Manmohan, J (Oral v. Ita

$~45 *IN THE HIGH COURT OF DELHI AT NEW DELHI +ITA 348/2022 COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION)-2 ..... AppellantThrough:Ms.Easha Kadian, Advocate forMr.Sanjay Kumar, Sr.StandingCounsel for the Revenue.versus M/S. NAGRAVISION S.A...... RespondentThrough:Ms.Ananya Kapoor with Mr.VibhuJain, Advocates.%Date of Decision: 21[st]September, 2022 CORAM: HON'BLE MR. JUSTICE MANMOHANHON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA J U D G M E N T MANMOHAN, J (Oral): 1.Present income tax appeal has been filed challenging the order dated31[st]January, 2022 passed by the Income Tax Appellate Tribunal (‘ITAT’) inITA No. 140/Del./2021 for the Assessment Year 2017-18. The relevantportion of the impugned order is reproduced hereinbelow:- “4.2 It was also claimed by the Appellant that issues raised ingrounds no 3 and 4, are squarely covered by the order of theHon'bleTribunalinAppellant'sowncasei.e.ITANo.9130/Del/2019 AY 2016-17 decided on 06-07-2020 andrecent Judgement of the Hon'ble Apex Court in EngineeringAnalysis Centre for Excellence Private Limited Vs Commissionerof Income Tax & Another - AIR 2021 SC 124/432 ITR 471(SC).grounds no 3 and 4, are squarely covered by the order of theHon'bleTribunalinAppellant'sowncasei.e.ITANo.9130/Del/2019 AY 2016-17 decided on 06-07-2020 andrecent Judgement of the Hon'ble Apex Court in EngineeringAnalysis Centre for Excellence Private Limited Vs Commissionerof Income Tax & Another - AIR 2021 SC 124/432 ITR 471(SC). ITA No.348/2022 4.3 The Ld. DR did not refute the claim of the Appellant. 4.4 We have given thoughtful consideration to the submissions ofthe Appellant and perused the order and judgment as referredabove by the Appellant and observed that the issues underconsideration as raised vide grounds no. 3 and 4 in this appeal,are identically the same, as have been decided by the Hon’bleTribunal in Appellant’s own case i.e. ITA No.9130/Del/2019 forthe previous AY 2016-17 decided on 06-07-2020 and evencovered by the recent judgment of the Hon’ble Supreme Court inthe case of Engineering Analysis Centre for Excellence PrivateLimited vs. Commissioner of Income Tax & Another (Supra).” 2.Learned counsel for the Appellant states that the ITAT has erred inholding that the income from supply of CAS and middleware products toindian customers, does not fall under the 'royalty' as defined under Section9(l)(vi) of the Income Tax Act, 1961 (‘the Act’) and Article 12(3) of theIndia- Swiss DTAA. 3.Admittedly, the questions of law urged in the present appeal arecovered by the decision of the Supreme Court in the case of EngineeringAnalysis Centre of Excellence Pvt. Ltd. Vs. CIT 432 ITR 471 SC. 4.At this stage, learned Counsel for the Appellant states that the revenuehas not accepted the decision in Engineering Analysis (supra) and haspreferred a review petition against the same. 5.Though the review petition in Engineering Analysis (supra) ispending before the Supreme Court, yet there is no stay of the said judgmenttill date. 6.Consequently, in view of the judgments of the Supreme Courtin Kunhayammed and Others Vs. State of Kerala And Another, (2000) 6SCC 359 and Shree Chamundi Mopeds Ltd. Vs. Church of South India ITA No.348/2022 Page 2 of 3 Trust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1, thepresent appeal is covered by the judgment of the Supreme Court inEngineering Analysis (supra).7.Accordingly, no substantial question of law arises for consideration inthe present appeal and the same is dismissed. MANMOHAN, J SEPTEMBER 21, 2022KA MANMEET PRITAM SINGH ARORA, J ITA No.348/2022 Page 3 of 3