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TMI Blog2016 (8) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... industry and operating application software which is an integral part of the said machine. It also sells spare parts and application software based on usage of the software. The said machines can be operated only if the operating application software is installed in the machine. The assessee was of the view that the payments received for sale of such operating/application software did not constitute 'Royalty' under the India- Israel DTAA and therefore no withholding of tax was required to be made in respect of such receipts from sale of application software. In these factual circumstances, the assessee filed its return of income for A.Y. 2012-13 on 05.10.2013 and a revised return on 28.03.2014 declaring total income at Nil. The case was selected for scrutiny. The draft order of assessment was passed under section 144C(1) r.w.s. 143(3) of the Act vide order dated 23.02.2015 wherein the income of the assessee was determined at Rs. 74,24,17,360/- in view of the Assessing Officer (AO) holding that the above amount of Rs. 74,24,17,360/- received by the assessee from sale of operating/application software, spare parts and hardware supplied during the year under consideration is exigible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... software like the payment for supply of the hardware was in the nature of business profits not liable to tax in India in the absence of a permanent establishment of the appellant in India. 4. Without prejudice, the assessing officer erred on facts and in law in not appreciating that the software supplied to the customers in India only resulted in their acquiring a 'copyrighted article' and not a 'copyrighted right' and that the payment for the same did not constitute 'royalty' as defined in Article 12(3) of the Treaty and was hence not liable to tax in India. 5. That the assessing officer erred on facts and in law in not appreciating that the definition of royalty in section 9(1)(vi) of the Act is not applicable in the case of the appellant owing to Article 12(3) of the Treaty, which has a separate definition of royalty. 6. That the assessing officer erred on facts and in law in not allowing credit of TDS amounting to Rs. 32,85,560/- while finally computing the income tax liability, although the same was directed to be allowed in the assessment order. 7. That the assessing officer erred on facts and in law in levying interest)of Rs. 4,22,447/- and R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing judicial pronouncements: - i) CIT vs. Siemens Aktiongesellschaft (310 ITR 320 (Bom) ii) Viacom 18 Media (P.) Ltd. (2014) 162 TTJ 336 (Mum) iii) CIT vs. CGI Information Systems and Management Consultants (P) Ltd. (2014) 48 Taxman.com 264 (Kar) 5.3 In rejoinder, the learned A.R. for the assessee reiterated that the issue in dispute for consideration in this appeal is covered in favour of the assessee by the decision of the Coordinate Bench in the assessee's own case for A.Y. 2011-12 (supra). It was submitted that the assessee's case finds support from the decision of the Hon'ble Bombay High Court in the case of Siemens Aktiongesellschaft (supra) (viz. Q.No. 1 and para 34) and CIT vs. Nokia Network 358 ITR 259 and the decision of the Coordinate Bench of this Tribunal in the case of B4U International Holdings Ltd. 346 ITR (Trib) 62. 5.4.1 We have heard the rival contentions of both the parties and perused and carefully considered the material on record; including the judicial decisions cited and placed reliance on. As contended by the learned A.R. for the assessee, we find that the very same issue was raised in identical grounds by the assessee and was considered and adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee that the software was integral part of the machine and the transaction done with the customer was that of sale of machine and not of software. It was clarified by him that the software was separately mentioned in the invoice and its payments were also received separately for the purpose of proper assessment of custom duty etc and administrative convenience, but it was a transaction of predominantly sale of machine. He thus argued that it was a case of embedded software and, therefore, the transaction being predominantly sale of machine, the income arising there-from was not liable to be taxed in India under section 9(1)(vi). It was further submitted that since the undisputed facts on record are that assessee had no Permanent Establishment (P.E.) or business connection in India and, therefore, its business income was not liable to be taxed in India. In support of his proposition that in case of embedded software being integral part of machine, income on account of sale of software could not have been separately taxed as "Royalty" under section 9(1)(vi) of the Act, he relied upon the following judgments:- i) DIT v/s Ericsson A.B., 343 ITR 470 (Delhi); ii) DIT v/s Nokia Net ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in section 9(1)(iv) since there was no transfer of any