Tax v. New Skies Satellite Bv (2016) 382 Itr 114

$~28 *IN THE HIGH COURT OF DELHI AT NEW DELHI+ITA 375/2022 THE COMMISSIONER OF INCOME TAX - INTERNATIONALTAXATION 2 DELHI..... AppellantThrough:Mr.RuchirBhatia,Sr.StandingCounsel for Revenue.versus NEW SKIES SATELLITE BV ..... Respondent Through:Ms. Ananya Kapoor & Mr. SalilKapoor, Advocates. %Date of Decision: 28[th]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 impugnedorder dated 30[th]September, 2019 passed by the Income Tax AppellateTribunal (‘ITAT’) in ITA No. 5054/Del./2019 for Assessment Year 2016-17. 2.Learned counsel for the Appellant states that the ITAT has erred inholding that receipts of the assessee, earned from providing satellitetransmission services do not fall within the term 'royalty' under the India-Netherlands DTAA even after insertion of Explanation 5 and 6 to section9(1)(vi) of the Income Tax Act,1961 by Finance Act, 2012 and withoutconsidering the position of India on OECD commentary on this issue. 3.Admittedly, the question of law urged in the present appeal is covered ITA 375/2022 Page 1 of 2 by the decision of this Court in assessee’s own case in Director of Income Tax vs. New Skies Satellite BV (2016) 382 ITR 114. 4.Learned counsel for the Appellant states that the Revenue has notaccepted the aforesaid decision and has preferred a Special Leave Petitionagainst the same being Civil Appeal No.1380/2016. 5.Though the judgment of this Court has been challenged and ispending adjudication before the Supreme Court, yet there is no stay of thesaid judgment till date. 6.Consequently, in view of the judgments passed by the Supreme Courtin Kunhayammed and Others vs. State of Kerala and Another, (2000) 6SCC 359 and Shree Chamundi Mopeds Ltd. Vs. Church of South IndiaTrust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1, thepresent appeal is covered by the judgment passed by the learned predecessorDivision Bench in New Skies Satellite BV (supra). 7.Accordingly, no substantial question of law arises for consideration inthe present appeal and the same is dismissed. 8.However, it is clarified that the order passed in the present appealshall abide by the final decision of the Supreme Court in the aforesaid CivilAppeal. MANMOHAN, J SEPTEMBER 28, 2022/msh MANMEET PRITAM SINGH ARORA, J ITA 375/2022