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2016 (11) TMI 1467 - AT - Income TaxRectification of mistake - Tribunal did not follow the co-ordinate bench decision rendered in the case of Solid Works Corporation (2012 (2) TMI 406 - ITAT MUMBAI) and the same has resulted in a mistake apparent from record - whether misreading of a decision would amount to mistake apparent from record? - whether the payment received by the assessee on sale of computer software is royalty or not as per DTAA between India and USA? - Held that:- In the case of Solid Works Corporation as relying on the case of DIT Vs. Ericsson AB (2011 (12) TMI 91 - Delhi High Court ) and held that the consideration received by the assessee for sale of software was not royalty. Misreading of decision of Hon’ble High Court would result in a mistake apparent from record warranting recall of the order. We have noticed that the assessees have submitted that the software purchased by them is specific to run the hardware and hence it was not a case of shrink wrapped software. Further the Hon’ble Delhi High Court has held in the case of Ericsson (supra) that the software would not be royalty, even it was supplied separately. All these points support the case of the assessee that the Tribunal has misread the decision rendered by Hon’ble Delhi High Court in the case of Ericsson (supra). We also notice that the Tribunal has committed an error in not appreciating the facts prevailing in the instant cases. Hence we find merit in the contentions of the assessee that the impugned order of the Tribunal suffers from mistake apparent from record.
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