Receipts earned by a Netherlands tax resident from Indian...

Receipts earned by a Netherlands tax resident from Indian airline customers were examined to determine whether they constituted "royalty" taxable in India under s. 9(1)(vi) and Article 12 of the India-Netherlands DTAA. The tribunal held that royalty under the treaty requires grant of use or right to use intellectual property, or provision of a secret process or formula, which was not established on the facts since no such rights or secret process were made available to customers. It further held that amendments to domestic law cannot be automatically imported into the DTAA for characterisation of royalty. Accordingly, the receipts were not taxable in India as royalty. - ITAT