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2010 (4) TMI 877 - AT - Income TaxDouble taxation relief - Article 12(3) of the Indo-US DTAA - supply of software - nature of ‘Royalty’ - liable for tax - HELD THAT:- Computer programme cannot also be treated as patent and invention. Computer programme cannot said to be an invention and therefore cannot be said to be covered by the patient Act. Computer software cannot also be as process. End user of the software in the case of shrink-wrap software does not have any access to source code. He has only right to use the software for his personal or business use. In the absence of any distinguishing feature brought on record by the revenue we respectfully following the order of the Lucent Technologies Hindustan Ltd. v. ITO[2003 (10) TMI 250 - ITAT BANGALORE-A], hold that the payment received by the assessee was not in the nature of royalty within the meaning of Article 12(3) of Indo-US DTAA and accordingly we are inclined to uphold the order of the ld. CIT(A) in deleting the addition made by the AO, The grounds taken by the revenue are, therefore, rejected. liability to pay interest u/s 234B - we find that the facts are not in dispute inasmuch as it is also not in dispute that the assessee being a non-resident, its entire income arising in India is subject to deduction of tax at source in terms of section 195. In the absence of any distinguishing feature brought on record by the revenue, we, respectfully following the decision of the DIT (International Taxation) v. NGC Network Asia LLC [2009 (1) TMI 174 - BOMBAY HIGH COURT] and the Tribunal[2005 (6) TMI 226 - ITAT DELHI-A], hold that when a duty is cast on the payer to pay the tax at source, on failure, no interest can be imposed on the assessee and accordingly we are inclined to uphold the order, of the ld. CIT(A) in deleting the interest charged u/s 234B. The ground taken by the revenue is therefore rejected.
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