TMI Blog2022 (7) TMI 1496X X X X Extracts X X X X X X X X Extracts X X X X ..... ements, 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 not liable to deduct any TDS u/s 195 - Decided in 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 Agarwal, Advocates. For the Respondent : Mr.Sanjay Kumar, Senior Standing Counsel for Revenue with Ms.Easha Kadian, Advocate. ORDER Present appeal had been filed by the Appellant against the order dated 05th July, 2013 passed by the Income Tax Appellate Tribunal ( ITAT ) in ITA No.6092/Del/2012 for Assessment Year 2009-10. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suppliers to resident Indian distributors or end-users. 5. These cases have a chequered 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 Excellance 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 justification fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 is wider and less beneficial to the assessee than the definition contained in the DTAA, as per section 90( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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