copyright. What was transferred at the best was a copyrighted article. It was submitted by him that if we go by definition of the term "Royalty" as per article-12(3) of Indo-Israel treaty, then unless there is a transfer of copyright itself, there would not be any occasion to treat the amount of consideration as "Royalty". He took us through section 14 of the Copyright Act, to demonstrate that there was no transfer of any copyright in this case. It was submitted that in this case, no source code was supplied by the assessee. The customer had no right to use or re-use the software elsewhere, the software could not have been re-issued to someone else by the customer, the software could have been used only as integral part of the machine. Under such circumstances, the consideration cannot fall within the scope of the term "Royalty". In support of his proposition, he relied upon the following judgments:- i) CIT v/s Dynamic Vertical Software India Pvt. Ltd., 332 ITR 222 (Del.); ii) DIT v/s Nokia Networks O.Y. 358 ITR 259; iii) Dassault Systems v/s DICT, 322 ITR 125 (AAR); iv) Geoquest Systems B.V. v/s DIT, 327 ITR 001 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee towards software claimed to have been supplied as part of 'Diamonds & Gems Scanning Machine' would be liable to tax as "Royalty" in the hands of the assessee or not. 13. Brief background of the case is that the assessee is a company incorporated under the laws of Israel and is tax resident of Israel for the purpose of Indo-Israel Double Taxation Avoidance Agreement (in short referred to as DTAA or tax-treaty). The Ld. Counsel drew our attention to the tax residence certificate in this regard and these facts were on record, and no dispute has been raised by the Assessing Officer on this issue. Thus, admittedly, the assessee is a non-resident company. It appears that residential status of the assessee has been mentioned by mistake as "Resident" on the first page of the order passed by the DRP. 14. During the year, the assessee company was involved in the business of developing, manufacturing and servicing machinery, equipment, tools, supporting software, accessories, equipments, products, parts and materials for the diamond, gems and jewellery industry. It is 100% subsidiary of M/s Sarin Technologies Ltd., Israel. As a part of its business, during the year under considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, it could not have been brought within the definition of "Royalty" as envisaged in section 9(1)(vi) of the Act and, therefore, in the absence of there being any P.E. of the assessee in India, the income arising from sale of machine could not have been taxed in its hands in India. 17. We have carefully analyzed the facts of the case and arguments made by the Ld. Counsel for the assessee as well as counter arguments made by the Ld. Departmental Representative. The undisputed facts before us are that none of the customers have purchased only machine or only software. There was no customer who purchased only software. Ld. Counsel for the assessee drew our attention on various pages of the paper book to establish that the machine sold by the assessee could not be made operational or functional in the absence of operating software along with the application software. These facts were not controverted by the Ld. Departmental Representative during the course of hearing in response to a specific query put to him by the Bench. It is noted that complete details have been given by the assessee in the paper book at Page-222 and 224. Our attention was also drawn on certificate from the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form GALATEA upon learning that any user has defeated such devices. SARIN INDIA agrees to cooperate fully with GALATEA in its efforts to protect Software from unlawful or unauthorized use." 18. From the aforesaid facts and features of the transactions analysed by us, it could be concluded that the customer was not interested in the hardware alone or in the software alone. He was interested in the system as a whole and functioning of the machine. Operating software enable the machine to run and the application of software made functioning of the machine possible. It is an undisputed fact that the software which was loaded onto the hardware did not have any independent existence as such. The software supplied was ostensibly and undisputedly an integral part of the hardware. Now, since the hardware and software constituted one integrated system, part of the payment thereof cannot be earmarked towards sale of hardware and the other part towards "Royalty" for use of software as such. Thus, in our considered view, the dominant character and essence of the transaction was sale of machine by the assessee. The software, independently, had no value for the customer. He was concerned with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as "the ITAT") in several connected appeals preferred by it, all of which were rejected by the ITAT. It argues that the ITAT erred in law in not considering that the income from supply of software embedded in the hardware equipment or