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2016 (6) TMI 96 - ITAT MUMBAI

2016 (6) TMI 96 - ITAT MUMBAI - TMI - Royalty - Existence of Permanent Establishment in India - TDS liability - software purchase - DTAA - payment made to M/s. Paradigm Geophysical Pty.Ltd., Australia (Paradigm) for supply of certain Geological and Seismic Data Interpretation Software - Held that:- The purchase orders were made by the assessee for the softwares as mentioned in column No.5, prior to the bringing of amendment vide Finance Act, 2012, though the amendment has been made with retrospe .....

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d that if an explanation added to a provision changes the law, then it is not to be presumed to be retrospective irrespective of the fact that the phrase used are ‘it is declared‘ or ‘for the removal of doubts‘.

As it is an admitted position that in the earlier years, not only the various High Courts but also the Tribunal in the cases of the assessee has taken a view that the consideration paid for the purchase of the software cannot be treated as royalty; the assessee was, thus, un .....

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t there was no liability to deduct tax in respect of the consideration paid for the said purchase of software. It may be further observed that as the definition as was in existence before the insertion of Explanation 4, there was a remote possibility to give a broad interpretation to the definition of ‘right, property or information‘ so as to include the right to use or right for use of the software in the said definition. The Explanation 4 has brought and added a further meaning to the provisio .....

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nnot be applied retrospectively to the case of the assessee as the said Explanation 4 has the effect of change in law and the assessee was not expected to foresee such change at the time of making the remittance in consideration of purchase of the software in question. Hence, under such circumstances, even otherwise, the assessee was not supposed to deduct TDS on such purchases.

In the light of the law laid down by the Hon‘ble Supreme Court in the case of “Sedco Forex International Dr .....

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2011, ITA No.2728/M/2012, ITA No.3219/M/2012 - Dated:- 18-5-2016 - SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER For The Assessee : Shri Jasbir Chauhan, D.R. For The Revenue : Shri Sunil Moti Lala & Shri Rajesh Lakhara, A.Rs. ORDER Per Sanjay Garg, Judicial Member: The above titled appeals by the Revenue, but two by the assessees have been preferred against the different orders of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] .....

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/supplier of the software, not taxable in India as per the provisions of DTAA with that respective country. It is pertinent to mention here that the facts in ITA No. 5829/M/2009 and 5264/M/2009 are a bit different on the aspect that the software in these cases had been purchased by the assessee from the resident of Hong Kong with which India has no tax treaty/ DTAA. We will discuss the effect of absence of DTAA in the above stated two appeals in the latter part of this order. 3. The assessees he .....

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ia, whereas, the contention of the assessees is that the same does not constitute royalty hence not taxable in India and they, therefore, were not liable to withhold tax upon the said consideration paid. 4. Before proceeding further, we list out below the appeal wise, name of the party and the name of the country from whom the assessees had purchased the software and also the brief description of the software supplied along with the date of purchase order etc. Name of assessee: Reliance Industri .....

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01-GEL-E1-CG-S-426-ME dated 17.02.2003 with M/s. Paradigm Geophysical Pty. Ltd. Australia (Paradigm) for supply of Geological and Seismic Data Processing/Interpretation Software for its Oil & Gas business. Copy of the agreement and copy of purchase order was filed by the assessee before the AO along with the application u/s.195 seeking remittance of US$ 5,27,250/- without deduction of tax. The assessee explained to the Assessing Officer that Paradigm was a company registered in Australia and .....

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the DTAA. 7. The AO, however, observed that the assessee had only got a license to use the software and that no other title or interest in the software was transferred to the payer/assessee, hence, there was no question of sale of software per se. He, further, observed that if at all there was an element of sale, it was only in respect of career media i.e. the CD (Compact Disk) in which the software was transacted/loaded. He, therefore, observed that there was enormous difference in the values o .....

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he Act in respect of such payments. He, accordingly, vide order dated 16.08.04 directed the assessee to deduct TDS at the rate of 17.65% on the gross amount of license fees payable to M/s. Paradigm Geophysical Pvt. Ltd. (foreign resident). He therefore rejected the petition of the assessee moved under section 195(2) of the Act. 8. In appeal, the Ld. CIT(A) relying upon the definition of royalty as provided under the DTAA of India with Australia and following his own decision dated 29/10/2007 in .....

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definition of royalty under the DTAA did not cover the payment for purchase of software as royalty, provisions of section 9(1)(vi) would be immaterial. He held that vide the agreement in question, assessee got the right to use the software for its internal business purpose only and not for commercial exploitation. That the assessee did not receive any copyright over the software. Since the M/s. Paradigm Geophysical Pvt. Ltd. hadn t any PE (Permanent Establishment) in India, business profits of t .....

