does not prohibit any passing of the common order under section 201.
105. In rebuttal, the learned AR had filed the written submissions as under:–

“Further it is the contention of the assessee that passing a single order for multiple assessment years is unsustainable and untenable under the circumstances. This contention is supported by perusal of the following sections:

Section 2(9) of the Act defines “Assessment year” as under:

(9) “assessment year” means the period of twelve months commencing on the 1st day of April every year

Section 3 of the Act defines “Previous year” as “previous year” means the financial year immediately preceding the assessment year

Section 139(1) of the Act reads as under:

“139. (1) (very person,–

(a) being a company or a firm: or

(b) being a person other than a company or a firm, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax,

shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed ……………….

Section 201(1) of the Act reads as under:

(1) Where any person, including the principal officer of a company,–

(a) who is required to deduct ally sum in accordance with the provisions of this Act; or

(b) referred to in sub-section (IA) of section 192, being an employer,

does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax:

Provided that any person, including the principal officer of a company, who fails to deduct the whole or any part of the tax in accordance with the provisions of this Chapter on the sum paid to a resident or on the sum credited to the account of a resident shall not be deemed to be an assessee in default in respect of such tax if such resident–

(i) has furnished his return of income under section 139;

(ii) has taken into account such sum for computing income in such return of income; and

(iii) has paid the tax due on the income declared by him in such return of income,

and the person furnishes a certificate to this effect from an accountant ill such form as may be prescribed: …………….

Section 201(3) of the Act reads as under:

“(3) No order shall be made under sub-section (1) deeming a person to be an assessee in default for failure to deduct the whole or any part of the tax from a person resident in India, at any time after the expiry of seven years from the end of the financial year in which payment is made or credit is given.

Thus bare perusal of the above sections implies that an order under section 201(1) can be passed only in respect of a particular previous year/assessment year. It is a well settled principle by the judiciary that each assessment year is separate, distinct and independent. The assessee places reliance on the decision of Allahabad HC in Mohd. Ayub v. ITO – (2012) 346 ITR 30 (All) : 2012 TaxPub(DT) 2381 (All-HC) – paper book index IV -pages 411 to 413 wherein the Court has held that each assessment year is an independent unit of assessment and the provisions of the Act applied separately. The limitation for passing the order as per section 201(3) has also to be tested for each previous year separately. Thus the impugned common order passed by the assessing officer under section 201(1) & 201(1A) dt. 15-10-2013 for multiple assessment years being assessment year 2007-08 to 2012-13 are had in law and requires to be vacated.

Further the entire tax liability has been fastened on the assessee based on retrospective amendment to Explanation 4 of section 9(1)(vi) inserted by Finance Act 2012 with read effect from 1-6-1976 for alleged non deduction of TDS under section 195 of the Act. Section 195 of the Act reads as under:

195. (1) Any person responsible for paying to a non-resident, not being a company, or to a foreign company, any interest (not being interest referred to in section 194LB or section 194LC) or section 194LD or any other sum chargeable under the provisions of this Act not being income chargeable under the head “Salaries”) shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates in force :.”

As per the above section the obligation of deduction of TDS if any can be discharged in the light of law as it stands at that point of time. An assessee cannot be treated as an “assessee in default” relying on subsequent amendments made to the Act having retrospective effect. The assessee vide written submission dt. 22-11-2017 in para 4 has relied on several decisions wherein it is held that retrospective effect cannot be imposed when it comes to deduction of TDS. The assessee also places reliance on the decision of the Hon’ble Allahabad High Court in the case of Jagran Prakashan Ltd. v. DCIT (2012) 345 ITR 288 (All) : 2012 TaxPub(DT) 2050 (All-HC) (Index of Decisions–H pages 110 to 150) which has been affirmed by the Hon’ble Supreme Court in SLP Civil 9861/2013, dt. 5-5-2014 (Index of Decisions — II page 151). While dealing on the issue on assessee-in-default, the High Court has held as under:

” 74. From the above, it is clear that deductor cannot be treated an assessee in default till it is found that assessee has also failed to pay such tax directly. In the present case, the Income tax authorities had not adverted to the Explanation to section 191 nor had applied their mind as to whether the assessee has also failed to pay such tax directly. Thus, to declare a deductor, who failed to deduct the tax at source as an assessee in default, condition precedent is that assessee has also failed to pay tax directly. The fact that assessee has failed to pay tax directly is thus, foundational and jurisdictional fact and only after finding that assessee has failed to pay tax directly, deductor can be deemed to be an assessee in default in respect of such tax. It is relevant to notice here that Explanation to section 191 is confined only to the amount of tax which was required to be deducted.”