otherwise to customers in India amounts to royalty under Section 9(1)(vi) of the Income Tax Act and under Article 13(3) of the Double Taxation Avoidance Agreement (DTTA) between India and France, Canada, Germany, China etc. 4. Re-assessment proceedings were initiated for the year under consideration. The assessee claimed that the income declared originally in the assessment proceedings be treated as return filed in the assessment proceedings. In the re-assessment order, the AO observed that the assessee, a company incorporated in France and other concerned countries used to manufacture, trade and supply equipments and services for GSM Cellular Radio Telephones Systems. The assessee had supplied hardware and software to various entities in India. Software licensed by the assessee embodies the process which is required to control and manage the specific set of activities involved in the business use of its customers. Software also made available the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oftware is embodied in the system and the revenue accepts that it could not be used independently. This software merely facilitates the functioning of the equipment and is an integral part thereof. On these facts, it would be useful to refer to the judgment of the Supreme Court in TATA Consultancy Services Vs. State of Andhra Pradesh (2004) 271 ITR 401 (SC), wherein the Apex Court held that software which is incorporated on a media would be goods, and therefore, liable to sales tax. Following discussion in this behalf is required to be noted:-"In our view, the term "goods" as used in Article 366(12) of the Constitution of India and as defined under the said Act are very wide and include all types of movable properties, whether those properties be tangible or intangible. We are in complete agreement with the observations made by this Court in Associated Cement Companies Ltd. (supra). A software programme may consist of various commands which enable the computer to perform a designated task. The copyright in that programme may remain with the originator of the programme. But the moment copies are made and marketed, it becomes goods, which are susceptible to sales tax. Even intellectu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir status as "goods" because the Code definition includes "specially manufactured goods." 56. A fortiorari when the assessee supplies the software which is incorporated on a CD, it has supplied tangible property and the payment made by the cellular operator for acquiring such property cannot be regarded as a payment by way of royalty." 6. This Court also noticed that the ITAT had in addition relied upon other judgment of this Court i.e. Director of Income Tax V. M/s. Nokia Networks, (2013) 358 ITR 259 (Delhi). 7. In view of this settled position, this court is of the opinion that no substantial question of law arises. The appeal is accordingly dismissed" 22. Thus, from the perusal of the aforesaid judgment, it may be noted that the Hon'ble High Court has also taken into account various other judgments available such as (i) DIT v/s Ericson A.B., (Delhi High Court), (ii) DIT v/s Nokia Networks O.Y. (Delhi High Court) and (iii) Tata Consultancy Services (SC), etc. 23. Further, on this issue, judgment of CESTAT in case of Bharati Airtel Ltd. v/s Commissioner of Customs, 286 ELT 270 (Bangalore) is very useful. It has been held that embedded software which is meant for making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d parcel of hardware and similarly, in certain circumstances, hardware loses its identity as hardware and becomes part and parcel of software..............." 24. Thus, from the aforesaid judgments, it is clearly evident that Courts have held that where software is supplied predominantly as part of an equipment and if the software loses its identity and the equipment takes over the main objects of the transaction then it has to be treated as transaction of sale and purchase of machine and not as transaction for sale and purchase of software. It has already been established on the basis of facts before us that the transaction involved in this case was that of sale of diamond scanning machine. The customer had no interest in the software except to the extent of effective functioning of the machine. Thus, in view of the judgments discussed above, it has to be treated as transaction of sale of machine in the hands of the assessee and the amount bifurcated for software cannot be treated differently as consideration in the nature of "Royalty" as envisaged under section 9(1)(vi) of the Act and since the assessee has no P.E. in India, as per admitted facts on record, the amount of profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless the treaty is also amended. In the case of CIT v/s Siemens Aktiongesellschaft, supra, this proposition has been reaffirmed by the Hon'ble Bombay High Court after analysing the law in detail. 28. In the case of DIT v/s Nokia Networks O.Y., 358 ITR 259, Hon'ble Delhi High Court has further explained this position following the aforesaid judgment of Hon'ble Bombay High Court by observing that an amendment made in the provisions of the Act cannot be automatically read into the treaty. 