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erpretation Software is only business income of Paradigm and in the absence of any Permanent Establishment in India, the business profit arising in the transaction is not taxable in India. 2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) failed to appreciate that the payment for the supply of certain Geological and Seismic Data Interpretation Software is in the nature of royalty which is liable for taxation in India. 3. The Appellant prays that the order of the Ld.C .....

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under section 195(2) of the Act and hence, the assessee has come in appeal in the said cases. 11. We have heard the rival contentions of the ld. Representatives of the parties. We note that both the lower authorities have relied upon the following clauses of the license agreement in arriving out at their respective conclusions. "1.1. Software SELLER'S Proprietary software tool/products for application in Processing/ Interpretation of Seismic data in Oil and Gas Exploration industry. 1. .....

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s are the Supplied number of software Copies. The Software copy shall be fully functional permanently. The Software copy shall provide complete authorization to BUYER with regards to its usage. SELLER shall indemnify the BUYER against breach of any intellectual property or Patent regulations in developed, maintaining or selling of the software tools." 12. From the above, the undisputed facts before us are that the software purchased by the assessee was operational software for the internal .....

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ully functional permanently. The agreement of the assessee with the supplier of the software provided complete authorization to the asessee with regard to its usage. It is also undisputed that the software purchased by the assessee was a standardized software for use in the own business of the assessee only. The assessee had not been given any commercial right to reproduce and sell the copies of the software. The party from whom the assessee acquired the software was not having any permanent est .....

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upheld by the Tribunal. The Ld. D.R., however, though, has admitted that the identical issue in earlier years has already been decided by the different co-ordinate benches of the Tribunal in favour of the assessee, however, has submitted that there is a change of position of law in view of the recent decisions of the Hon ble Karnataka High Court in the case of CIT vs. Samsung Electronics Co. Ltd. and others (2012) 345 ITR 494 and in the case of CIT vs. Synopsis International Old Ltd. (2013) 212 .....

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the seller; that the assessee was just given a license to use the software, which was only the right to use of copyright in the software. He has further contended that the Tribunal in the case of Reliance Infocom Ltd. (supra) has relied upon the decision of the Hon ble Karnataka High Court in the case of CIT vs. Samsung Electronics Company Ltd. & Others (2012) 345 ITR 494 and upon another decision of the Hon ble Karnataka High Court in the case of CIT vs. Synopsis International Old Ltd. (20 .....

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reaty as provided in the DTAA for determining the tax liability of the assessee in this respect. 14. The contention of the Ld. A.R. of the assessee, on the other hand, has been that the issue has already been decided in favour of the assessee in earlier assessment years by the co-ordinate bench of the Tribunal and that there hasn t been any change of facts. He has further contended that since there is a DTAA of the assessee with the countries of which the sellers of the software were the residen .....

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containing the software, purchased by the assessee, would fall in the definition of goods as defined in the Sale of Goods Act and the consideration paid was the sale price of the goods and not the royalty and hence the assessee was not liable to deduct TDS on the payment for the purchase of goods from the foreign company as the same was business income in the hands of the recipient. The Ld. A.R. of the assessee, in this respect has relied upon the decision of the Hon ble Delhi High Court in the .....

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re are two views possible regarding the interpretation of a provision, the construction which favours the assessee is to be taken. He has further submitted that the amendment brought in the Income Tax Act, 1961 cannot be read into the treaty. He has also submitted that at the time of the purchase of the alleged software, no such Explanation 4 was introduced in the Income Tax Act and there was no intuition to the assessee that such an amendment will be brought into relevant provision. The assesse .....

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Tribunal in the own case of the assessee. He, in this respect, has relied upon the following decisions of the co-ordinate benches of the Tribunal in the own cases of the assessee, wherein the identical issue has already been decided in favour of the assesse: 1. DDIT vs. Reliance Industries Ltd. in ITA No.1124/M/2008 43 SOT 506 (Mum) 2. DDIT vs. Reliance Industries Ltd. in ITA Nos.1124 & 2526/M/2008 3. DDIT vs. Reliance Industries Ltd. in ITA Nos.1128, 1130 & 1132/M/2008 4. DDIT vs. Relia .....

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relying upon the decision of the Hon ble Madras High Court in the case of Vrizon Communication Singapore vs. ITO 361 ITR 0575 (Mad.) has contended that in Para 100 of the said decision, the Hon ble Madras High Court has observed that the definition of royalty under DTAA and the Indian Income Tax are in paramateria. He has further stated that the said decision of the Hon ble Madras High Court in the case of Vrizon Communication Singapore (supra) has been followed by the Mumbai Bench of the Tribun .....

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inition of royalty and that it should be read along with the definition of royalty as provided under the DTAA. He therefore has contended that the consideration paid by the assessee for the use of software is to be treated as royalty. On the other hand the contention of the Ld. AR of the assessee has been that if the provisions of DTAA are more beneficial to the assessee then the same would prevail over the provisions of the Income Tax Act as provided under section 90 of the Income Tax Act. He, .....

