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An author earns income by publishing their book. The publisher publishes the author’s book and also the author gets the profit against the overall number of books sold.
The said amount of profit earned by them is termed royalty income. An author is a person, who uses his skill, knowledge to write something for his readers. Nowadays the author writes books, articles and publishes their write au fait on many platforms.
An author basically enters into a contract with the publisher, in order to sell his books, however, a writer enters into a contract with the director, in order to cast and direct his story in a film or any visual presentation.
Once it is done, the writer gets their money from the publisher, and the same be termed as royalty income for the author.
Thus, where an author receives such form of royalty income, they can claim deductions under Section 80QQB of Income Tax Act 1961.
In order to avail, the benefit of deduction available under Section 80QQB of the Income Tax Act, the Gross Total Income of the author shall be computed as follows –
Where an assessee wishes to claim deductions under section 80QQB, the same shall be available up to Rs. 3,00,000 only. Or Gross total income earned by him. Or whichever is less.
In order to claim deduction under Section 80QQB, an assessee is required to fulfill the following conditions –
EXAMPLE
Suppose Mrs. Bharti has written a book named “My Country” and she is a Resident of India. In a financial year, she earns Rs. 1,00,000 as a royalty income from publishers. She is also having a business from which she earns Rs. 5,00,000. Now if she wants to take the deduction under section 80QQB,
She would be required to deduct the income of royalty from the gross total income. So Mrs. Bharti will be required to pay tax on Rs. 5,00,000 because she can take the deduction on Rs. 1,00,000 under 80QQB of income tax Act, 1961.
ELIGIBILITY -DEDUCTION UNDER SECTION 80RRB
Where an individual wished to claim deduction under Section 80RRB of Income Tax Act 1961, the same would be required to satisfy the subsequent criteria:
The amount of deduction shall be available, based on the following criteria –
Section 44DA of income tax Act, 1961 deals with the Special provision of Income by way of royalties within the case of a non-resident.
According to Section 6 of the income tax Act 1961, an assessee is qualified as a non-resident if they satisfy anyone of the subsequent conditions:
The payment made in respect of transfer of all or any rights, including granting of license in respect of intellectual property like patent, design, trademark copyright, will be taxable as royalty under Section 9(1)(vi) of the Income Tax Act, 1961. Royalty is taxable as income deemed to arise in India and an individual making payment to a non-resident is obliged to deduct tax on the payment.
However, explanation 4 was inserted in 2012, in order to provide a retrospective effect, that the transfer of right in respect of any right, property or information, includes the transfer of all or any right to be used or right to use computer software (including granting of a license) no matter the medium through which such right is transferred. The definition of royalty within the Double Taxation Avoidance Agreements (DTAA) isn’t quite as wide.
The tax department’s view regarding taxation of payments to be used of software/purchase of software is that payment for grant of license- whether exclusive or non-exclusive, distribution and sale of CD carrying the software, sale of equipment with software would be taxable as royalty since a part of such payment, if not in entirety, is for copyright within the software.
However, assesses in various categories – end-users, resellers, distributors took a stand that the payment isn’t for any copyright since no right is conveyed to the payer/buyer of software and it’s not taxable as royalty.
the distinction between the utilization of/right to use copyright and a copyrighted article or object containing copyrighted software was emphasized to contend that no tax is deductible on such payments.
Moreover, since the non-residents would value more highly to be governed by the DTAA which doesn’t classify such payment as royalty, in any event, the benefit under Section 90 (2) can be availed and also the sum wouldn’t be chargeable to tax in India.
The key points within the above-mentioned judgment which approves the choice of varied High Courts and AAR in favor of the taxpayer are:
The Supreme Court further held that changes to the domestic Act which couldn’t are contemplated at the time of getting in the DTAA cannot be imported into the understanding of the term ‘royalty’ under the DTAA. Further, it also held that where the sum isn’t chargeable to tax as royalty, there was no have to deduct tax. In the matter of Pilcom v. CIT [2020] 116 taxmann.com 394/271 Taxman 200/425 ITR 312 (SC),
it was held that the provisions will not apply since the deduction claimed, in the case of Pilcom wasn’t provided under Section 195 in respect of “sum chargeable to tax” and therefore the payer failed to have any option but to deduct tax whether the sum was ultimately taxable or not.
The CBDT had issued Notification No.21/2012 dated 13-6-2012 in terms of which tax has already been paid on the primary transfer of software either under Section 194J or Section 195, the tax wasn’t required to be deducted in subsequent transfers where the transferor could be a resident.
Interestingly, under explanation 4, nothing was mentioned in respect of Section 194J, requiring a person making payment of any royalty to a resident to deduct tax.
The definition of royalty is as per Section 9(1)(vi), Explanation 2. Explanation 4 which was inserted in 2012 wasn’t included within the definition for purposes of Section 194J.
It’s going to now be possible to require an argument that even for resident payees, the definition of royalty isn’t satisfied just in case of payment for software with limited rights to use the identical both on account of absence of regard to Explanation 4, in Section 194J and also the elucidation by the Supreme Court that unless there’s a transfer of the correct, payment for the limited right to work the software won’t fall within the ambit of royalty.
under Section 5(2) of the Income Tax Act, 1961 provides that a Non-Resident is taxable in India on incomes received or deemed to be received in India and on income which accrue or arise to him in India or is deemed to accrue or arise to him in India as provided in under Section 9(1) (vi) of the Income Tax Act or Article dealing with Royalty income in the treaties (i.e. Article 12).
If the IPR is located in India, then the consideration for its use or disposal accrues/arises in India & thus is taxable under section 5(2) regardless of requirement in under section 9(1)(vi).
The provisions of taxability remained mainly upon the transfer of right in respect of copyright or “use of or right to use” because of DTAA(s) and the amendment made to Explanation 4 to Section 9(1)(vi).
It was held by the Supreme Court, that in order to satisfy the term use of or right to use, the copyright, interest or right must have been created in such distributor/end-users.
It was also held that in event of a non-exclusive license, a non-transferable license doesn’t provide or give the right to someone to enjoy the rights as a right-holder, and hence no transfer of rights or right to use can be executed.
The IT Act covers payment for the transfer of rights yet as use just in case of other IPRs like patent, trademark, etc., under separate clauses. the excellence between copyright and other IPRs is that just in the case of copyright the making of one copy isn’t treated as infringement as per Section 52 (1) (aa) of Copyright Act, 1957.
Similar provisions haven’t been drafted for other IPRs. Therefore, non-exclusive and restrictive permission for the use of patent and payment for such patent, shall be covered under the ambit of royalty, and under this, where the person uses the same to provide the products using the patent, uses the trademark on goods or service, in the absence of such permission, the same would be termed as infringement.
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