TMI Blog2023 (1) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. As consideration, the petitioner receives licensing fees from RJIL. Inter-alia, the petitioner s claim is, that RJIL has only been allowed to use the licence software and that the rights qua the same have not been transferred. It is, thus, the petitioner s submission, that it is not liable to tax qua the license fee received from RJIL. Petitioner, has also placed reliance on the judgment of Engineering Analysis Centre of Excellence Private Limited [ 2021 (3) TMI 138 - SUPREME COURT] . Respondents/revenue cannot but accept, that the concerned officer who passed the impugned order would have to take into account, the observations made by DRP in its order dated 17.05.2022, as also consider the impact of the judgment rendered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter. 4.1 To our minds, this would not absolve the respondents/revenue from the obligation to file a counter-affidavit in the matter, as time in that behalf was specially granted. 5. Since the counter-affidavit is not on record, we have heard the counsel for the parties, based on record presently available to us. 6. The principal grievance of the petitioner is, that it had sought the issuance of a certificate under Section 197 of the Income Tax Act 1961 [in short the Act ] abeit at nil rate. 7. The petitioner claims that it is a tax resident of the United States of America (USA). 8. The petitioner also states, that it has no business connection or a permanent establishment in India. 8.1 Furthermore, the petitioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns are inextricably and integrated with each other under Article 12 of the OT AA is rejected. 2.5 As regards the first set of transactions namely supply and license of software, the licensor grants the licenses to use and operate the software in India as follows Non-exclusive, non transferable and sub licensable to licensee's affiliates; unlimited; perpetual; unlimited use and irrevocable etc. As per clause 3 (License Restrictions) of the Agreement, though licensee will not (a) sell, rent, lease, distribute or sub-license the software or documentation; (b) host the software for third party services; (c) modify, alter, reverse engineer, decompile, translate or disassemble any source code of the software; (d) disclose, make availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2022) 3 SCC 321. 15. Mr Zoheb Hossain, who appears on behalf of the respondents/revenue cannot but accept, that the concerned officer who passed the impugned order would have to take into account, the observations made by DRP in its order dated 17.05.2022, as also consider the impact of the judgment rendered by the Supreme Court in Engineering Analysis. 16. In our view, the aforementioned aspects will require consideration. 17. Accordingly, the impugned order dated 29.04.2022 is set aside, with the direction that the application filed by the petitioner will be decided afresh. 17.1 The concerned authority will hear the Authorized Representative (AR) of the petitioner. 17.2 For this purpose, the AR of the petitioner will ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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