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sion is reproduced as under: Section 9(1) (vi) income by way of royalty payable by- (a) the Government ; or (b) a person who is a resident, except where the royalty is payable in respect of any right, property or information used or services utilised for the purposes of a business or profession carried on by such person outside India or for the purposes of making or earning any income from any source outside India ; or (c) a person who is a non-resident, where the royalty is payable in respect o .....

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ng or specification relating to any patent, invention, model, design, secret formula or process or trade mark or similar property, if such income is payable in pursuance of an agreement made before the 1st day of April, 1976, and the agreement is approved by the Central Government : Provided further that nothing contained in this clause shall apply in relation to so much of the income by way of royalty as consists of lump sum payment made by a person, who is a resident, for the transfer of all o .....

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in accordance with proposals approved by the Central Government before that date; so, however, that, where the recipient of the income by way of royalty is a foreign company, the agreement shall not be deemed to have been made before that date unless, before the expiry of the time allowed under sub-section (1) or sub-section (2) of section 139 (whether fixed originally or on extension) for furnishing the return of income for the assessment year commencing on the 1st day of April, 1977, or the a .....

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ncluding any lump sum consideration but excluding any consideration which would be the income of the recipient chargeable under the head "Capital gains") for- (i) the transfer of all or any rights (including the granting of a licence) in respect of a patent, invention, model, design, secret formula or process or trade mark or similar property ; (ii) the imparting of any information concerning the working of, or the use of, a patent, invention, model, design, secret formula or process o .....

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respect of any copyright, literary, artistic or scientific work including films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting, but not including consideration for the sale, distribution or exhibition of cinematographic films ; or (vi) the rendering of any services in connection with the activities referred to in sub-clauses (i) to (iv), (iva) and (v). Explanation 3.-For the purposes of this clause, "computer software" means .....

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which such right is transferred. Explanation 5.-For the removal of doubts, it is hereby clarified that the royalty includes and has always included consideration in respect of any right, property or information, whether or not- (a) the possession or control of such right, property or information is with the payer; (b) such right, property or information is used directly by the payer; (c) the location of such right, property or information is in India. Explanation 6.-For the removal of doubts, it .....

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d reproduced by the Tribunal in the case of Reliance Infocom (supra), which or the sake of convenience are further reproduced as under: 1. USA: Article 12(3) The term "royalties" as used in this article means: a. payments of any kind received as consideration for the use of, or the right to use, any copyright of a literary, artistic, or scientific work, including cinematograph films or work on film, tape or other means of reproduction for use in connection with radio or television broa .....

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bed in paragraph 1 of article 8 (Shipping and Air Transport) from activities described in paragraph 2(c) or 3 of article 8. 2. Israel: Article 12(3) The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, co .....

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ment, or for information concerning industrial, commercial or scientific experience. 4. Sweden: Article 12(3)(a) The term "royalties" as used in this article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience. 5 .....

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from the alienation of any such right, property or information; b. any industrial, commercial or scientific equipment, other than payments derived by an enterprise from activities described in paragraph 4(b) or 4(c) of Article 8. 6. Japan: Article 12(3) The term "royalties" as used in this article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films and films or .....

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ion for: a. the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trade mark, or other like property or right; b. the use of, or the right to use, any industrial, commercial or scientific equipment; c. the supply of scientific, technical, industrial or commercial knowledge or information; d. the rendering of any technical or consultancy services (including those of technical or other personnel) which are ancillary and subsidiary to the applicat .....

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to in sub-paragraphs (a) to (e); or g. the rendering of any services (including those of technical or other personnel) which make available technical knowledge, experience, skill, know-how or processes or consist of the development and transfer of a technical plan or design; but that term does not include payments or credits relating to services mentioned in sub-paragraphs (d) and (g) that are made; h. for services that are ancillary and subsidiary, and inextricably and essentially linked, to a .....

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or for the use of or the right to use industrial, commercial or scientific equipment, other than an aircraft, or for information concerning industrial, commercial or scientific experience; 8. Canada: Chapter III Article 12(3) The term "royalties' as used in this Article means: a. payment of any kind received as a consideration for the use of, or the right to use, any copyright of a literary, artistic, or scientific work including cinematograph films or work on film tape or other means o .....

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use of, or the right to use, any industrial, commercial, or scientific equipment, other than payments derived by an enterprise described in paragraph 1 of Article 8 from activities described in paragraph 3(c) or 4 of Article 8. 9. United Kingdom of Britain and Northern Ireland: Article 13(3) For the purposes of this Article, the term "royalties" means: a. payments of any kind received as a consideration for the use of, or the right to use, any copyright of a literary, artistic or scien .....

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Contracting State from the operation of ships or aircraft in international traffic. 10. Netherlands: Chapter III Article 12(4) The term "royalties" as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including cinematograph films, any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientifi .....

