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THE 2ND^ KIIT UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2014
5 TH^ – 7 TH^ SEPTEMBER 2014
BEFORE THE HON’BLE HIGH COURT OF BOMBAY
CHEETAH AND CHETAK PVT. LTD. (APPLICANT)
MEMORIAL FOR THE RESPONDENT- INCOME TAX AUTHORITY
THE 2ND^ KIIT UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2014
5 TH^ – 7 TH^ SEPTEMBER 2014
BEFORE THE HON’BLE HIGH COURT OF BOMBAY
CHEETAH AND CHETAK PVT. LTD. (PETITIONER)
V.
INCOME TAX AUTHORITY (RESPONDENT)
ON SUBMISSION TO THE REGISTRY OF THE COURT
OF THE HON’BLE HIGH COURT OF BOMBAY
MEMORIAL FOR THE PETITIONER - CHEETAH AND CHETAK PVT. LTD.
TEAM CODE : P 115
[TABLE OF CONTENTS]
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TABLE OF CONTENTS
INDEX OF AUTHORITIES ...................................................................................................... IV
Singapore Case........................................................................................................................... iv Journal Article............................................................................................................................ iv Books ......................................................................................................................................... iv UK Cases ................................................................................................................................... iv Other Authorities ........................................................................................................................ v Indian Cases ................................................................................................................................ v CBDT Circular ......................................................................................................................... viii
STATEMENT OF JURISDICTION ......................................................................................... IX
STATEMENT OF FACTS .......................................................................................................... X
STATEMENT OF ISSUES ...................................................................................................... XII
SUMMARY OF ARGUMENTS ............................................................................................. XIII
ARGUMENT ADVANCED ......................................................................................................... 1
I. THE WRIT PETITION FILED IS MAINTAINABLE BEFORE THE HIGH COURT ........ 1 A. The writ is independent of the existing alternative remedies ............................................. 1 B. Writ petition is maintainable when there is infringement of fundamental rights............... 1 C. Alternative remedy is not adequate for challenging constitutionality................................ 2 II. The consideration under the license agreement does not constitute royalty. ......................... 2 A. The concerned transaction comes under the purview of the Singapore-India DTAA. ...... 3 i. Zeon is a resident according to the definition of Resident under Sec. 2 of the I-T Act.. 3 ii. The lack of a TRC does not have any bearing on its resident status. ............................. 4
[TABLE OF CONTENTS]
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B. The returns have been incorrectly reassessed by the assessing officer under sec. 147 of the i-t act. .............................................................................................................................. 13 i. The deduction has been wrongly disallowed. ................................................................ 13 ii. The rate of interest has been wrongly imposed on the petitioners ............................... 13 IV. The petitioner has been wrongly charged as an assessee-in-default................................... 14 A. The petitioner has been wrongly charged as an assessee-in-default under Sec. 201 of the I-T Act as he was not required to deduct any sums. ............................................................. 14 B. Deduction was an impossible task under the then prevailing law.................................... 14 C. The petitioner was under a bona fide belief that the consideration under the agreement did not amount to royalty. ..................................................................................................... 15
PRAYER ................................................................................................................................... XIV
[INDEX OF AUTHORITIES]
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INDEX OF AUTHORITIES
SINGAPORE CASE
NB v. Comptroller of Income Tax, (2006) SGITBR 2 (Singapore) 3
JOURNAL ARTICLE
Singh Gurbachan & Henny Liow, Treaties and Domestic Law Interact , 6 Int’l Tax Rev. 41 (1995)
BOOKS
AMID DHANDHA, NS BINDRA'S INTERPRETATION OF STATUTES 250 (11th Ed.
