DIT v. Ut Starcom Inc. (2023)

📡 DIT vs. UT Starcom Inc. – Delhi ITAT on Embedded Telecom Software, Royalty & Section 234B Interest (2023–24)

📌 Background

Cross-border transactions involving telecommunication equipment supplied with embedded software have historically attracted aggressive tax positions from the Revenue, particularly by characterising such receipts as royalty under Section 9(1)(vi) of the Income-tax Act, 1961.

Another recurring controversy concerns the levy of interest under Section 234B on non-resident assessees, even where tax was otherwise required to be withheld by the Indian payer under Section 195.

In DIT v. UT Starcom Inc. [(2023) 155 taxmann.com 117 / (2024) 228 TTJ 479 / 236 DTR 339 (Delhi ITAT)], the Tribunal comprehensively examined both issues in the context of the India–USA DTAA, reaffirming settled principles on embedded software taxation and advance tax liability of non-residents.

📂 Facts of the Case

• Assessee: UT Starcom Inc., USA
• Assessment Years: 2004–05 and 2005–06
• Nature of Business: Supply of telecommunication hardware and related equipment
• Transaction Structure:
  • Supply of telecom hardware along with embedded operational software
  • Software was inseparable from the hardware and was essential only to operate the equipment
• Revenue’s Stand:
  • Receipts attributable to software constituted royalty under Section 9(1)(vi) and Article 12 of the India–USA DTAA
  • Interest under Section 234B was chargeable for failure to pay advance tax

❓ Points of Dispute

1. Whether consideration received for supply of telecommunication hardware with embedded software is taxable as royalty under:
   • Section 9(1)(vi), and
   • Article 12 of the India–USA DTAA.
2. Whether interest under Section 234B can be levied on a non-resident company, when tax was deductible at source under Section 195.

📑 Submissions by the Revenue

• Embedded software enabled the functioning of telecom equipment and hence involved use of intellectual property.
• Payments attributable to software should be classified as royalty under domestic law and DTAA.
• Failure to discharge advance tax liability justified levy of interest under Section 234B.

📑 Submissions by the Assessee

• Software was embedded and inseparable from the hardware.
• No independent right to use, copy, modify, or exploit the software was granted.
• There was no transfer of copyright or right to use copyright.
• Receipts constituted business income, taxable only if the assessee had a Permanent Establishment (PE) in India under Article 7 of the DTAA.
• As a non-resident, advance tax provisions were not applicable since the Indian payer was obliged to deduct tax at source under Section 195.

⚖️ Legal Principles & Tribunal’s Findings

1. Embedded Software vs. Royalty

The Tribunal reaffirmed the settled distinction between:

• Supply of copyrighted article, and
• Transfer of copyright or right to use copyright.

It observed that:

• The software was embedded in the telecom equipment.
• It was supplied solely to enable operation of the hardware.
• The customer had no independent rights over the software.

Accordingly, the receipts could not be characterised as royalty under Section 9(1)(vi).

2. India–USA DTAA – Article 12

Under Article 12, royalty requires payment for:

“use of, or the right to use, any copyright…”

The Tribunal held that:

• There was no use or right to use copyright.
• The transaction was essentially a sale of equipment, with embedded software being incidental.

Hence, Article 12 was not attracted.

3. Taxability under Article 7

Since the receipts were business income:

• They were taxable in India only if the assessee had a PE.
• In the absence of a PE, no taxation could arise in India.

4. Levy of Interest under Section 234B

The Tribunal categorically held that:

• A non-resident company cannot be fastened with interest under Section 234B when:
  • Income is subject to withholding under Section 195, and
  • The obligation to deduct tax lies on the payer.

Failure of the payer to deduct tax cannot be visited upon the non-resident by charging interest.

🏁 Held

The Delhi ITAT held that:

✅ Receipts from supply of telecommunication hardware with embedded software are not taxable as royalty under Section 9(1)(vi).
✅ Such receipts are not royalty under Article 12 of the India–USA DTAA.
✅ In the absence of a PE, the income is not taxable in India under Article 7.
✅ Interest under Section 234B is not leviable on the non-resident assessee.

✅ Practical Impact for Multinational Companies

• Telecom & Technology Sector Relief: Embedded operational software does not trigger royalty taxation.
• Certainty on Section 234B: Non-residents are protected from interest liability where TDS obligations exist.
• DTAA Supremacy Reinforced: Treaty provisions override expansive domestic interpretations.
• Reduced Litigation Risk: Aligns with Supreme Court and High Court jurisprudence on software taxation.

🔑 Key Takeaways

1. Embedded software ≠ royalty, when supplied solely to operate hardware.
2. No copyright transfer → no royalty taxation under Section 9 or DTAA.
3. Business income taxable only with PE under Article 7.
4. Section 234B interest not applicable to non-residents where Section 195 applies.

📢 Why This Case Matters

The ruling in DIT v. UT Starcom Inc. is a significant reaffirmation of taxpayer-friendly jurisprudence in cross-border technology transactions. It harmonises domestic law with DTAA principles and prevents unwarranted expansion of the royalty definition.

Equally important is the Tribunal’s clarity on Section 234B, which curbs mechanical levy of interest on non-residents despite clear withholding obligations on Indian payers.

This decision strengthens legal certainty for multinational enterprises supplying hardware with embedded software, particularly in telecom, networking, and infrastructure sectors.

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