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s agreed by both the representatives of the parties also, we take the base definition of royalty as provided in treaty with USA. 20. A comparison of the definition of royalty as provided under the DTAA (USA), as reproduced above, with the definition of royalty as provided under Income Tax Act shows that the same are not in paramateria with each other. The definition provided under the DTAA is the very short and restrictive definition, whereas, the definition of the royalty as provided under the .....

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or the right to use any copyright of literary, artistic, scientific work including ….. (emphasis supplied by us). Hence, what is relevant is the consideration paid for the use of or the right to use any copyright . The right to use a computer software/programme has not been specifically mentioned in the DTAA with any country. We may clarify here that the contention of the revenue is that the term literary work includes software also, which contention we will discuss in the latter part of .....

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ign resident would constitute royalty, one requires to draw inference from the wording of exception to clause (b). Even, if we draw inference from the exception under clause (b) read with the wording in clause (c) which is in relation to a payment made by a non resident, even then, what the royalty , under the Act, may constitute will be the income payable in respect of any right , property or information used or services utilized for the purpose of business or profession by such resident to a n .....

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be included within the scope or definition of literary work under section 9(1)(vi) of the Act. The term literary work has been separately mentioned under clause (v) to Explanation 2 to include the consideration paid for the same within the scope of royalty, whereas, the Explanation 4 has broadened the scope of clauses (a) (b) and (c) of section 9(1)(vi) to include computer software under the definition of right , property or information. Hence, the computer software has been recognized as a sepa .....

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der the definition of royalty under the DTAA. 21. Under the circumstances, it cannot be said that the definition of royalty as under the Income Tax Act is in paramateria with that under the DTAA. Since the definition provided under the royalty in the DTAA is more beneficial to the assessee, hence as per the provisions of section 90, the definition of royalty as provided under DTAA is to be taken. So far as the reliance of the Ld. D.R. on the decision of the Hon ble Madras High Court in the case .....

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same was not available in the DTAA. However, in the case in hand, we have to define the term literary work and the term copyright ; the definitions of the same are not available under the Income Tax Act, but, the same are available under the Copyright Act, 1957. 22. The Hon ble Delhi High Court in the case of DIT vs Nokia Networks OY [2012] Taxmann.com 225 (Delhi) has held that though Explanation 4 was added to section 9(1)(vi) by the Finance Act 2012 with retrospective effect from 1.6.1976 to p .....

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venience are reproduced as under: However, the above argument misses the vital point namely the assessee has opted to be governed by the treaty and the language of the said treaty differs from the amended Section 9 of the Act. It is categorically held in CIT Vs. Siemens Aktiongesellschaft, 310 ITR 320 (Bom) that the amendments cannot be read into the treaty. On the wording of the treaty, we have already held in Ericsson (supra) that a copyrighted article does not fall within the purview of Royal .....

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e same retroactive effect on an international instrument affected between two sovereign states prior to such amendment. That an amendment to a treaty must be brought about by an agreement between the parties. Unilateral amendments to treaties are therefore categorically prohibited. Even the Parliament is not competent to effect amendments to international instruments. As held by the Hon ble Supreme Court in Azadi Bachao Andolan (2003) 263 ITR 607, these treaties are creations of a different proc .....

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dments to domestic law cannot be read into treaty provisions without amending the treaty itself. It is fallacious to assume that any change made to domestic law to rectify a situation of mistaken interpretation can spontaneously further their case in an international treaty. Therefore, mere amendment to Section 9(1)(vi) cannot result in a change. It is imperative that such amendment is brought about in the agreement as well. Hon ble Delhi High Court concluded in the said decision (supra) that th .....

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on by both the Ld. Representatives of both the parties, i.e. not only in the decisions relied upon by the assessee of the Hon ble Delhi High Court in the case of Infrasoft Ltd. (supra) and Ericson A.B. (supra), but also in the decisions relied upon by the Revenue i.e. Samsung Electronics Company Ltd. & Others (supra), Synopsis International Old Ltd. (supra) and of the Tribunal in the case of Reliance Infocom Ltd. (supra), the different Benches of the High Courts and the Tribunal have been un .....

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y is restrictive in DTAA whereas the definition of royalty under the Income Tax Act is broader in its content; Therefore, the definition of royalty in DTAA is more beneficial to the assessee and hence the case of the assessee is to be examined in the light of the definition of royalty as provided in the DTAA and that the provisions of the DTAA will, in such an event, override the provisions of the Income Tax Act. Since, in the cases in hand also, the Ld. AR of the assessee has stated that the de .....

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y covers the payment made as a consideration for the use of, or the right to use, any copyright of a literary work but also for certain other rights/items such as any patent, trade mark, design or model, plan, secret formula or process, or for information concerning industrial, commercial or scientific experience, scientific equipment etc. However, the Ld. DR has neither stressed nor has advanced any argument as to that software falls in any of the above mentioned other categories. All the conte .....

