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2022 (4) TMI 1419 - AT - Income TaxRoyalty receipt - consideration received on sale of software - addition in hands of assessee on protective basis and in the hands of MOL Corporation (MOLC) on substantive basis - DTAA between India and US - HELD THAT:- Revenue has been following a persistent approach in regard to assessee and its sister assessee subsidiaries of MS Corp holding sale of MS Retail Software Products to Indian Distributors as royalty under the Act as well as under DTAA between India and US. The assessment in the hands of present assessee was made on protective basis while the substantive assessment was in the hands of MOLC. The assessments in the hands of Gracemac which stands amalgamated with MOLC stands set aside in regard to assessment years 2005-06, 2006-07 and 2007-08 by the co-ordinate Bench’s judgment dated 16.11.2020 which have been further upheld by Hon’ble Delhi High Court by judgment dated 07.03.2022. The same were based on the principles of law that sale of software products does not give rise to royalty income as laid down in Infrasoft Ltd.[2013 (11) TMI 1382 - DELHI HIGH COURT] case which have now further been affirmed by the Hon’ble Supreme Court of India in the case of Engineering Analysis Centre of Excellence P. Ltd. (2021 (3) TMI 138 - SUPREME COURT] There are no distinguishing facts with regard to present assessment years.
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