TMI Blog2023 (1) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... ) in India invoking Article 12 read with Article 7 of the India-Israel - HELD THAT:- We hold that this issue is covered in favour of the assessee by the decision of Engineering Analysis Centre of Excellence Private Limited [ 2021 (3) TMI 138 - SUPREME COURT] and also by the decision of Intrasoft Ltd [ 2013 (11) TMI 1382 - DELHI HIGH COURT] Accordingly, ground nos.1 to 5 are allowed. - ITA No.7111/DEL/2019 - - - Dated:- 23-8-2022 - SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR US, JUDICIAL MEMBER For the Assessee : Sh. Dinesh Bafna, CA Ms. Chandni Shah, CA, For the Revenue : Ms. Sapna Bhatia, CIT-DR ORDER PER SHAMIM YAHYA, AM, This appeal by the assessee is directed against the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in DIT v. Infrasoft Ltd [2013] 39 taxmann.com 88, which have clearly held that there is a clear distinction between royalty paid on transfer of copyright and consideration for transfer of copyrighted article. 6. Without prejudice to above, the Ld. AO/DRP has erred in considering receipts of INR 46,80,538 taxable as royalty both as per Act and DTAA, and still taxing these receipts at the higher rate of 15% instead of 10% as per India - Israel DTAA. 7 Based on the facts and circumstances of the case and in law, Ld. AO/DRP has erred in granting tax credit of INR 7,02,081 only as against tax credit of Rs. 1,91,63,956 claimed in the return of income for AY 2010-11. 8 Based on the facts and circumstances of the case and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough series of mathematical computations and generates output in the requisite format. Tire process does not lie outside the software programme in the hardware rather it is embedded and encrusted within the software programme itself. Tire user requirement is accordingly to obtain the coded instructions in whatever medium. Computer program is a process made available by owner/creator and the payment for license to use such computer programs is for use of such process. The AO concluded the transaction to be within scope of the term Royalty as in Clause (iii) of Explanation 2 to section 9(l)(vi) of the Act and also within the meaning of royalty as defined under Article 12 of DTAA between India-Israel Treaty. The AO has proposed to tax it accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Centre of Excellence Private Limited vs CIT 432 ITR 471 (SC). 6. Per contra, Ld. DR would not dispute this proposition. 7. Accordingly, we hold that this issue is covered in favour of the assessee by the decision of the Hon ble Supreme Court in the case of Engineering Analysis Centre of Excellence Private Limited (supra) and also by the decision of the Hon ble Delhi High Court in the case of DIT vs Intrasoft Ltd. 264 ITR 329 (Del.). Accordingly, ground nos.1 to 5 are allowed. 8. Ground no.6 has not been pressed. Hence, the same is dismissed as not pressed. 9. As regards, ground no.7, we direct the AO to examine afresh and grant appropriate tax credit as per law. 10. Grounds of appeal no.8 and 9 are consequential in nature, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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