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e has been discussed by the Hon ble Karnataka High Court in the case of Samsung Electronics Company Ltd. & Others (supra) while relying upon Article 3 sub section (2) of the DTAA with US, observing that any term not defined in the convention shall, unless the context otherwise requires, have the meaning which it has under the laws of that State concerning the tax to which the convention applies. Hence, the reference is to be made to the respective law of the taxing State (India in this case) .....

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ther the term literary work as mentioned in the definition of royalty in the treaty would include software or not? We note that the term 'Literary work' covers work, which is expressed in print or writing irrespective of the question of its literary merit or quality. It must be expressed in some material form, i.e. writing or print or in some form of notation or symbols, which means in a form capable of either visually or audibly recreating the representation of the original work. As per .....

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an integral part of the computer system, but now a days, software products are sold or licensed in the form of computer readable media such as diskettes and CD-ROMs or directly over the Internet. The software sale/purchase contracts involve two distinct parties who could discuss all the terms of such agreement between them. The rights assigned by the author/owner of the software would be very specific in their scope, indicating clearly to the purchaser the actions that he/she is permitted to per .....

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ng of the same without permission, would be unlawful. In Software Licences, the copyright owner retains substantial rights and greater ability to control the use of software. Licence may have provisions relating to the persons who may use the programme, the number of copies that can be made, warranty, limitation of liability, distribution of the software, etc. These are generally biased towards the licensor. Now, the question before us is as to whether the sale of such computer software by the n .....

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rs (2012) 345 ITR 494 wherein it has been observed that under the agreement, what had been transferred was only a license to use the copyright belonging to the non-resident subject to the terms and conditions of the agreement and that the non-resident supplier continued to be the owner of the copyright and all other intellectual property rights; license is granted for making use of the copyright in respect of software under the respective agreement and that the same would amount to transfer of p .....

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ght. Even if it is not a transfer of exclusive right in the copyright, the right to use the confidential information embedded in the software in terms of the license makes it abundantly clear that there is transfer of certain rights which the owner of a copyright possesses in the said computer software/programme in respect of the copyright. The Hon ble Karnataka High Court while analyzing the provisions of the DTAA held that the consideration paid for the use or right to use the said confidentia .....

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o the licensee to make use of the copyrighted product for his internal business purposes. The said process is necessary to make the program functional and to have access to it. Apart from such incidental facility, the licensee has no right to deal with the product just as the owner would be in a position to do. The Hon ble Delhi High Court has observed that in such a case there is no transfer of any right in respect of copyright to the assessee and it is a case of transfer of a copyrighted artic .....

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sident. The Hon ble Delhi High Court in the case of Infrasoft Ltd. (supra) has also relied upon another decision of the Hon ble Delhi High Court in the case of DIT vs. Nokia Networks OY (2013) 212 taxman 68 wherein the Hon ble Delhi High Court has held that the copyright is distinct from material object. It is intangible, incorporeal right in the nature of privilege, quite independent of any material substance such as manuscript. The transfer of the ownership of a physical thing in which copyrig .....

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ods Act, 1930 defines 'goods' as 'every kind of movable property other than actionable claims and money, and includes stock and shares, growing crops, grass....' This definition of 'goods' thus includes all types of movable properties, whether tangible or intangible. The Hon ble Supreme Court in the case of Tata Consultancy Services vs State of Andhra Pradesh 271 ITR 401 (2004), has considered computer software as 'goods' and stated that notwithstanding the fact t .....

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ld become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of being transmitted, transferred, delivered, stored and possessed. If a software whether customized or non-customized satisfies these attributes, the same would be goods.' The Hon ble Apex court while citing the decision of the US court in Advent Systems Ltd v Unisys Corporation (925) F 2d 670 (3rd Cir 1991), held that a computer program may be copyr .....

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goods . The Hon ble Supreme Court held that all tangible, movable articles are goods for charge of custom duties under section 12 read with section 2(22)(e) of the Customs Act, 1962, irrespective of what the article may be or may contain. It may be that what the importer wanted and paid for was technical advice or information technology, an intangible asset, but the moment the information or advice is put on media, whether paper or cassette or diskette or any other thing, that what is supplied, .....

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e is loaded. As understood by us, what the computer programme or the software is an expression of work/ideas written on a media in a computer programming language and that is why it has been included worldwide in the category of literary work. As per the definition provided in section 2 (ffc) of the Indian Copyright Act 1957 "Computer Programme" means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a .....

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or any other such device. An author of a literary work may be having some ideas in his mind in an intangible form but the copyright in those ideas is created only when they are expressed in a particular manner in the shape of some impressions, symbols or language or visuals etc. on a media such as book, film or CD or screen etc. Now a days, not only the computer programmes, but also, the other literary work can be transmitted over the internet from one media/computer to the other media /compute .....