JUSTICE B L HANSARIA’S, WRIT JURSIDICTION (3 ed. 2005) 1 KANGA & PALKHIVALA’S, THE LAW AND PRACTICE OF INCOME TAX (10 ed. 2014) 1 M.P. JAIN, INDIANCONSTITUTIONAL LAW 1002 (2003) 7 MATHUR, GORL & SONNTAG, PRINCIPLES OF MODEL TAX CONVENTIONS AND INTERNATIONAL TAXATION, Vol. 1, Ed. 1
SAMPATH IYENGAR, LAW OF INCOME TAX 441 1
UK CASES
British Columbia Electric Railway Co. Ltd. v. King (1947) 15 ITR Supp 1 (PC) 4 Calcutta Jute Mills Co. Ltd. v. Nicholson (1876) 1 TC 83 3 Cesena Co. Ltd. v. Nicholson (1876) 3 De Beers Consolidated Mines Ltd v. Howe (1906) 5 TC 198 (HL) 3 Imperial Continental Gas Association v. Henry Nicholson (1876) 1 TC 138 3 London Bank of Mexico v. Apthorpe (1891) 3 TC 143 4 Noble Ltd (BW) v. Mitchell (1926) 11 TC 372 4
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CIT v. Chidambaram Chettiar , (1971) 80 ITR 467 (SC) 9 CIT v. Hemchandra, 77 ITR 1 (SC) 9 CIT v. K. Mohan & Co.(Exports), 349 ITR 653(Bom) 10 CIT v. Mintu Kalita, (2002) 253 ITR 334 (Gau); 11 CIT v. Ranoli Investment, 235 ITR 433 14 CIT v. Thayaballi Mulla Jeevaji Kapasi, (1967) 66 ITR 147 (SC) 11 CIT v. Vidarbha Housing Board, (1988) 171 ITR 481 (Bom). 11 Claridges Hotel Pvt Ltd v ITO (1980) 123 ITR 844 (Del) 1 Commissioner of Income-Tax, Punjab v. R.D. Agarwal, (1965) ITR LVI 24 8 Dassaults System v. Department of Income Tax, (2014) ITA No. 1027(Mds)/
DDIT v. Reliance Communications Infra v. Lucent Technologies, (2014) 159 TTJ (Mum).
DIT v. Nokia Networks (ITA 512/2007) 5 GVK Industries Ltd. v. ITO, (1997) 228 ITR 564 (AP). 7 Harakchand v. Union of India, (1969) 2 SCC 166 7 Hindustan Petroleum Corporation Ltd. v. Assistant Director of Income Tax, International Taxation, (2010) 36 SOT 120 (Mum).
IIFCO Ltd v. JCIT, (2008) 296 ITR (AT) 68 (Del) 11 Ikea Trading (Hong Kong) Ltd, In re, (2009) 308 ITR 422 (AAR). 7 Infotech Enterprises Ltd. v. Additional Commissioner of Income Tax, (2014) 30 ITR (Trib) 542 (Hyd)
ITO v. Calcutta Chromotype Pvt Ltd, (1974) 97 ITR 55 10 ITO v. Selected Dalurband Coal Co P Ltd, (1996) 217 ITR 597 (SC) 9 K.T. Corporation, (2009) 181 Taxman 94 (AAR-New Delhi). 4 Kapoor Bros. v. Union of India ,(2001) 247 ITR 324 (Pat) 12 KCP Ltd v. ITO, (1984) 146 ITR 284 (AP) 9 Kerala Vision v. Assistant Commissioner of Income Tax, I.T.A. No. 794/ (Coch)
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Khan Bhadur Hormashi Maneckji Dossabhoy Hormashi Bhiwandiwalla and Co. v. IAC, (1991) 188 ITR 203 (Bom)
Khandinge v. Agricultural ITO, (1963) AIR 291 (SC) 6 Khyerbari Tea Co. v. State of Assam, (1964) AIR 925 (SC) 6 Kishen Singh v Prem Singh (1939) AIR 587 (Lah); 6 Krishnaswamy S. Pd v. Union of India, (2006) 281 ITR 305 (SC). 14 Kunnathat v. State of Kerela, (1961) 3 SCR 77 6 L. Chandra Kumar v. Union of India & others AIR1997SC1125 2 M/s VelankaniMauritus Ltd v. DCIT (IT), 4th^ October 2010 (Bang.) 6 M/s. Exotic Fruits Pvt. Ltd. v. Income Tax Officer (International Taxation), (2014) 62 SOT 247 (Bang)
M/s. New Bombay Park Hotel Pvt. Ltd. v. Income Tax Officer (International Taxation), (2014) 61 SOT 105 (Mum)
Merchant v. CED, (1989) 177 ITR 490(SC) 12 Metro and Metro v. Additional Commissioner of Income Tax, (2014) 29 ITR (Trib) 772 (Agra)
Modi Spg & Wvg Mills v. ITO, (1975) 101 ITR 637 9 MotoralaInc v. DCIT 95 ITD 269 (Del) 6 Mukhtiar Singh Sandhu v. ITO, (1986) 160 ITR 526 (P&H) 10 N.M.C.S. Mills v. Ahmedabad Municipality, (1967) AIR 180 (SC) 6 Nagrath Chemicals Works (Pvt) Ltd v CIT (2004) 265 ITR 401 (All) 1 Nicholas Applegate South East Asia Fund Ltd. v. ADI (International Taxation) (2009) 117 ITD 299 (Mum)