29. Similarly, Mumbai Bench of the Tribunal in B4U International Holdings Ltd., 148 TTJ 237, has also reiterated the same position and held that in the absence of corresponding amendment in the tax treaty, the amendment made in the Act cannot be given effect to. 30. Further, in the case of W.N.S. North America Inc. v/s ADIT, Mumbai Bench of the Tribunal in ITA no.8621/Mum./2010, held as under:- "...If there is no amendment to the provision of the Treaty but there is some amendment adverse to the assessee in the Act, which provision has been specifically defined in the Treaty or there is no reference in the Treaty to the adoption of such provision from the Act, again the mandate of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternational law, while not every attempt to subvert the obligations under the treaty is a breach, it is nevertheless a failure to give effect to the intended trajectory of the treaty. Employing interpretive amendments in domestic law as a means to imply contoured effects in the enforcement of treaties is one such attempt, which falls just short of a breach, but is nevertheless, in the opinion of this Court, indefensible. The Vienna Convention on the Law of Treaties, 1969 ("VCLT") is universally accepted as authoritatively laying down the principles governing the law of treaties. Article 39 therein states the general rule regarding the amendment of treaties and provides that a treaty may be amended by agreement between the parties. The rules laid down in Part II of the VCLT apply to such an agreement except insofar as the treaty may otherwise provide. This provision therefore clearly states that an amendment to a treaty must be brought about by agreement between the parties. Unilateral amendments to treaties are therefore categorically prohibited. We do not however rest our decision on the principles of the VCLT, but root it in the inability of the Parliament to effect amendments to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to unilaterally change the terms of the treaty and annul this economic bargain. It may decide to not follow the treaty, it may chose to renege from its obligations under it and exit it, but it cannot amend the treaty, especially by employing domestic law. The principle is reciprocal. Every treaty entered into by the Indian State, unless selfexecutory, becomes operative within the State once Parliament passes a law to such effect, which governs the relationship between the treaty terms and the other laws of the State. It then becomes part of the general conspectus of domestic law. Now, if an amendment were to be effected to the terms of such treaty, unless the existing operationalizing domestic law states that such amendments are to become automatically applicable, Parliament will have to by either a separate law, or through an amendment to the original law, make the amendment effective. Similarly, amendments to domestic law cannot be read into treaty provisions without amending the treaty itself. On a final note, India's change in position to the OECD Commentary cannot be a fact that influences the interpretation of the words defining royalty as they stand today. The only manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of agreement entered into by the assessee with the customers called as End User License Agreement. We have already discussed and explained effect of the various clauses of these agreements in earlier part of the order and do not find it appropriate to discuss and reproduce the same once again for the sake of brevity. 36. It is further noted by us that the aforesaid position, as contained in the pre-amended law or as contained in Article- 12(3) of the Act tax treaty has been discussed at length by various Courts of the Country. We have discussed some of these judgments hereunder:- i) DIT v/s Infrasoft Ltd., 39 Taxmann.com 88 (Del.), Hon'ble High Court discussed and analysed these provisions in detail, in the identical facts. Some of the relevant observations of the High Court are reproduced hereunder:- "85. The Licensing Agreement shows that the license is non-exclusive, nontransferable and the software has to be uses in accordance with the Agreement. Only one copy of the software is being supplied for each site. The licensee is permitted to make only one copy of the software and associated support information and that also for backup purposes. It is also stipulated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Licensee is in breach of payment terms or any other provisions of this Agreement. All copyrights and intellectual property rights in and to the Software, and copies made by Licensee, are owned by or duly licensed to Infrasoft. 