Software licence and maintenance receipts under treaty protection: no royalty, no PE, no taxability in India

The note examines taxation of software licence and maintenance receipts under the India-Canada DTAA, focusing on whether the amounts constituted royalty or fees for included services and whether the non-resident had a permanent establishment in India. It states that, on identical facts in earlier years, the same receipts had already been held not taxable, and that no material change was shown. It further records that the revenue did not prove a PE in India, the equipment-royalty premise was rejected as unsustainable, and in the absence of a PE the business income could not be taxed under section 44BB. The discussion concludes that treaty protection prevailed and the characterization issues became academic.

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Issues: (i) Whether receipts from software licences and software maintenance services were taxable in India as royalty / fee for included services under the India-Canada DTAA. (ii) Whether the assessee had a permanent establishment in India and whether the receipts were taxable under section 44BB of the Income-tax Act, 1961.

Issue (i): Whether receipts from software licences and software maintenance services were taxable in India as royalty / fee for included services under the India-Canada DTAA.

Analysis: The receipts had already been examined in the assessee's own earlier years on identical facts, and the coordinate bench had deleted the additions. The present year involved the same nature of software licence receipts and maintenance charges. The Tribunal found no material change in the factual matrix. It also held that the characterization of the receipts as royalty or fee for included services did not survive once the income was treated as business income not chargeable in India in the absence of a permanent establishment.

Conclusion: The receipts were not taxable in India as royalty or fee for included services.

Issue (ii): Whether the assessee had a permanent establishment in India and whether the receipts were taxable under section 44BB of the Income-tax Act, 1961.

Analysis: The Tribunal held that the revenue had not discharged the burden of establishing the existence of a permanent establishment in India. The finding of a permanent establishment was based on an unsustainable assumption that the software licence constituted equipment royalty. The Tribunal distinguished the authority relied upon by the revenue on facts, noting that the assessee's software was off-the-shelf software and that the material on record did not show any PE in India. In the absence of a PE, the assessee's business income could not be brought to tax under section 44BB, and the treaty's more beneficial provisions applied.

Conclusion: The assessee did not have a permanent establishment in India, and the receipts were not taxable under section 44BB.

Final Conclusion: The assessment additions were unsustainable, the assessee succeeded on the core issues, and the appeal was allowed.

Ratio Decidendi: For a non-resident covered by a beneficial tax treaty, business receipts are not taxable in India under section 44BB in the absence of a proved permanent establishment, and where that core jurisdictional requirement fails, characterization of the receipts as royalty or fee for included services becomes academic.

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