Novell Inc, Mumbai v. Assessee on 28 November, 2011 Mumbai ITAT 5 Parashuram Pottery Works Co. Ltd. v. ITO, (1977) 12 Rai Saheb Rekchand Mohota Spg and Wvg Mills v. Labour Court (1968) AIR 151
Sadbhav Engineering Ltd. v. Dy. Commissioner Of Income Tax , 333 ITR 483 (Guj)
[STATEMENT OF JURISDICTION]
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STATEMENT OF JURISDICTION
The Petitioner humbly submits this memorandum for the petition filed before this Honourable Court. The petition invokes its writ jurisdiction under Article 226 of the Constitution of India. It sets forth the facts and the laws on which the claims are based.
[STATEMENT OF FACTS]
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STATEMENT OF FACTS
I. Zeon is a private IT & ITES company incorporated in the Cayman Islands, carrying on its software business primarily through Singapore. Zeon has been unable to obtain a Tax Residency Certificate from Singapore in order to claim Singapore Tax Residency for Indian tax purposes. They have a presence in India through a liaison office. Zeon are credited with designing a software called Neo, which was revolutionary in the human resource industry and could predict how well a new recruit would work in an organization that was going to hire him/her and adapt to the organization’s culture and values. Cheetah & Chetak Private Limited, an Indian manufacturing private limited company having its registered office in Mumbai, decided to buy this software. II. Consequently, an agreement (“ Agreement ”) was entered into between them and Zeon for the purchase of software for a price of INR 35,00,000 on a year on year basis. No TDS was deducted by the manufacturing company at the time of making payments. The Agreement stated that the Licensee is granted a ‘ non-exclusive, non-transferable license ’, and that ‘ all copies of the Software shall be the exclusive property of Zeon ’, according to 2(a) and 2(d) of the Agreement. Further, 2(f)(i) and 2(f)(ii) of the Agreement stipulated that the software cannot be ‘ loaned, rented, sold, sublicensed or transferred to any third party ’, or ‘ used by any parent, subsidiary or affiliated entity of Licensee ’ without prior written consent of Zeon. Additionally, the Agreement placed restrictions on the Licensee to not ‘ copy, decompile, disassemble or reverse-engineer the Software ’ without Zeon's written consent, stipulated by 2(h). III. The manufacturing company filed income tax return without delays, and for AY 03- and 04-05, assessment order was passed under S. 143(3) of the Income Tax Act, 1961 (“ ITA ” or “ Act ”). For AY 2005-06, the assessment was completed under S. 143(1) and for AYs 2006-07, 07-08, 08-09, it was completed under S. 143(3) of the ITA. The assessing officer had accepted the returns and the transaction with Zeon in the above AYs. On July 4, 2014, the assessing officer sent a notice to Cheetah & Chetak Private Limited under S. 148 and disallowed the deduction claimed for payments made for these AYs and sort to recover INR 50 lacs from the assesse. The reason cited was that payments made by the manufacturer constituted ‘royalty’ under S. 9 of the Act, and tax should have been withheld at rate of 25% for all these years while making payment to Zeon for the software. Manufacturing company was charged under ITA as an
[STATEMENT OF ISSUES]
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STATEMENT OF ISSUES
ISSUE I: Whether the writ filed by the petitioner is maintainable? ISSUE II: Whether the consideration paid under the license agreement amounts to royalty? ISSUE III: Whether the reopening and the reassessment are bad in law? ISSUE IV: Whether the petitioner is an assessee in default?