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opy right, right to practice some profession or noncompeting right etc.; Once incorporated on a media, it become goods and cannot be to be said to be copy right in itself; however a copy right can be created in respect of such computer software / ideas expressed on a media. Further the copyright doesn t protect the idea itself but only protects the way or the manner in which such ideas are expressed. 31. In the case in hand, the software has been embedded in a disk. The assessee/purchaser after .....

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and he is entitled to fair use of the product. The restriction or the terms mentioned in the agreement are the conditions of sale restricting misuse and cannot be said to be license to use. The purchaser, thus, is entitled to perform all or any of the activities which is essentially required for the fair use for the purpose for which the product is purchased by him. Section 52 of the Copyright Act expressly recognizes such a right of the purchaser, which we will discuss in later part of this ord .....

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it is a license to use the software itself or the copy right in the software. The contention of the Revenue is that in case of software Licenses, the copyright owner gives a license to use the copyright in the software and that the owner of software exercises power over not only the software itself, but also, over people who may wish to use the software and that the owner of the software decides who will use his work. It has therefore been strongly contended on behalf of the Revenue that it is t .....

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m use of copy right in software and use of software itself. To constitute royalty under DTAA, it is the consideration for transfer of use of copyright in the work and not the use of work itself. In our view, the sale of a CD ROM/diskette containing software is not a license but it is a sale of a product which of course is a copyrighted product and the owner of the copyright by way of agreement puts the conditions and restrictions on the use of the product so that his copyrights in such copyright .....

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duct. The purchaser is always entitled to fair use of the work which he has purchased. The terms of agreements in case of software are thus the conditions of the sale of the product. 33. Further, a question, which needs to be examined whether the statutory rights of the purchaser/user of the software can be curtailed or done away with by the terms of such licenses/ agreements. A License Agreement, in spite of the fact that it may fulfill all the requirements of a valid contract, such an agreemen .....

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rticle is the other plea which contradicts the license theory. As per the provisions of section 52 of the Copyright Act 1957, which has provisions similar to the provisions of section 117 of the US Copyright Act, the owner of a copyright of computer software is legally entitled to fair use that copy of software even without a license from the software publisher and any condition put in a license restricting the fair or reasonable use of the product purchased by the buyer in that respect will hav .....

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software publisher and that the user will have only right to use the software is to be looked in terms of the Indian Contract Act to arrive at a conclusion whether such a condition is reasonable and is not against the public policy or whether it is restricting the fair use of right of the user/purchaser of the product. It is also a determinative factor as to whether the property in the goods after buying the product/ software CD has passed on to the purchaser or not as per the provisions of Sale .....

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at the most can be assumed is that the licensor/owner has granted the right to use the software. It doesn t in any manner gives any inference that the seller/licensor has given/licensed the copyright in the software. It may also be pointed out here that whether such an license agreement is signed or not by the licensee/purchaser, still the owner of the product will have the copyrights in such a product, as are defined and explained under the Indian Copyright Act; even the registration of the pro .....

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y to harm the potential market or the value of the copyrighted work. When it is not the allegation of the owner/purchaser of the work that the purchaser/user was reproducing the work and distributing it so as to affect his potential market in exercising the reproduction right, then it cannot be said that the user has infringed the rights of the purchaser, who in fact has paid the consideration to use the copyrighted work. The use of the product itself by the purchaser for the purpose for which h .....

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nnot be patented. The computer software, subject to certain exception, has been specifically excluded from patentable items under the Patents Act, 1970. 35. At this stage, we think it appropriate to discuss here the relevant provisions of the Copyright Act, 1957 also. The copyright has been defined under section 14 of the Copyright Act, 1957 as under: 14. Meaning of copyright - For the purposes of this Act, copyright means the exclusive right subject to the provisions of this Act, to do or autho .....

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sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-cls. (i) to (vi); (b) in the case of a computer programme,- (i) to do any of the acts specified in cl. (a); (ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such c .....

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se (b) of section 14 vests in the owner of the work such as to reproduce the work, to issue copies, to make translation or adaptation, to sell or give on commercial rental in respect of a work. The internal use of the work for the purpose it has been purchased does not constitute right to use the copy right in work. Our above view also finds support from certain other provisions of the Copyright Act, which we discuss in the following paras. 37. Section 51 of the copyright Act deals as to when th .....

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to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or (b) when any person- (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays .....

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l or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy" 38. Certain provisions of section 52 of the Copyright Act which are relevant are also reproduced as under: 52. Certain acts not to be infringement of copyright.-(1) The following acts shall not constitute an infringement of copyright, namely: (a) a fair dealing with a literary, dramatic, musical or artistic work 104 [not being a computer programme] for the purposes of- private use, includi .....

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doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available; (ac) the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions f .....

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e right- (a) to claim authorship of the work; and (b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation: Provided that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer programme to which clause (aa .....

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fringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights covered by the copyright statue. Further there are certain exceptions also. As per the proviso to sub clause (iv) to the clause (b) to section 51, import into India of one infringing copy of any work for the private and domestic use of the importer will not be considered as infringement. Further, the section 52 of the Act provides for certain other exceptions and the .....

