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A SPECIAL bench of the Income tax Appellate Tribunal (ITAT), Delhi has held that fees paid by Indian broadcasting companies to foreign satellite service providers can be taxed in India.

The ITAT bench was ruling on a plea by Dutch firm New Satellite NV and Thailand-based Shin Satellite that they should not be made to pay tax in India because the payment they received in return for transponder services cannot be construed as royalty payment.

The income-tax department has been treating the income earned by foreign satellite companies as royalty and, therefore, levied tax on the receipts. The department also held the view that even under the Double Taxation Avoidance Agreement (DTAA), the services rendered by the satellite companies to Indian broadcasters are a “secret process” and therefore, liable to be taxed.

The foreign satellite companies held the view that the amount received by them from India cannot be taxed in India because they have no material or men or machinery or a combination of them in India.

Therefore, it cannot be construed that the particular income (the fees paid by Indian broadcasters) has neither arisen nor accrued in India and the government has no locus standi for taxing such receipts.

The ITAT, aligning the facts of the case in place, observed that foreign satellite companies earn their income by providing transponder facilities to Indian companies. They operate the satellites situated at a geostationary location, 36,000 kilometres away. Through the transponders installed at these satellites, the satellite companies do facilitate data transmission to the telecasting companies. By an agreement, a fee is paid to he satellite companies by the telecasting companies.

The ITAT held that the scope of “royalty” is not restricted either by the Income-tax Act or the DTAAs. A simple process, even if it is an intellectual property, falls within the ambit of royalty. Telecasting companies are enabled to telecast their programmes by uplinking or downlinking the data/programmes with the help of the transponders.

Since the consideration paid by telecasting companies is for the use of and the right to use the transponder facilities, they can be treated as royalty fees, the ITAT held.

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