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SUMMARY OF ARGUMENTS
I. THE WRIT FILED BEFORE THE HIGH COURT IS MAINTAINABLE
The writ petition filed by the petitioner is maintainable. Firstly , the existence of an efficacious alternative remedy in the Income Tax Act, 1961 would not oust the petitioner from filing the writ petition as fundamental rights have been infringed. Secondly , fundamental rights were infringed by the amendment introduced in S. 9(1)(vi) of the Income Tax Act, 1961 and therefore the writ will maintainable on this regard. Thirdly , the constitutionality of an act cannot be challenged in a tribunal established by the same act. II. THE CONSIDERATION UNDER THE LICENSE AGREEMENT DOES NOT AMOUNT TO ROYALTY The DTAA between Singapore and India cover the concerned parties as Zeon is a resident of Singapore. Zeon is a resident under S. 2 of the Singapore Income Tax Act, 1948 as its place of management and control is situated in Singapore. Therefore, S. 9 is not applicable. In any case, Explanation 4 of S. 9(1)(vi) of the Income Tax Act is unconstitutional as it does not meet the criteria laid down by Article 14 of the Constitution of India. The legislature has arbitrarily and unreasonably added the explanation which alters the ambit of the original section. The explanation has broadened the ambit of royalty and given it a new meaning which is inconsistent with the existing judicial understanding. It also imposes royalty in transactions such as sale which was unheard of and is therefore invalid. III. THE REOPENING AND REASSESSMENT IS BAD IN LAW The reopening and reassessment are bad in law. Firstly , with regard to the reassessment, the assessing officer did not have any reason to believe that the income escaped assessment as the assessee had disclosed all material facts truly and fully. Secondly, the notice sent was in violation of S. 147 of the I-T Act. Thirdly , the reopening was in contravention of the CBDT Circular dated 29/05/2012. Fourthly, the deductions disallowed under S. 40(a)(ia) and the tax rate levied under S. 115(1)(b)(AA) are bad in law. IV. THE PETITIONER HAS BEEN WRONGLY CHARGED AS AN ASSESSEE-IN-DEFAULT Firstly, the assessee was not under an obligation to deduct sums under S. 194J. Secondly, the TDS on royalty was an impossible task keeping in mind the prevailing law at that time. Thirdly, there was bona fide reason to believe that tax was not deductable under S. 194J.
[ARGUMENT ADVANCED]
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to S. 9(i)(vi) introduced by way of an amendment^9 is infringing the rights of equality and free trade as enshrined by the Constitution under Articles 14 and 19(1)(g) respectively. The notice sent to the petitioner^10 imposed retrospective liability, which resulted in the infringement of fundamental rights. Therefore, it is submitted that the writ filed by the petitioners is maintainable. C. Alternative remedy is not adequate for challenging constitutionality
(¶5.) It is a settled legal principle that a Tribunal cannot test the vires of the Act which establishes it.^11 Even though it acts as the court of first instance, it cannot declare any part of the act unconstitutional, if it is established by the same act.^12 Deriving from this principle, the alternative remedy open to the petitioner in this case, would be to conform to the remedies provided by the Tribunal under the I-T Act, 1961^13 which would not be an adequate remedy in this case as the petitioner by way of the writ petition is also questioning the constitutionality of Explanation 4 of S. 9(1)(vi) added by way of an amendment^14. Therefore, it is submitted that the writ petition filed would be maintainable, as the alternate remedy is not adequate to address the claims of the petitioner. (¶6.) Therefore, it is humbly submitted by the petitioner, that the writ petition filed would be maintainable.
II. THE CONSIDERATION UNDER THE LICENSE AGREEMENT DOES NOT CONSTITUTE ROYALTY.
(¶7.) It is humbly submitted that the consideration under the license agreement does not constitute royalty under S. 9(1)(vi) because the DTAA between Singapore and India (hereinafter ‘DTAA S-I’) pre-empts the application of I-T Act, 1948 [A]. In any case, it does not constitute royalty under S. 9(1)(vi) of the I-T Act [B]. Further , the Liaison Office (hereinafter ‘LO’) is not a business connection under S. 9(1), therefore the petitioner was not liable to deduct Tax deducted at source (hereinafter ‘TDS’) under the head of business profits [C].
(^9) Explanation 4, Section 9(1)(vi), Finance Act, 2012. (^10) Page 3, Moot Problem. (^11) L. Chandra Kumar v. Union of India & others AIR1997SC1125. (^12) L. Chandra Kumar v. Union of India & others AIR1997SC1125. (^13) S. 246, Income Tax Act, 1961; s.154 Income Tax Act, 1961. (^14) Finance Act 2012.
