DDIT vs. SET Satellite (Singapore) (ITAT Mumbai)

DATE: (Date of pronouncement)
DATE: July 15, 2010 (Date of publication)

Click here to download the judgement (set_satellite_PE_royalty.pdf)

Royalty paid by non-resident does not “arise” in India if there is no “economic link” between the PE and the royalty

The assessee, a Singaporean company with a PE in India, obtained rights from the Global Cricket Council, Singapore, for telecast of cricket matches in India. The AO took the view that the payment for the said rights constituted “royalty” in the hands of GCC u/s 9(1)(vi) & Article 12(7) of the India-Singapore DTAA and that it had arisen in India on the ground that the payer had a PE in India and there was a direct nexus between collection of advertisement revenue in India and payment for the rights. The assessee was held liable u/s 201 for failure to deduct tax u/s 195. On appeal, the CIT (A) disagreed with the AO. On appeal by the department to the Tribunal, HELD dismissing the appeal:

Assuming the payment for obtaining cricket telecast rights is “royalty”, under the first limb of Article 12(7) of the DTAA, royalties can be said to have arisen in India only if the payer is a resident of India. This condition is not fulfilled as the assessee was a non-resident. Under the second limb of Article 12(7), payments made by a non-resident are deemed to arise in India if the non-resident has a PE in India with which the liability to pay the royalties is incurred and such royalties are borne by the PE. This condition is also not fulfilled because the mere existence of a PE in India does not mean that royalties arise in India. In addition to the existence of PE, it is essential that liability to pay such royalties has been “incurred in connection with” and is “borne by” the PE of the payer in India. There must be an “economic link” between the liability for payment of such royalties and PE. As there was no economic link between the payment of royalties and the PE of the assessee in India, the payments to GCC are not incurred “in connection” with the PE in India. Further, the PE was also not involved in any way with the acquisition of the right to broadcast the cricket matches, nor did the PE bear the cost of payments to GCC. Thus the payments to GCC were not “borne by” the PE in India.

Note: Stanley Keith Kinnett 278 ITR 155 & Elitos S.P.A 280 ITR 495 was followed where it was held that if the burden of payment is not borne by the PE, the amount is not taxable in India.