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the computer programme and further the doing of any act necessary to obtain information essential for operating inter operatability of an independently created computer programme with other programmes in case such information is not otherwise readily available, the observation, study or test of functioning of computer programme with determination, the ideas and principles necessary for the functions for which the computer programme was supplied and the making of copies or adaptation of computer .....

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if we apply the provisions of Income Tax to define the scope of Literary Work , then perhaps the computer software will be out of the scope of the term royalty as defined under the DTAA. However, if we apply the Copyright Act, then the computer software will have to be included in the term literary work but to constitute royalty under the treaty, the consideration should have been paid for the use of or the right to use the copyright in the literary work and not the literary work itself. 42. Fur .....

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viso to section 57 of the Copyright Act has further clarified that the author of the work shall not have right to restrain or claim damages in respect of any adaptation of a computer programme to which clause (aa) of sub section (1) of section 52 applies. 43. Further in case of imported software i.e. if the original work has been published outside India, as per the provisions of the Copyright Act, apart from the work being original and not copied from elsewhere, the work should be first publishe .....

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r any provisions of this Act shall apply to the work published or unpublished in any territory outside India. Such a right is extended in relation to countries which have entered into a treaty or which are a party to a convention relating to rights of the copyright owners and have undertaken to make such provisions in their laws in relation to the Indian authors for protection of their rights in their country. Sections 40, 40A and section 41of the Copyright Act, 1957 are relevant in this respect .....

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in their copyrighted work, the India also allows the copyright to the foreign authors on reciprocal basis. So a foreign author can claim the copyright in a product, if India has a treaty with that country or if India and that other country are signatories of the certain international treaties or conventions e.g. Berne convention to which India is a signatory. Under such circumstances, in respect of works done in foreign countries or by foreign authors, the copyright does not automatically flow o .....

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ssee i.e. whether the copyright itself has been purchased or what the assessee has purchased is only a copyrighted work . It is also required to be analysed as to whether the use of such right would amount to infringement of copyright if a license or permission in this respect is not given by the owner; and when assessee has purchased a copyrighted product, whether the use of the same for the business purpose of the assessee is covered within the exceptions as provided under section 52 of the Co .....

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52, such as the use of it for the purpose for which it is supplied and to make backup copies for temporary purpose as a protection against loss or damage and doing of any act necessary to obtain information essential for operating the software for the purpose for which it is purchased etc. as provided under section 52of the copyright Act, then in that event it cannot be said to be an infringement of copyrights of the author or owner of the work. Even the Hon ble Karnataka High Court in the case .....

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isions/domestic law of the country i.e. Copyright Act,1957 of India (the taxing State in this case), it is apparent that the fair use of the work for the purpose of which it is being purchased and doing of such other acts including making of copy for protection from damage or loss cannot, in any case, said to be any infringement of copyright whether or not any license in this respect has been granted by the author/owner of the work. The right to use or for use of the product accrues to the purch .....

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TAA. The consideration, thus, paid will be the business income of the non-resident and taxable in accordance with the provisions of DTAA. We may clarify here that even in cases where the owner of the copyrighted work may restrict the use of or right to use the work by way of certain terms of the license/software agreement, the validity or the enforceability of the same may be subject matter in other laws such as Indian Contract Act 1872 , Sale of goods Act 1930 or the Consumer Protection Act 198 .....

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ty has been discussed. The Tribunal in para 12.1 of the said order(supra) has observed that in the India-UK Treaty, in para 3(a) of Article 13 which deals with the definition of royalty in the relevant India-UK Treaty, there was no specific mention of word computer software along with other terms such as literary, artistic or scientific work, patent, trade mark etc. The Tribunal observed that such a language of the India-UK DTAA was in sharp contrast to the specific use of the term computer soft .....

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er: To illustrate, Article 12 of the DTAA between India and Malaysia defines 'Royalties' to mean 'payments of any kind received as consideration for the use of or right to use any copyright of a literary, artistic or scientific work……….. plan, knowhow, computer software programme, secret formula or process…..' Similarly, the DTAA between India and Kazakhstan defines the term 'royalties' in Article 12(3)(a) to mean : 'payments of any kind re .....

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ever the Government of India intended to include consideration for the use of software as 'Royalties', it explicitly provided so in the DTAA with the concerned country. Since Article 13(3)(a) of the DTAA with UK does not contain any consideration for the use of or the right to use any 'computer software', the same cannot be imported into it. 47. The above analysis made by the Tribunal (supra) of various tax treaties of India with other countries clinches the issue. Even at the co .....

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as such. We, therefore, fully agree with the observations of the co-ordinate bench of the Tribunal in the case of Datamine International Ltd. vs. ADIT (supra) that wherever the Government of India intended to include consideration for the use of software as 'Royalties', it explicitly provided so in the DTAA with the concerned country viz. Malaysia, Kazakhstan and Turkmenistan. We find that in the cases before us, in the DTAA of India with respective countries (names mentioned in the char .....

