Google Payments to Ireland Outfit Not Royalty, Not Subject to Withholding Tax, ITAT Says

Google India was granted relief on Friday as the Income Tax Appellate Authority (ITAT) said the payments made by the company to Google Ireland between 2007-08 and 2012-13 were not royalties and were hence not subject to withholding tax. The Bengaluru-bench of the ITAT passed the ruling after re-examining the matter on the orders of the Karnataka High Court. The case relates to whether payments totalling Rs 1,457 crore made by Google India to Google Ireland is a royalty and whether the tax was to be withheld in India.

The ITAT in its earlier order in 2018 had held that Google India’s payment to Google Ireland is royalty and tax should be paid in India. However, Karnataka High Court directed ITAT to re-examine the matter.

In its fresh ruling dated October 19, 2022, the ITAT set aside its 2018 order and said that such transfer of money was not a royalty.

Allowing the appeal of Google India, the ITAT, in a 72-page order dated October 19, said, “we hold that the impugned payment cannot be characterised as royalty under the India-Ireland DTAA.” An email sent to Google India for comment on the issue did not elicit a response.

The ITAT ruling comes a day after Google was hit with a Rs. 1,337.68 crore penalty, imposed by the Competition Commission of India (CCI) for abusing its dominant position in multiple markets in relation to Android mobile devices.

The CCI’s penalty amount of Rs. 1,337.68 crore imposed on Google is “provisional”, the regulator said, as it has asked the internet major to furnish requisite financial details since the data was not presented in a reliable manner.

The penalty of Rs. 1,337.76 crore translates to 10 percent of Google’s average of relevant turnover for the last three preceding financial years 2018-19, 2019-2020 and 2020-21.