आयकर अपील(cid:10)य अ(cid:11)धकरण, (cid:14)द(cid:16)ल(cid:10) (cid:17)यायपीठ “डी”, नई (cid:14)द(cid:16)ल(cid:10) म(cid:24)

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘D’, NEW DELHI सु(cid:27)ी सषु मा चावला, उपा य! एव ं (cid:27)ी एन. के. %ब(cid:16)लैया, लेखा सद*य के सम!

BEFORE MS. SUSHMA CHOWLA, VP & SHRI N.K.BILLAIYA, AM [THROUGH VIDEO CONFERENCING]

आयकर अपील सं. / ITA No.1000/Del/2017 ,नधा-रण वष - /Assessment Year 2013-14 Symantec Asia Pacific Pte. Ltd., 6 Temasek Boulevard, #12-01, Suntec Tower Four, Singapore 038986 PAN-AAOCS1828F ..........अपीलाथ//Appellant vs The DCIT (International Taxation), Circle-3(1)(2), Room No.419, Block E-2, Civic Centre, J.L.N.Marg, New Delhi-110002. …………. 01यथ/ / Respondent अपीलाथ/ क2 ओर से / Appellant by : Sh. Nageshwar Rao, Adv. &

Ms. Deepika Aggarwal, Adv.

01यथ/ क2 ओर स े / Respondent by : Sh. Satpal Gulati, CIT DR सनु वाई क2 तार(cid:10)ख/ घोषणा क2 तार(cid:10)ख /

Date of Hearing : 21.07.2020 Date of Pronouncement: 31.08.2020 आदेश/ORDER PER SUSHMA CHOWLA,VP The present appeal filed by assessee is against order of DCIT, Circle-

3(1)(2), International Transaction, New Delhi dated 08.11.2016 relating to assessment year 2013-14 against the order passed under section 143(3)r.w.s

144C(13) of the Income-tax Act, 1961 (in short ‘the Act’).

2. The assessee has raised following grounds of appeal:-

“Based on the facts and circumstances of the case, Symantec Asia Pacific Ptd Ltd (hereinafter referred to as the' Appellant') respectfully craves leave to prefer an appeal under section 253(1)( d) of the Income-tax Act, 1961 (hereinafter referred to as the' Act'), against the order dated 8 November 2016 (received by the Appellant on 4 January 2017) passed by the learned Deputy Commissioner of Income-tax, Circle 3(1)(2), International Taxation, New Delhi (hereinafter referred to as 'AO') in pursuance of the directions issued by the Hon'ble Dispute Resolution Panel - 2, New Delhi (hereinafter referred to as 'DRP') dated 17 October 2016 under section 143(3) of the Income-tax Act, 1961 ('Act') read with section l44C(13) of the Act on the following grounds, which are independent of and without prejudice to each other.

Ground 1 - Consideration from sale of software licenses of Rs.

2,37,63,86,143 taxed as royalty i. On the facts and in the circumstances of the case and in law, the learned AO and the Hon'ble DRP has erred in treating the consideration received from sale of software license taxable as 'Royalty' both under the provisions of the Act as well as Article 12 of the Double Taxation Avoidance Agreement ('DTAA') between India and Singapore.

ii. The learned AO and the Hon'ble DRP failed to appreciate the Appellant's arguments and submissions explaining that the software licences sold by the Appellant are goods and not services.

iii. The learned AO and the Hon'ble DRP erred in holding that the Appellant grants right in the copyright of the software licenses, instead of treating the grant of software licenses as copyrighted article without any rights in the copyright.

iv. The learned AO and the Hon'ble DRP erred in holding that the term 'use' or 'right to use' does not presuppose commercial exploitation of software.

v. The learned AO and the Hon'ble DRP erred in treating that sale of software licenses by the Assessee involved consideration for use or right to use any process assuming that computer program is process.

vi. The learned AO and the Hon'ble DRP erred in not following the binding decisions of the jurisdictional Hon'ble Delhi High Court which squarely covered the aforesaid issue.

Ground 2 - Erroneous levy of surcharge and cess on the tax rate applicable as per DTAA On the facts and in the circumstances of the case and in law, the learned AO erred in levying surcharge as well as secondary and higher secondary cess on the tax rate adopted under India - Singapore DT AA Ground 3 - Initiation of penalty proceedings under section 271(1)(c)

of the Act On the facts and in the circumstances of the case and in law, the learned A