87. In order to qualify as royalty payment, it is necessary to establish that there is transfer of all or any rights (including the granting of any licence) in respect of copyright of a literary, artistic or scientific work. In order to treat the consideration paid by the Licensee as royalty, it is to be established that the licensee, by making such payment, obtains all or any of the copyright rights of such literary work. Distinction has to be made between the acquisition of a "copyright right" and a "copyrighted article". Copyright is distinct from the material object, copyrighted. Copyright is an intangible incorporeal right in the nature of a privilege, quite independent of any material substance, such as a manuscript. Just because one has the copyrighted article, it does not follow that one has also the copyright in it. It does not amount to transfer of all or any right including licence in respect of copyright. Copyright or even right to use copyri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he owner/ transferor who divests himself of the rights he possesses pro tanto. 90. The license granted to the licensee permitting him to download the computer programme and storing it in the computer for his own use is only incidental to the facility extended to the licensee to make use of the copyrighted product for his internal business purpose. The said process is necessary to make the programme functional and to have access to it and is qualitatively different from the right contemplated by the said paragraph because it is only integral to the use of copyrighted product. 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. 91. There is no transfer of any right in respect of copyright by the Assessee and it is a case of mere transfer of a copyrighted article. The payment is for a copyrighted article and represents the purchase price of an article and cannot be considered as royalty either under the Income Tax Act or under the DTAA. 92. The licensees are not allowed to exploit the computer software commercially, they have acquired under licence agreement, only the copy righted software which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DTAA, the provisions of which are more beneficial. 96. The amount received by the Assessee under the licence agreement for allowing the use of the software is not royalty under the DTAA. 97. What is transferred is neither the copyright in the software nor the use of the copyright in the software, but what is transferred is the right to use the copyrighted material or article which is clearly distinct from the rights in a copyright. The right that is transferred is not a right to use the copyright but is only limited to the right to use the copyrighted material and the same does not give rise to any royalty income and would be business income. 98. We are not in agreement with the decision of the Andhra Pradesh High Court in the case of Samsung Electronics Co. Ltd (supra) that right to make a copy of the software and storing the same in the hard disk of the designated computer and taking backup copy would amount to copyright work under section 14(1) of the Copyright Act and the payment made for the grant of the licence for the said purpose would constitute royalty. The license granted to the licensee permitting him to download the computer programme and storing it in the comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight contemplated under Section 14 of the Copyright Act, 1957 stood vested in this cellular operator as a consequence of Article 20 of the Supply Contract. Distinction has to be made between the acquisition of a "copyright right" and a "copyrighted article". 60. Mr. Dastur is right in this submission which is based on the commentary on the OECD Model Convention. Such a distinction has been accepted in a recent ruling of the Authority for Advance Ruling (AAR) in Dassault Systems KK., In re [2010] 188 Taxman 223 (AAR-New Delhi). We also find force in the submission of Mr. Dastur that even assuming the payment made by the cellular operator is regarded as a payment by way of royalty as defined in Explanation 2 below Section 9 (1) (vi), nevertheless, it can never be regarded as royalty within the meaning of the said term in article 13, para 3 of the DTAA. This is so because the definition in the DTAA is narrower than the definition in the Act. Article 13(3) brings within the ambit of the definition of royalty a payment made for the use of or the right to use a copyright of a literary work. Therefore, what is contemplated is a payment that is dependent upon user of the copyright and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DTAA, then the same cannot be denied to it by applying the provisions of the Act. The concluding para of the judgment of the Bench is reproduced hereunder for the sake of ready reference. "14. Following the view expressed by the Hon'ble Dellhi High Court in the case of DIT Vs. Ericsson AB, New Delhi (Supra), which is favourable to the Assessee, we hold that the consideration received by the Assessee for software was not royalty. The receipts would constitute business receipts in the hands of the Assessee. Admittedly the Assessee who is a non resident does not have a permanent establishment and therefore business income of the Assessee cannot be taxed in India in the absence of a permanent establishment." 