Thus on this count also, the tax liability fastened requires to be deleted.”

34. We have heard the rival submissions and perused the record. The grounds of appeal raised before the learned Commissioner (Appeals) were similar in all the assessment years under consideration before us and we are not reproducing hereinbelow the common grounds raised by the assessee in each of the assessment years for the sake of brevity.
35. From a perusal of the above, it is amply clear that assessee has raised common grounds of appeal feeling aggrieved by the order of assessing officer, and on the issue of DTAA, the assessee had raised general ground and therefore, in our considered opinion, there is no prohibition for the assessing officer to pass a common order for all the assessment years. In all the cases before the assessing officer, the payee (recipient) was non-resident. It is not disputed that payment was made for purchase of software. It is also not disputed before the assessing officer that tax was not deducted as mandated by law before making payment. Therefore, all the necessary conditions as required under law for invoking provisions of section 201 were in place and therefore in our view, the action on the part of lower authorities is in accordance with law. We hold accordingly. Regarding the arguments of the learned AR of the assessee that the orders passed by the assessing officer are time barred, we respectfully follow the tribunal order in the case of Google as reproduced above and hold that these orders are not time barred as these are passed within six years.
36. In the result, all the six appeals filled by the assessee in the proceedings under section 201 & 201 (1A) are dismissed.
37. Now we take up six appeals filed by the assessee in the proceedings under section 154 i.e.ITA Nos. 18 to 23/Bang/2017. Identical Grounds raised by the assessee in these six appeals are already reproduced above in Para 10.
38. Both sides were heard. Regarding Ground No. 4 to 6 in which this is the contention raised that these orders under section 154 are bad in law, we find that in addition of grossing up of tax under section 195A for which, there may be an argument that it is not an apparent mistake rectifiable under section 154, the assessing officer has also increased the demand in respect of Surcharge and Education Cess and it is a fact that the demand of TDS is as per provision of Income Tax Act in some years where the rate of withholding tax as per DTAA is higher and hence, not raising demand in respect of Surcharge and cess is an apparent mistake rectifiable under section 154 and therefore, we hold that these orders under section 154 are not bad in law although some demands raised in these orders may be bad in law and the same can be deleted on merit. These Grounds Nos. 4 to 6 are rejected.
39. As per Ground No. 1 to 3 raised by the assessee in these appeals, it is contended that the learned Commissioner (Appeals) has erred in holding that rate of tax is 15% in USA, UK, Austria and Canada and 20% in Spain because as per the assessee it is 10% for these countries also. In this regard, we find that as per Para 13 of the combined impugned order, learned Commissioner (Appeals) has directed the assessing officer to levy surcharge and cess only in respect of royalty payments made to vendors which are resident of such countries with which the DTAA with India allows withholding of more than 11.33% and in respect of other payments, he has deleted the levy of surcharge and cess. Hence, we find no merit ion these grounds also and these are also rejected.
40. As per Ground No. 7, the dispute raised is about interest under section 201 (1A). This is a settled position of law as per the judgment of Hon’ble apex court rendered in the case ofHindustan Coca Cola Beverage Pvt. Ltd. v. CIT (2007) 293 ITR 226 (SC) : 2007 TaxPub(DT) 1452 (SC) that if tax is paid by the deductee, demands from deductor for tax under section 201 (1) cannot be raised but the deductor has to pay interest under section 201(1A) till the date of payment taxes by the deductee. Hence, in our considered opinion, the ratio of this judgment is this that if tax was deductible by the payer, interest under section 201 (1A) is payable by him till the payment of such tax by him or by the payee. Accordingly, we hold that there is no merit in Ground No. 7 and it is also rejected.
41. In the result, all the six appeals filled by the assessee in the proceedings under section 154 are dismissed.
42. Now we take up six appeals filed by the revenue in the proceedings under section 154 i.e.ITA Nos. 2335 to 2339/Bang/2016. Identical Grounds raised by the revenue in these six appeals are already reproduced above in Para 9.
43. Both sides were heard. Regarding Ground No. 1 raised by the revenue in these appeals, it is seen that this is a general ground for which no separate adjudication is called for. Regarding Ground Nos. 2 to 5, we find that Para No. 8 of the combined impugned order of Commissioner (Appeals) is relevant in this regard and hence, we reproduce the same as under:–

