NEW DELHI: The Cable and Satellite Broadcasters Association of Asia (CASBAA) has urged Finance Minister Arun Jaitley to withdraw the royalties imposed on foreign satellite operators (FSO) by the Finance Act 2012 and 2013 and let the matter be settled by the Supreme Court which is presently hearing a matter in this regard.

The Delhi High Court had in January 2011 held in the case of Asia Satellite Telecommunications company Limited (AsiaSat) that the charges received by the Hong Kong based FSO from its customers for provision of transponder capacity cannot be characterised as 'royalties' under the Income Tax Act as it stood prior to the amendment in 20l2. It was held by the court that the equipment was used by the FSOs to provide a service to their customers and so the question of royalty taxation did not arise.

The memorandum by CASBAA CEO Christopher Slaughter says that this view of the High Court was in conformity with the international jurisprudence and model commentaries issued by international tax bodies and renowned jurists / authors and was also followed in case of other FSOs by the High Court and Income Tax Appellate Tribunals.

However, the memorandum sent to Jaitley with a copy to Information and Broadcasting (I&B) Minister Prakash Javadekar points out that the matter has become sub judice as Income Tax authorities have filed an appeal against this judgment in the Supreme Court.

I&B Ministry sources told indiantelevision.com that CASBAA has also protested the rise in royalty under the Finance Act 2013 from 10 per cent to 25 per cent as it is not reasonable in view of the competitive margins earned by the industry players. The Association wants the Minister to roll back this increase so that the tax rates are made ‘friendlier’ and both the operators and consumers can benefit from a rational tax regime.

It is stated that a majority of the Double Taxation Avoidance Agreements (DTAA) that India has entered into provide for a tax rate (on gross basis) on royalties and fees or technical services of 10 per cent.

Thus, taking a holistic view from the point of alignment with the DTAAs and internationally accepted tax rates, the rate of 25 per cent is highly unjust and implies that FSOs are earning high revenues from India which is not the case.

Furthermore, any such step to increase tax rates is not right as the matter is sub judice in the Supreme Court. It not only makes the services ‘cost ineffective’ but hits the ultimate Indian end consumers.

Slaughter points out that India's participation in the global network of satellite communication is growing and any such move by the Indian Government to tax FSOs may also drive policy-makers of other nations to adopt similar measures for taxing payments flowing into India from foreign jurisdictions.