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A. The concerned transaction comes under the purview of the Singapore-India DTAA.
(¶8.) It is well settled that where India has entered into a treaty for avoidance of double taxation as also in respect of purposes referred to in S. 90 of the I-T Act, the contracting parties are governed by provisions of treaty.^15 The treaty overrides provisions of the Act.^16 It is submitted that Zeon is a resident under S. 2 of the Singapore Income Tax Act, 1948 [i] and the lack of a Tax Residency Certificate (hereinafter TRC) does not have any bearing on its residence [ii]. Further, Zeon’s LO is not a permanent establishment (hereinafter ‘PE’) under Art. 5 of the DTAA I-S and therefore not taxable in India [iii].
i. Zeon is a resident according to the definition of Resident under S. 2 of the I-T Act.
(¶9.) Tax conventions do not set rules as to how States have to design their domestic rules on tax residency. The expression ‘in accordance with taxation laws of that state’^17 in Article 4 of the DTAA means that the person falls within the tax jurisdiction of the relevant country due to its domestic criteria of nexus.^18 (¶10.) Firstly , under S. 2 of the Singapore Income Tax Act, 1948, a company is a resident as when ‘ the control and management of whose business is exercised in Singapore ’^19. Domicile of a company doesn’t have a part to play as a connecting factor in Income Tax Act, 1948.^20 The place of a company’s incorporation or registration do not determine its residence under Singapore law.^21 Therefore, it is submitted that Zeon’s place of incorporation i.e. Cayman Islands, does not have a bearing in the determination of its residence. (¶11.) Secondly , ITBR^22 in the case of NB v Comptroller of Income Tax^23 held that the statutory “control and management” test is no different from that of common law^24 .The taxable residence
(^15) Union of India v. Azadi Bachao Andolan, (2003) 263 ITR 706 (SC). (^16) U.A.E. Exchange Centre Ltd. v. Union of India, (20090 313 ITR 94 (Delhi). (^17) Article 4(1), Agreement Between The Government Of The Republic Of Singapore And The Government Of The Republic Of India For The Avoidance Of Double Taxation And The Prevention Of Fiscal Evasion With Respect To Taxes On Income, 1994. 18 26 MATHUR, GORL & SONNTAG, PRINCIPLES OF MODEL TAX CONVENTIONS AND INTERNATIONAL TAXATION, Vol. 1, Ed. 1. 19 20 Income Tax Act (Singapore), Section 2 (1948). 21 Singh Gurbachan & Henny Liow,^ Treaties and Domestic Law Interact , 6 Int’l Tax Rev. 41 (1995). 22 Id. 23 Singapore Income Tax Board of Review. 24 NB v. Comptroller of Income Tax, (2006) SGITBR 2 (Singapore). De Beers Consolidated Mines Ltd v. Howe (1906) 5 TC 198 (HL); Cesena Co. Ltd. v. Nicholson (1876) 1 TC 83; Calcutta Jute Mills Co. Ltd. v. Nicholson (1876) 1 TC 83; Imperial Continental Gas Association v. Henry Nicholson (1876) 1 TC 138.
[ARGUMENT ADVANCED]
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which is: ‘the maintenance of a fixed place solely for the purpose of advertising, for the supply of information’.^31 It is humbly submitted that Zeon’s LO is not a PE and hence not taxable in India. B. The consideration paid by the petitioner does not amount to royalty under S. 9 of the I-T Act.
i. The true nature of the consideration given under the agreement is not royalty.
