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of <h1>Court rules software sales receipts not royalty under India-UK DTAA, emphasizes treaty interpretation</h1> <h3>The Commissioner Of Income Tax – International Taxation – 2 Versus Micro Focus Ltd.</h3> The Commissioner Of Income Tax – International Taxation – 2 Versus Micro Focus Ltd. - [2021] 431 ITR 136 (Del) Issues:1. Interpretation of whether receipts from the sale of software are taxable as royalty under the India-UK Double Taxation Avoidance Agreement (DTAA).2. Application of Explanation 4 to Section 9(1)(vi) of the Income Tax Act in the context of the DTAA.3. Determining if the receipts of the assessee qualify as royalty under Section 14(b)(ii) of the Indian Copyright Act.4. Assessment of whether the end users' use of software as licensees impacts the characterization of the receipts.Analysis:1. The case involved appeals under Section 260A of the Income Tax Act challenging the ITAT's order regarding the taxability of receipts from software sales as royalty under the India-UK DTAA. The Appellant-Revenue argued that the ITAT erred in its interpretation. The Respondent-Assessee contended that the consideration received did not constitute royalty under the DTAA, citing the definition of royalty in distributor and end-user agreements.2. The Appellant-Revenue raised concerns about the applicability of Explanation 4 to Section 9(1)(vi) of the Act in the context of the DTAA. They argued that the ITAT failed to consider the legislative view expressed in circulars predating the DTAA. However, the ITAT rejected this argument, emphasizing the need to interpret the DTAA provisions in line with the treaty.3. The issue of whether the receipts qualified as royalty under Section 14(b)(ii) of the Indian Copyright Act was also examined. The Respondent-Assessee contended that the payments were for the purchase of software as a product, not for the right to use the software, citing relevant case law and distinguishing between payments for products and payments for rights to use patents or copyrights.4. The characterization of the receipts in relation to end users using the software as licensees was a key aspect of the assessment. The ITAT relied on precedents such as the M. Tech India Pvt. Ltd. case to support its decision that payments made by resellers for software purchases could not be considered as royalty. The ITAT also addressed the retrospective effect of amendments, citing the New Skies Satellite BV & Ors. case to support its conclusion that no retrospective effect applied to the DTAA definitions.In conclusion, the High Court dismissed the appeals, finding that the issues raised by the Appellant-Revenue were adequately addressed by existing case law and did not present any substantial questions of law for consideration. The judgment highlighted the importance of interpreting DTAA provisions in alignment with the treaty and emphasized distinctions between payments for products and payments for rights to use patents or copyrights.
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