TMI Blog2022 (6) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... ter software through End User License Agreement (EULA)/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India - thus duly taking note that Revenue has not disputed that the facts in this care are not identical, we set aside the order of the Revenue authorities and decide the issue in favour of the assessee. - ITA No.6018/Del./2017 - - - Dated:- 1-6-2022 - Shri Shamim Yahya, Accountant Member And Shri Chandra Mohan Garg, Judicial Member For the Assessee : Shri R. Sivaraman, Advocate For the Revenue : Ms. Meenakshi Singh, CIT DR ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : This appeal filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and in the circumstances of the case and in law, the Ld. AO / Ld. DRP erred by not following the decisions of jurisdictional High Court, which is binding in nature, merely on the ground that the said decisions has been challenged by the department. 5. On the facts and in the circumstances of the case and in law, the Ld. AO / Ld. DRP erred by not adopting the well settled principle, that if two views are possible then the view favourable to the assessee has to be considered. 6. On the facts and circumstances of the case and in law, the Ld. AO erred in initiating penalty proceedings under section 271 (1)( c) of the Act. 2. Brief facts of the case are that M/s. Kony Inc. US (hereinafter referred to the assessee ) was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rive the structure, sequence or organization of source code but only has a right to use the software for business purpose. 4. The Assessing Officer (AO) in the draft assessment order held that on the basis of the above, it is clear that the assessee s receipt from supply of software are taxable in India as royalty income both under section 9(1)(vi) of the Act and under Article 12(3) of India USA DTAA as well. In view of the above, the tax rate applicable in the assessee s case will be 15% as in the India USA DTAA on gross basis and including applicable surcharge and education cess (being more beneficial in comparison to the rate under the Income Tax Act, 1961 applicable for AY 2014-15 being 25% plus applicable surcharge and education c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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