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The ITAT upheld the co-ordinate bench decision and allowed the appeal of the assessee, holding that amounts characterized as GIT/Infrastructure charges did not constitute fees for included services (FIS) under Article 12(4)(b) of the India-Canada DTAA nor did they constitute "royalty" under Article 12(3). The Tribunal found that the payments by Indian group entities were consideration for mere use of third-party software (a copyrighted article without transfer of copyright or grant for commercial exploitation) and therefore fell outside the treaty definitions of FIS and royalty. Consequently, the impugned assessment treating the receipts as FIS/royalty was reversed.
The ITAT upheld the co-ordinate bench decision and allowed the appeal of the assessee, holding that amounts characterized as GIT/Infrastructure charges did not constitute fees for included services (FIS) under Article 12(4)(b) of the India-Canada DTAA nor did they constitute "royalty" under Article 12(3). The Tribunal found that the payments by Indian group entities were consideration for mere use of third-party software (a copyrighted article without transfer of copyright or grant for commercial exploitation) and therefore fell outside the treaty definitions of FIS and royalty. Consequently, the impugned assessment treating the receipts as FIS/royalty was reversed.
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