(¶15.) The main element to be ascertained in a transaction is the true nature of the transaction irrespective of whatever term it is commonly referred to.^32 In the case at hand, the petitioner only has the right to use^33 under the agreement and consideration under an identical agreement^34 has been held to not constitute royalty. Further, the agreement is for a sale of goods as it is a perpetual license. Explanation 4 to S. 9(1)(vi) of the I-T Act therefore imposes the implications of royalty even in cases where it is not in the nature of royalty such as sale of goods.
ii. The explanation has removed the distinction of transfer of Copyright and the transfer of "copyrighted goods"
(¶16.) It is submitted that limiting or restricting the scope of a definition in a statute by way of an explanation is an act of exercise of the unguided discretion of the legislature.^35 The Apex Court in the case of Tata Consultancy Services v. State of AP^36 , has held that ‘ the buyer only acquires ownership of that particular copy but not the intellectual property in the copyright ’ and the software was held to be a sale within the meaning of Art. 366(12) of the Constitution of India. This view of the court has been reiterated in a number of judicial pronouncements.^37 It is hence submitted that as a consequence of the amendment, royalty has to be paid even for a transfer or sale of copyrighted goods instead of only a transfer of the right of copyright.
(^31) U.A.E. Exchange Centre Ltd. v. Union of India, (20090 313 ITR 94 (Delhi). (^32) CBDT v. Oberoi Hotels (1998) 231 ITR 148 (SC); Nicholas Applegate South East Asia Fund Ltd. v. ADI (International Taxation) (2009) 117 ITD 299 (Mum). 33 34 Page 2, Moot Problem. Clause 2(a) of the license agreement. 35 DDIT v. Reliance Communications Infra v. Lucent Technologies, (2014) 159 TTJ (Mum). Rai Saheb Rekchand Mohota Spg and Wvg Mills v. Labour Court (1968) AIR 151; Chotabhai Jetubhai Patel & Co v. State of Madhya Pradesh (1968) AIR 127 (MP). 36 37 Tata Consultancy Services v. State of A.P., 271 ITR 401 (SC). Novell Inc, Mumbai v. Assessee on 28 November, 2011 Mumbai ITAT; DIT v. Ericsson AB (343 ITR 470)(Del), DIT v. Nokia Networks (ITA 512/2007).
[ARGUMENT ADVANCED]
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iii. The explanation has altered the meaning of Royalty and broadened its ambit and the same is inconsistent with the pre-amendment provision
(¶17.) It is respectfully submitted that an explanation does not enlarge the scope of the original section that it is supposed to explain.^38 Judicial pronouncements have clarified^39 that royalty was to be paid when there was a transfer of right over goods and not when there was a sale. The explanation subsequent to the amendment imposes royalty even in transactions of sale, which is an unprecedented position, inconsistent with the meaning laid down in the Copyright Act, 1957 (hereinafter ‘Copyright Act’) and additionally, is also inconsistent with judicial opinion. Additionally, it has been held in the case of Dassault Systems Simulia P Ltd. v. Department Of Income Tax^40 that payment towards the purchase of a copyrighted article does not fit within the meaning of royalty under S. 14 of the Copyright Act and hence cannot be treated as royalty under S. 9 (1)(vi) of the I-T Act. It is therefore submitted that the explanation introduced by way of the amendment has led to glaring inconsistencies with the existing law and judicial opinion.
iv Explanation 4 to S. 9(1)(vi) of the I-T Act is discriminatory and unconstitutional under Art. 14 as it treats unequal equally (¶18.) It is submitted that a tax statute must fulfill the test of reasonableness and equality before law, which is guaranteed under Art. 14 of the Constitution of India, 1950 (hereinafter ‘Constitution’).^41 The doctrine of equal protection applies to taxation law like any other law,^42 and is likely to be struck down if it contravenes the constitutional provisions or does not perpetuate a reasonable classification.^43 Moreover, any classification made by the State must have an intelligible differentia and this differentia must have a rational relation to the object
(^38) Kishen Singh v Prem Singh (1939) AIR 587 (Lah); AMID DHANDHA, NS BINDRA'S INTERPRETATION OF STATUTES 25039 (11th Ed. 2010). M/s VelankaniMauritus Ltd v. DCIT (IT), 4th^ October 2010 (Bang.); MotoralaInc v. DCIT 95 ITD 269 (Del); Airports Authority of India, 28 40 th^ December 2010 (Del). 41 Dassaults System v. Department of Income Tax, (2014)^ ITA No. 1027(Mds)/2013. 42 Khyerbari Tea Co. v. State of Assam, (1964) AIR 925 (SC). 43 Khandinge v. Agricultural ITO, (1963) AIR 291 (SC); Kunnathat v. State of Kerela, (1961) 3 SCR 77. N.M.C.S. Mills v. Ahmedabad Municipality, (1967) AIR 180 (SC).