“8. I have gone through the agreement between Microsoft Licensing, GP (“MS”) and the appellant containing Master Licensing Agreement. The agreement clause cited by the assessing officer and that quoted by the appellant are the same as per the agreement produced before me. As per the plain reading, the clause only speaks of the agreement between the parties to the effect that Wipro may deduct taxes required to be paid on remittances and pay it to the authority. As per the Master Agreement with. Microsoft, there is no indication of any definite amount to be paid to the vendor irrespective of taxes. There is no basis to infer that the appellant had to bear the cost of taxes payable on remittances. Moreover, the appellant is right in contending that the terms of one agreement could not be applied to payments pertaining to other vendors. Raising of additional demand based on facts relating to one payment and applied to other payments requires inference and extrapolation. It could not be called a mistake apparent from record. Therefore, section 195A was not applicable on the facts and circumstances of the case. The additional liability due to grossing up of the tax with remittances as made by the assessing officer in order under section 154 is deleted.

Ground No. s 6 and 7 are allowed.”

44. We find that in this Para, a categorical finding is given by Commissioner (Appeals) that as per the agreements between the assessee company and various parties to whom payments were made, the assessee company had to deduct TDS if required by law or by the income tax authorities and hence, there is no basis to infer that the assessee company had to bear the cost of taxes payable on remittances was to be borne by the assessee company. This finding of Commissioner (Appeals) could not be controverted by the learned DR of the revenue and we find no infirmity in the ultimate finding of Commissioner (Appeals) that there was no apparent mistake in the order passed by the assessing officer which can be rectified under section 154 On this aspect, we uphold the order of Commissioner (Appeals). These grounds are rejected.
45. Ground No. 6 is about relief allowed by learned Commissioner (Appeals) in respect of levy of surcharge and cess by directing the assessing officer that surcharge and cess should be levied only in the cases where the non resident vendors are residents of countries with which DTAA allows withholding rate of more than 11.33%. This is the case of the department that in respect of royalty payment to those countries also for which DTAA prescribes withholding tax rate of 10%, surcharge and cess should be levies because no proof is brought on record by the assessee about proof of residency of those parties in those countries. In this regard, we find that in Para 13 of the impugned order, it is stated by Commissioner (Appeals) that the assessee has submitted the details regarding software payments, name of vendor, country of vendor and amount paid and he has also stated in the same Para that he has gone through the details carefully. He has noted in the same Para that it was claimed by the assessee before him that withholding tax rate for payment of royalty to all countries in dispute except Greece is 10% but he has held that this claim is not correct and he has noted the withholding tax rate on payment of Royalty in respect of USA, UK, Austria, and Canada is 15% and the same for Spain is 20%. This shows that learned Commissioner (Appeals) has not accepted the claim of the assessee without examination and verification. Hence, if this is the contention of the revenue that the vendors of Ireland, Netherland, Singapore, Israel, France, Germany, Australia and Belgium etc. are not residents of respective countries, the revenue should have brought on record some evidence in this regard. In the absence of any evidence even in one case that the vendor of a country of 10% withholding tax rate is in fact resident of some other country having higher withholding tax rate, we do not find any reason to interfere in the order of Commissioner (Appeals). This Ground is also rejected.
46. In the result, all 6 appeals filed by the revenue are dismissed.
47. In the combined result, all 12 appeals filed by the assessee and all 6 appeals filed by the revenue are dismissed.