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TMI Blog2023 (1) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... n on behalf of the respondents/revenue, time was sought to obtain instructions. 2. Thereafter, the matter was listed on 18.10.2022, when the Court granted four weeks to the respondents/revenue to file a counter-affidavit in the matter, with liberty to the petitioner to file a rejoinder in the matter. 3. It is in these circumstances, that the matter is listed today. 4. We may note, that while passing the order dated 18.10.2022, a formal notice was not issued in the 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, ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. In particular, our attention has been drawn to the following observations made by the DRP: - "2.4 The submissions have been examined along with the materials on record. It is seen that the Software License Agreement dated 20.02.2017 captures two distinct transactions namely (a) supply and license of certain software and (b) providing of AMC services to the icensee. Given the same, the assessee's contention that both the transactions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill constitute business income under Article 7 of the DTAA in line with the above-mentioned decision of Hon'ble Supreme Court and will not be taxable in India in the absence of PE." [Emphasis is ours] 14. Furthermore, Mr Gajendra Maheshwari, who appears on behalf of the petitioner, has also placed reliance on the judgment of the Hon'ble Supreme Court rendered in Engineering Analysis Centre of Excellence Private Limited v. CIT (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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