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the DTAA. 49. In view of our detailed discussion made above, the assessee cannot be said to have paid the consideration for use of or the right to use copyright but has simply purchased the copyrighted work embedded in the CD- ROM which can be said to be sale of good by the owner. The consideration paid by the assessee thus as per the clauses of DTAA cannot be said to be royalty and the same will be outside the scope of the definition of royalty as provided in DTAA and would be taxable as busin .....

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before us. In the case laws cited by the Revenue of the Hon ble Karanatka High Court in the matter of CIT vs. Samsung Electronics Company Ltd. (supra) and CIT vs. Synopsis International Old Ltd. (supra ), though, a view in favour of the Revenue has been taken, but the Hon ble Delhi High Court in the case of DIT vs. Infrasoft Ltd. (supra), which is a latter decision, has discussed the Samsung case also and has taken the view in favour of the assessee. The Hon ble Delhi High court has taken the i .....

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P. (2008) 14 VST 259(SC) : (2008) 5 S.C.C. 680 has held that, if two views in regard to the interpretation of a provision are possible, the Court would be justified in adopting that construction which favours the assessee. Reliance can also be placed in this regard on the decision of Hon ble Supreme Court in Bihar State Electricity Board and another vs. M/s. Usha Martin Industries and another : (1997) 5 SCC 289. We accordingly adopt the construction in favour of the assessee. 51. The Ld. A.R. of .....

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ng of license has been included in the definition of the term right, property or information, the consideration paid for which has been deemed to be income by royalty under section 9(1)(vi) of the Act. He has stated that the said explanation though preceded with the phrase it is hereby clarified and is followed by the words includes and has always included yet the said explanation cannot be applied retrospectively. He has stated that vide said explanation, computer software has been specifically .....

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pect of any copyright in literary, artistic or scientific work was to be considered in the definition of royalty. He has further stated that the above clause (v) to Explanation 2 to section 9(1)(vi) as discussed above was in paramateria to the definition of royalty as provided under the treaty. He, therefore, has contended that in view of this, the assessee was not supposed to deduct TDS on the remittance made for the purchase of software prior to the bringing of amendment/insertion of Explanati .....

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2010 (supra) and 26.11.2010 (supra) and also various other orders in the case of assessees in the earlier assessment years has contended that the different benches of the Tribunal have upheld the findings in relation to the interpretation of the provisions of section 9(1)(vi) made by the first appellate authority [CIT(A)] which has been summed up in the following points: (a) It is now established law that Computer software after being put on to a media then sold, becomes goods like any other Aud .....

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e Income-tax Act, 1961 that in such a situation the provisions of the Double Taxation Avoidance Agreement override the domestic law. (c)That the assessee has purchased a copyrighted article and not the copyright. There is no transfer of any part of copyright. (d) As what is paid is not "royalty" under the Indo-US DTAA, and as it is covered Article 7, which deals with "Business Profit" and as the foreign party does not have Permanent Establishment in India, the same is not tax .....

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vs. ACIT (2014) 49 taxman.com 531 (Mum-Trib.). He has also relied upon the decision of the co-ordinate bench of the Tribunal in the case of JM Morgan Stanley Securities Pvt. Ltd. vs. ACIT in ITA No.6340/M/2004 decided vide order dated 05.03.2007 wherein the Tribunal has taken a view that wherein an earlier case a specific view has been taken in the case of an assessee, then the consistency should be maintained in the subsequent year on identical set of fact and circumstances. 53. The Ld. D.R., .....

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rior to the bringing of amendment vide Finance Act, 2012, though the amendment has been made with retrospective effect from 01.06.1976. However, we find that the said amendment vide which the Explanation 4 has been inserted to section 9(1)(vi) has the effect of change in the law as was existing and even interpreted by the various higher courts of the country prior to the insertion of Explanation 4 in the said provision. By the introduction of the said Explanation 4, computer software has been sp .....

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at the phrase used are it is declared or for the removal of doubts . As it is an admitted position that in the earlier years, not only the various High Courts but also the Tribunal in the cases of the assessee has taken a view that the consideration paid for the purchase of the software cannot be treated as royalty; the assessee was, thus, under the bonafide belief that no TDS/withholding of tax was required to be done in respect to said purchases. The assessee had no reason to believe or to for .....

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tion as was in existence before the insertion of Explanation 4, there was a remote possibility to give a broad interpretation to the definition of right, property or information so as to include the right to use or right for use of the software in the said definition. The Explanation 4 has brought and added a further meaning to the provision which was not supposed to be foreseen by the assessee. The co-ordinate bench of the Tribunal in the case of Rich Graviss Products (P.) Ltd. vs. ACIT (supra) .....

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