IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH - ITAT

54. Aggrieved, the Revenue is in appeal on the following grounds :1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in holding that the payment made to M/s TIBCO Software Inc.,USA for the purpose of computer software does not amount to businessreceipts and in the absence of any Permanent Establishment in India, thebusiness profit arising in the transaction is not taxable in India.2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) failed to appreciate that the payment for obtaining computersoftware is in the nature of royalty which is liable for taxation in India.5. Shri Narendra Singh, learned CIT-DR has represented the Revenueand Shri Arvind Sonde learned counsel, argued on behalf of the assessee. Bothparties agreed that the issue in question is covered by the following case laws:i) Hewlett-Packard (India) P. Ltd. vs. ITO (IT) 5 SOT 660.ii)Samsung Electronics Company Ltd. vs. ITO, ITAT BangalaoreBench, 276 ITR (ITAT) 1.iii) Motorola Inc v. DCIT (Delhi SB) 270 ITR (ITAT) 62.iv)Lucent Technologies Hindustan Ltd. vs. ITO, ITAT Bangalore Bench,Bangalore, 270 ITR (ITAT) 62.v) Airports Authority of India (AAR), 323 ITR 211.The learned DR, nevertheless relied upon the conclusions drawn by the AO andsubmitted that the Department has not accepted the decisions of the Tribunal citedherein above. Mr. Sonde, on the other hand, filed the detailed charts and case lawsin support of the contention that under identical facts and circumstances of the