IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH - ITAT
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH - ITAT IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH - ITAT
20a) It is now established law that Computer software after being put on to amedia and then sold, becomes goods like any other Audio Cassette orpainting on canvas or a book and that the AO is wrong in holding thatComputer software on a media, continues to be an intellectual propertyright and that the AO was wrong in treating this computer software as a“Patent” or as “Invention”. Thus the payment cannot be termed as“Royalty”.b) That the definition of the term ‘Royalty’ in article 12(3) of the Indo-USDTAA is more restrictive than what is provided in section 9(1)(vii) of theIncome-tax Act, 1961 and that in such a situation the provisions of theDouble Taxation Avoidance Agreement override the domestic law.c) That the assessee has purchased a copyrighted article and not thecopyright itself. There is no transfer of any part of copyright.d) As what is paid is not “royalty” under the Indo-US DTAA, and as it iscovered under Article 7, which deals with “Business Profit” and as theforeign party does not have a Permanent Establishment in India, the sameis not taxable in India and hence the assessee is not required to deduct taxat source from the said payment.13. In view of the above discussion, we uphold the order of the firstappellate authority and dismiss these appeals of the Revenue.
2114. In the result, all the appeals filed by the Revenue are dismissed.Order pronounced in the open court on 29 th Oct. , 2010.Sd/-(R.V. Easwar)PresidentSd/-(J. Sudhakar Reddy)Accountant MemberMumbai,Dated: 29 th Oct., 2010.WakodeCopy to :1. Appellant2. Respondent3. C.I.T.4. CIT(A)5. DR, L-Bench(True copy)By OrderAsstt. Registrar,ITAT, Mumbai Benches,Mumbai.Wakode
- Page 5: 54. Aggrieved, the Revenue is in ap
- Page 8 and 9: 8iv) The assessee cannot provide ac
- Page 10: 103. Limited WarrantiesTIBCO warran
- Page 13 and 14: 13(i) to reproduce the work in any
- Page 15 and 16: 15It is clear from the above defini
- Page 17 and 18: 17The tests laid down in para 168 o
- Page 19: 19copyright, does not amount to use
2114. In the result, all the appeals filed by the Revenue are dismissed.Order pronounced in the open court on 29 th Oct. , 2010.Sd/-(R.V. Easwar)PresidentSd/-(J. Sudhakar Reddy)Accountant MemberMumbai,Dated: 29 th Oct., 2010.WakodeCopy to :1. Appellant2. Respondent3. C.I.T.4. CIT(A)5. DR, L-Bench(True copy)By OrderAsstt. Registrar,<strong>ITAT</strong>, Mumbai Benches,Mumbai.Wakode
Change language