41. Similarly, the Delhi Bench of the Tribunal in Aspect Software Inc. v/s ADIT, ITA no.221/Del./2013, vide its order dated 18th May 2015, interpreted the provisions of Article 12 of the tax treaty and giving benefit of the same, it was held that payment for copyrighted article would not fall within the scope of term "Royalty". Relevant Para's of this judgment are reproduced below:- Rs. 41. Before us, the Ld. Counsel for the Assessee as well as the Ld. D.R. relied on seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below:- "18. Insofar as the reliance placed by the learned Departmental Representative on the decisions of the Madras High Court and also the scope of "royalty" as given in Explanation 4 and 5 to section 9(1)(vi) brought in statute by the Finance Act, 2012 are concerned, we find that the same is not tenable for the reason that once the assessee has opted for the benefit of the DTAA, then there is no requirement for resorting to the definition and the scope of "royalty" as given in section 9(1)(vi). The said amendment cannot be read into the treaty and will not influence the definition of "royalty", as given in Article 12(3). This proposition is squarely covered by the decision of the Bombay High Court in Siemens Aktiongesellschaft (supra), the decision of Delhi High Court in Nokia Network (supra) and DIT v/s Ericson AB, [2012] 343 ITR 470. Even the decisions of Madras High Court as relied upon by the learned Departmental Representative is not applicable which is evident from the issue involved as is evident from the substantial question of law which were formulated by the High Court for adjudication. Hence, the said decisions are not applicable. 43. Thus, from the aforesaid ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Courts in various judgments. We have respectfully followed the latest judgments available before us. 47. Further, for the purpose of appreciating scope and meaning of Article 12(3) of Indo-Israel DTAA in the context of impugned transactions done by the assessee, we have also analysed the provisions of Copyright Act, 1957, in India to examine whether there was any transfer of copyright or rights therein, in the given facts of this case, by the assessee to its customers in India. In this regard, we find that section 14 of the said Act explains and defines the meaning of term copyright. Relevant part of section 14 reproduced herein: 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 authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely (a) in the case of a literary, dramatic or musical work, not being a computer programme,- (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation; (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to enable it to use the software for exclusively its own purposes or makes back-up copies purely as a temporary protection against loss, in order only to utilize the computer programme for the purpose for which it was supplied, then section 52 of the Act clearly states that it shall not amount to infringement of the copyright. Thus, in the facts of this case which we have discussed in detail above, neither there was any transfer of copyright or any rights therein nor there was any situation giving rise to any type of infringement of copyright by the customers of the assessee. Thus, in our considered view account of sales consideration received by the assessee on account of sale of machine along with it operating software would not constitute "Royalty" within the meaning of article 12(3) of the Indo-Israel DTAA. 49. Apart from that, we find that Hon'ble Supreme Court has observed time and again in some of its judgments that where two views are available, then the view favourable to the assessee should be followed, in the interest of justice and harmony. We are reminded of a recent judgment of Hon'ble Supreme Court in CIT v/s Vatika Township Pvt. Ltd., 367 ITR 466, wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case before us. We further find that latest views coming from Hon'ble Delhi High Court and other Courts are leaning more towards the views in favour of the assessee on the issue before us and, therefore, under such circumstances and in the interest of justice and fairness we have preferred to follow more recent judgments brought before us by the parties. Our approach is also in live with the guidance given by Hon'ble Supreme Court in the case of Vatika Township, (supra). 51. Before we part with, we shall like to clarify and reiterate at the cost of repetition that we have not examined the effect of subsequent amendment to section 9(1)(vi) of the Act and also whether the amount received for use of software would be "Royalty" in terms thereof for the reason that the assessee is covered by tax treaty the provisions of which are more beneficial and also for the reason that in this case transaction under consideration was predominantly and essentially of the character of sale and purchase of machine and not that of software. 52. Thus, in view of the discussion above, it is held that the amount received by the assessee was not liable to tax as "Royalty" and therefore addition m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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