TMI Blog2022 (7) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of assessee. - HON'BLE MR. JUSTICE MANMOHAN AND HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA For the Appellant : Mr.Nageswar Rao with Mr.Akshay Uppal and Ms.Deepika Agrawal, Advocates. For the Respondent : Mr.Kunal Sharma, senior standing counsel with Ms.Zehra Khan and Mr.Shray Nargotra, Advocates. ORDER Present appeal had been admitted on the following substantial questions of law:- (i) Whether the Tribunal was right on facts and in law in holding that the income earned by the Appellant from distributing of computer software in India was royalty for the purposes of Section 9(1)(vi) of the Act? (ii) Whether the Tribunal was right in facts and in law in holding that the income earned by the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed history. The facts of C.A. Nos.8733-8734/2018 shall be taken as a sample, indicative of the points of law that arise from the various appeals before us. In this case, the appellant, Engineering Analysis Centre of Excellence Pvt. Ltd. [ EAC ], is a resident Indian end-user of shrinkwrapped computer software, directly imported from the United States of America [ USA ]. The assessment years that we are concerned with are 2001-2002 and 2002-2003. xxxx xxxx xxxx 97. The AAR then reasoned that the fact that a licence had been granted would be sufficient to conclude that there was a transfer of copyright, and that there was no justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputer software is licensed for use under an EULA, what is also licensed is the right to use the copyright embedded therein, is wholly incorrect. The licence for the use of a product under an EULA cannot be construed as the licence spoken of in section 30 of the Copyright Act, as such EULA only imposes restrictive conditions upon the end-user and does not part with any interest relatable to any rights mentioned in sections 14(a) and 14(b) of the Copyright Act. xxxx xxxx xxxx 101. Also, any ruling on the more expansive language contained in the explanations to section 9(1)(vi) of the Income Tax Act would have to be ignored if it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re allowed, and the aforesaid judgments are set aside. The ruling of the AAR in Citrix Systems (AAR) (supra) is set aside. The appeals from the impugned judgments of the High Court of Delhi are dismissed. Accordingly, the present appeal is allowed in terms of the judgment of the Supreme Court in Engineering Analysis Centre of Excellence Private Limited (supra). At this stage, learned counsel for the appellant states that other connected appeals should also be heard expeditiously. In view thereof, Registry is directed to list ITA Nos.662/2011, 660/2011, 658/2011, 659/2011, 661/2011, 657/2011, 664/2011, 665/2011 667/2011 as well as the connected Cross Objections Nos.18359/2011, 18356/2011 18354/2011 on 29th July, 2022. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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