+Ita 911/2019-The Commissioner Of Income Tax Taxation-2 . . Ppe Anthrough: Mr. Ruchir Bhatia, Advocate v. Zte Corporation

0 $-39 & 4 *IN THE HIGH COURT OF DELIH AT NEW DELHI +ITA 911/2019-THE COMMISSIONER OF INCOME TAX TAXATION-2 . . ppe anThrough: Mr. Ruchir Bhatia, Advocate. versus ZTE CORPORATION --Respondent Through: Mr. Harpreet Singh Ajmani andMr. Rohan Khare, Advocates. +ITA 817/2019 THE COMMISSIONER OF INCOME TAX Through: Mr. Ruchir Bhatia, Advocate.Through: Mr. Ruchir Bhatia, Advocate. versus ZTE CORPORATION ...Respondent Through: Mr. Harpreet Singh Ajmani andMr. Rohan Khare, Advocates. CORAM:HON'BLE MR. JUSTICE VIPIN SANGHIHON'BLE MR. JUSTICE SANJEEV NARULAORDERo/„ 18.10.2019 CM Nn 4^711/2019 TTA 911/2019 (exemption) in ITA (exemption) 1. Exemption allowed, subject to all just exceptions. 2. The application stands disposed of. C.M. No. 45712/2019 (delav^ in ITA 911/2019 3. By this application the applicant seeks condonation of delay of 61 days inre-filing the application. For the reasons stated in the application, the delayis condoned. 4. The application stands disposed of in the aforesaid terms. ITA 911/2019 & ITA 817/2019 5. Both these appeals have been preferred by the Revenue. The commonorder dated 15.02.2019 passed by the Income Tax Appellate Tribunal in ITA817/2019 relates to the assessment year 2015-16 and ITA 911/2019 relatesto the assessment year 2013-14. This Court has already considered theissues sought to be raised by the Appellant in Commissioner of IncomeTax, International Taxation v. ZTE Corporation, 2017 392 ITR 18 (Delhi).Thereafter, we have also rejected the appeals preferred by the Revenue inITA 763/2019, ITA 769/2019 and ITA 771/2019 vide order dated26.08.2019. The following order came to be passed on that date: "ITA 763/2019. ITA 769/2019 & ITA 771/2019 3. At the outset, Mr. Ruchir Bhatia learned counsel for theAppellant very fairly states that the issues/questions framed inthe present appeals are covered by the decision of this Court inCommissioner of Income Tax, International Taxation v. ZTECorporation (2017) 392 ITR 80 (Delhi). The questions of lawframed in the said appeal were as follows: "(7) Are the ITAT's findings with respect to interpretation ofArticle 12 (3) of the Indo-China Double Taxation AvoidanceAgreement (DTAA), in the light of Explanations 5 & 6 toSection 9 (1) (vi), erroneous in law. (ii) Is the impugned order correct in its interpretation ofSection 234B of the Income Tax Act, 1961, in the facts andcircumstances of the case." 4. The findings returned by this Court in the said decision read asfollows: "22. In the present case, the facts are closely similar toEricson. The supplies made (of the software) enabled theuse of the hardware sold. It was not disputed that withoutthe software, hardware use was not possible. The mere factthat separate invoicing was done for purchase and othertransactions did not imply that it was royalty payment. Insuch cases, the nomenclature (of license or some other fee)is indeterminate of the true nature. Nor is the circumstancethat updates of the software are routinely given to theassessee's customers. These facts do not detract from thenature of the transaction, which was supply of software, inthe nature of articles or goods. This court is also notpersuaded with the submission that the payments, if notroyalty, amounted to payments for the use of machinery orequipment. Such a submission was never advanced beforeany of the lower tax authorities; moreover, even in Ericson(supra), a similar provision existed in the DTAA betweenIndia and Sweden. 23. As far as the question of interest payments and Section234B is concerned, the court is of the opinion that the issueis covered by GE Packaging (supra). This question of lawtoo is answered against the revenue, and in favour of theassessee." 5'. In the present case as well, the same DTAA is underconsideration as was considered by this Court in ZTECorporation (supra). Following the aforesaid decision, wedismiss the present appeals." 6. Following our earlier decisions, we find no fresh question of law arisesfor our consideration. 23. As far as the question of interest payments and Section234B is concerned, the court is of the opinion that the issueis covered by GE Packaging (supra). This question of lawtoo is answered against the revenue, and in favour of theassessee." 5'. In the present case as well, the same DTAA is underconsideration as was considered by this Court in ZTECorporation (supra). Following the aforesaid decision, wedismiss the present appeals." 6. Following our earlier decisions, we find no fresh question of law arisesfor our consideration. 7. In view of the above, these appeals are dismissed. OCTOBER 18, 2019 nk VIPHS SANGHI, JSANJEEV NARUM, J