TaxTMI 
TaxTMI 
2018 (4) TMI 172
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....27.01.2017, disposed of these five Bentley Nevada LLC, (Now known as Bently Nevada Inc.), Building No.7A, 6th Floor, DLF Cyber City, Phase-III, Gurgaon-122002. PAN-AADCB8118J vs JDIT, Circle-1(2), International Taxation, New Delhi. (Appellant) (Respondent) appeals in a batch of 138 appeals. In fact, 139 appeals were fixed. Both the sides elaborately argued the appeal in the case of GE Energy Parts Inc. vs ADIT (ITA No.671/Del/2011 for the Assessment Year 2001-02). It was a common submission that the facts and circumstances of the remaining 138 appeals, including the instant five appeals, were similar to those of GE Energy Parts Inc. The Tribunal disposed off the appeal of GE Energy Parts Inc. by a lead order dated 27.01.2017. The remaining ....
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....or deciding the above referred aspect, we proceed to deal with the same by highlighting the fact that this issue was not argued by the ld. AR during the original round of proceedings before the Tribunal as has been admitted by the ld. AR. 4. We espouse the issue sent back by Hon'ble High Court regarding the taxation of software income and attribution of income between hardware as well as software sales and services. Facts for the A.Y. 2002-03 as recorded in the assessment order dated 05.10.2011 are that the assessee is in the business of supply of sophisticated technology equipments, hardware and software to its various energy customers in India. The AO recorded in para 11 of the order that : 'These equipments seem to be customized to ....
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....tomers separately, or software supplied to the various customers in India should not be treated as royalty under Section 9(1) (vi). The ld. CIT(A) accepted the assessee's contentions that software without hardware was useless. The Hon'ble High Court finally held that supply of software was in the nature of articles or goods and hence income from its sale could not be treated as royalty. 6. The Hon'ble jurisdictional High Court in another decision in CIT vs. Alcatel Lucent Canada (2015) 372 ITR 476 (Del) considered the facts in which the assessee supplied hardware and software to various entities in India. The AO held that consideration for supply of software embedded in hardware equipment or otherwise to customers in India amounted to roya....